32 Md. 9 | Md. | 1870
delivered the opinion of the Court.
This appeal is from an order of the Orphans’ Court of Baltimore City dismissing a caveat filed by a lunatic son, by his committee, to the probate of two papers, purporting to be wills of his mother, executed, the one on the 15th of July, 1863, and the other on the 25th of April, 1864. The latter contains a clause revoking all former wills, and if entitled to probate, the case before us is determined.
At the time this instrument ivas executed, the testratrix was a married woman, and the first objection is that it was not made with the assent of her husband, and that the property thereby disposed of was acquired by her before the Code was adopted. Upon its face it professes to dispose of the personal estate and effects of the testatrix, and of a lot of ground, with improvements, the legal title to which she derived by a deed executed in 1863. It is contended by the appellant that she acquired the entire equitable interest in this lot prior to the Code, and the recitals in the deed, that it was purchased in 1851, with her money, though the title was then taken in the name of another, are relied on to establish this position. The appellee takes a different view of the subject, and insists the acquisition was solely by the deed of 1863. A controversy of this character cannot be settled in this case, because, whether the property passes under the will or not, is a question remitted to other tribunals for decision. The Orphans’ Courts have power to take probate of wills, but not to adjudicate questions of title dependent upon their operation and effect, or to decide upon the right of disposition. By the law of this State a married woman is competent to dispose, by a will made without her husband’s assent, of property which she was entitled to receive and bold to her sole and separate use, whether before or since the Code, if the
The other objections are undue influence and want of testamentary capacity. The whole property disposed of is given absolutely to the caveator, who is the only child and sole heir-at-law of the testatrix. There is no proof of undue influence, and, indeed, the disposition of the property is such as to exclude the idea that its execution was procured by the exertion of any such influence.
The remaining question of testamentary capacity is one purely of fact, depending.upon the evidence contained in the record. The party named as executor was examined as a witness, upon his own offer, and in his own behalf as eaveatee,
After a careful examination of all the proof in the record on that subject, we are satisfied Mrs. Ludeking was possessed of testamentary capacity at the túne she executed this will. No valuable result, in the way of a precedent for other cases, wmuld be attained by extended comments on the evidence, and, therefore, none need be made. Such being our judgment upon the facts, and none of the objections to the probate of
Order affirmed.