Heath v. Withington, 60 Mass. 497

Heath v. Withington

60 Mass. 497 | Mass. | 1850

Metcalf, J.

In the indenture executed before the marriage of the appellant and his late wife, it was stipulated by the trustee therein named^ that he would, upon her decease, assign, transfer, and pay over, whatever of the trust property should remain in his hands or under his control, to such person or persons as she should in writing appoint to receive the same. She made an appointment in writing, according to the terms of the indenture. And the appointment is not the less valid by reason of its being also under seal and in the form of a last will. 2 Roper on Husb. & Wife, 191, 192.

*500The validity of a power of appointment in a married woman, reserved by her or conferred on her, before marriage, with the assent of her husband, has been recognized and adjudged in this commonwealth. And it is also well settled, that when the power is exercised by a testamentary paper, such paper should be approved and allowed as such by the court of probate. Stone v. Forsyth, 2 Doug. 707; Newburyport Bank v. Stone, 13 Pick. 423; Osgood v. Breed, 12 Mass. 525; 4 Burn’s Eccl. Law, (9th ed.) 65.

The objection made by the appellant to the probate of the instrument now in question is, that it is a will, and therefore void, by St. 1842, c. 74, which prescribes the conditions on which alone the wills of married women may be validly made; those conditions not having been complied with in this case. The answer to this objection is, that the instrument before us is not to have the effect of a will, but is an appointment in writing, to guide the conduct of the trustee. Its effect, if proved and allowed, is not that of a will in common cases. The appointees will take, not as legatees of Mrs. Heath, but as grantees or donees of the trustee in whom the property was vested by the indenture.

The St. of 1842, c. 74, enables a married woman to dispose of her separate property by will, on condition (among other things) that her husband shall give his written assent thereto, and indorsed thereon.' Instruments executed conformably to the provisions of this statute will hhve the effect of other wills; and the legatees or devisees under them will derive title immediately from the testators. But the statute has not taken away the power which married women before had to dispose of their property, with their husbands’ consent, by an appointment in the nature of a testamentary disposition. It has merely conferred an additional power.

We are therefore of opinion that the instrument in question was rightly admitted to probate. But as it purports to direct the disposition of some property of which the deceased had no legal power of disposition, without the consent of her husband, the decree, if the other objections to the instrument are ultimately overruled, will need tc be reformed, so as to confine *501the operation of the instrument to the property, which was conveyed to the trustee by the indenture, or was in his hands or under his control at the time of Mrs. Heath’s decease. Such a special probate is allowable and proper; as was decided in Deane v. Littlefield, 1 Pick. 239. In the case of Temple v. Walker, 3 Phillim. 400, Mr. Justice Bay’ey said, “ When a will is made by a feme covert, under a power, the usual course is to give a probate limited according to the power.”

After the foregoing opinion was delivered, the appellant waived his rights to be heard as to Mrs. Heath’s sanity, and as to undue influence exerted upon her, and thereupon a decree was entered “ that the instrument offered as the last will and testament of Julia Ann Heath be approved and allowed, and have full power and effect as .such touching all the property and rights of property, which by law or equity were or might have been subject to her disposal by way of appointment, creation, or declaration of trust, or otherwise, under or by virtue of the antenuptial contract or settlement, which forms a part of the agreed statement of facts in this case; ” and the case was remitted to the probate court for further proceedings.