27 Md. 391 | Md. | 1867
delivered the opinion of this Court.
This is. an appeal from an order of the Orphans’ Court of Frederick County, granting letters of administration on the estate of Elias Grove, deceased, to the appellee, his widow.
The deceased died without-children; the appellants are the children of his deceased sister,- and claim as next of kin.
By the Code, Art. 93, sec. 19, it is provided, “ if there be a widow and no child, the widow shall be preferred.” This case comes within this provision, and the appellee is entitled to letters of administration ; unless there be something in the proof to take the case out of -the operation of this provision of the Code. Cook vs. Carr, 19 Md. Rep., 1.
The appellee and Elias Grove were married in February, 1835 ; a few months afterwards she separated from him, and continued always thereafter to live in a state of separation. The causes which led to the separation are not disclosed in the record ; but it appears both from the petition and answer to have been by mutual consent.
The separation alone does not deprive the wife of her share in her husband’s personal estate, or her right to administer. The marriage not having been dissolved, she is his widow still. Slatter vs. Slatter, 1 Younge & Coll., (Ex. R.,) 28 ; Lambell vs. Lambell, 3 Haggard, 568 ; Chappell vs. Chappell, 7 Eccl. Rep. 451.
The appellants contend that the post-nuptial arrangement, evidenced by the bond of John Stone and George Feaga of the 7th November, 1835, and testified to by the witness Peter Fulrat, precludes the appellee from all right to participate in the estate of her deceased husband, and consequently she is not entitled to administration under the decisions in Ward vs. Thompson, 6 G. & J.,
Rut at the time that settlement was made, the appellee being a- married woman, had not the capacity to make a valid and binding contract, except as to her separate estate. Burton et al. vs. Marshall, 4 Gill, 488 ; Norris vs. Lantz & Hyde, 18 Md. Rep., 268 ; see also Slatter vs. Slatter, above cited. Under these decisions, the contract of the appellee must he held to he null and void, and it cannot he enforced against her, or operate to deprive her of her share in her husband’s estate.
It is no legal disqualification of the appellee to administer, that she is unable to read or write.
The right of administration is conferred on her by the Code, and the Orphans’ Court is not vested with the discretion to deprive her of that right, for such cause. Cook vs. Carr, 19 Md. Rep., 1.
Order affirmed.
