36 Md. 266 | Md. | 1872
delivered the opinion of the Court.
The appeal in this case is from the Orphans’ Court of Anne Arundel county, and the only question is, whether the will, or paper testamentary in the nature of a will, of Mrs. Eliza Higgins, wife of James Higgins, executed under a power, contained in a deed of settlement, was properly admitted to probate.
The property embraced by the deed, consisting of both real and personal, was that of the wife before marriage, and was conveyed to the husband in 1849, upon the following trusts, subject to the power of disposal by the wife: 1st, For the separate use of the wife during the marriage; 2d, after her death, if she should die before her husband, to the use of the husband for life; 3d, after the death of the husband, if he survived the wife, to the use of the children of the wife; 4th, if the wife should die without children, then to the use of the husband absolutely and in fee; 5th, but if the wife should survive the husband, then in trust for her absolutely and in fee; “with the further power to the said Eliza,, by will duly executed according to the mode now prescribed for the execution of wills, or in the mode which may be prescribed at the time of the execution of her will, or by any paper testamentary in the nature of a will, provided the same shall be executed in the presence of. at least two persons, to change the limitations, trusts and uses” theretofore mentioned, to take effect after the death of the husband, and dispose of, devise and bequeath the property as she might think fit.
Mrs. Higgins died in 1867, leaving this will or testamentary paper unrevoked, without children, her husband surviving her. The paper was lodged in the Orphans’ Court for probate, and to which was filed a caveat by the appellant, the devisee, legatee and executrix of James Higgins, who died in the year 1870. The paper was admitted to probate, and it is from the order admitting it to probate that this appeal is taken.
There can he no question made of the right of a féme covert to execute a power, whether collateral, appendant or in gross, and in no case is the concurrence of the husband necessary, unless made so by the power itself. The law prescribes no particular ceremonies to be observed in the execution of a power ; but the terms of the power may direct it to be executed by a note in writing, or by will, or deed, or may prescribe any ceremonies which the will or caprice of the party creating it may think proper, all of which must bo complied with, however unessential or unimportant they may appear to be in themselves. 2 Washb. Real Prop., 317; 1 Sugden on Pow., 211; Hawkins vs. Kemp, 3 East, 410, 430.
The objection in this case to the probate of the paper by which the power was attempted to bo executed, as we understand it, does not go to the nature of the paper itself, nor to the competency of the donee of the power to execute it, but to the manner of its execution. It is insisted that the testamentary paper, referred to in the power, to be entitled to probate, should bo execnted according to the mode prescribed ior the execution of wills; and that this direction moans the spe
In 4 Kent’s Com., 331, it is said, that “"When there are several modes of executing a power, and no directions are given,
Rut if it were doubtful whether the power had been propl erly executed, it would still be proper that the paper in question should he admitted to probate, provided it be shewn to have been executed, and left unrevoked, by the party whose act it professes to be. The practice of the Ecclesiastical Courts in England has always been, in reference to a paper of the character of the one before us, although real doubts might exist as to its sufficiency to execute the power, to admit it to probate ; this being deemed the safer course. In such cases, the production of the probate will not alone be sufficient to induce a Court of Equity to act upon it; for, as stated by Williams on Executors, (1 vol., 49,) “with respect to other special circumstances which may be required to give the instrument effect as a valid appointment, viz., attestation, sealing, &c., the Temporal Courts have never been contented with the judgment of the Spiritual Court; whilst, on the other hand, if the Court of Probate should reject the paper, its de
The same practice, it has been .decided by this Court, in Michael vs. Baker, 12 Md., 158, is proper to be observed and conformed to by our Orphans’ Courts.
The paper, therefore, even if there existed a doubt as'to its sufficiency to execute the power, should be admitted to probate, leaving the question, whether the requisites of the power had been complied with, to be determined by other tribunals.
It appears, however, that the proof in the Orphans’ Court, as to the execution of the paper and its attestation, was irregular and incomplete. We shall, therefore, reverse the order appealed from, and remand the cause, that the proof by the witnesses may be more regularly taken, as to all the requisites to entitle the paper to probate.
Order reversed and cause remanded.