12 Md. 158 | Md. | 1858
delivered the opinion of this court.
The only question presented by this appeal is, whether the paper purporting to be the last will of Catharine Michael, is entitled to be admitted to probate, as a valid disposition or appointment.
At the time of its execution the testatrix was a married woman, and continued so till the time of her death; the will was not made and attested in conformity with the provisions of the act of 1842, ch. 293, and is not entitled to be admitted to probate, unless the same was made in virtue of her rights under the ante-nuptial agreement between her and her husband the caveator.
Many cases have been cited to show the principles, by which courts in England and in this country have been governed, in deciding upon the construction of powers and their execution. We have examined them carefully; but in our view of the case before us, it is not necessary for its determination, to review the various decisions to .which our attention has been directed.
The case comes before us on appeal from the orphans court for Frederick county,.which is a court of limited jurisdiction. It is authorised under the act of 1831, ch. 315, to take probate of wills disposing of real and personal estate.
In Tappenden vs. Walsh, 1 Phillimore, 352, where the question was on admitting to probate the will of a married woman, it is said, “by the law as it stands at present, a married woman who possesses separate property, may dispose of it without the consent of her husband. The probate of this court does not decide upon the right of disposal, it decides merely on tha factum of the instrument; perhaps if no probate were granted by this court, the person to whom the property is left might be unable to recover it.” And in the same case the learned judge refers to the case of Bowes vs. Bowes, decided in 1801, when it was laid down as the law governing the ecclesiastical court in such cases, “that it would not look nicely into the power of the wife, as that right belonged to another court.” That rule we consider as applicable to the orphans courts in Maryland, and in reviewing their judgment passed in this case, as an appellate tribunal, it is unnecessary to express any opinion as to the extent to which the powers vested in the testatrix under the agreement, may have been executed by her will. Such questions belong properly to the courts of law and equity, which are vested with ample jurisdiction to hear and determine them.
In this case the ante-nuptial agreement, which was produced before the orphans court, the execution of which was admitted, abundantly showed that, Mrs. Michael was empowered to make a will notwithstanding her coverture. Besides it appears from the agreement, that she was entitled to receive and hold absolutely to her sole and separate use, free from the marital rights of her husband, certain funds specified in the agreement.. Under her will, such funds would pass, although the power of disposing of them may not be expressly conferred upon her by the agreement. This is the well established doctrine in England, and it is now settled law in Maryland; see Cooke vs. Husbands, 11 Md. Rep., 492, and the authorities there cited.
The agreement also shows, that Mi's. Michael had a power to dispose, by will, of certain real estate therein mentioned. Whether the will is a sufficient execution of that, power, is not
The court erred in admitting to probate the articles of agreement, they are not a testamentary paper, and form no part of the will.
In order that the order of the orphans court may be corrected, and made conformable to the opinion of this court, the cause will be remanded.
Cause remanded.
