Buchanan v. Turner

Bartol, J., delivered the opinion of this Court. In the case of Michael vs. Baker’s Ex., 12 Md. Rep., 158 , it was held that the Orphans’ Court in passing upon the question of admitting to probate the will of a married woman, were not required to decide what property would pass under the will, such inquiry properly belonging to another forum, hut the form and attestation of the instrument being sufficient, the duty of that Court would be to admit it to probate. By'the probate nothing is determined but the factum of the will, not the right of disposal, and this for the reason that “perhaps if no probate were granted the person to whom the property is left might be unable to recover it.” Under that decision, the will in this case being executed and attested in conformity with the Code, Art. 93, secs. 300, 301, and Art. 45, secs. 1, 2, there was ■no error in admitting it to probate. It appears, however, ⁵ by the agreement of counsel filed in the cause that the only property owned hy the testatrix at the time of her death, was the property in the mortgage of Henry Soihoron offered in evidence.

That property was acquired under the deed of trust executed in September, 1854, hy George Thomas, her grandfather, and was held hy her to her sole and separate «se,,at the time of her marriage with E. Key Buchanan, the caveator, in July, 1863, and the question argued by counsel, which we have been called on to decide, is whether the will is a valid and sufficient instrument to dispose of such property. In the case of Cooke vs. Husbands, 11 Md. Rep., 492 , decided at the December term, 1857, it was for the first time definitively declared to he law in Maryland, “that whore property is given to a feme covert to her separate use simply, without restricting her power of disposing of it, or prescribing the mode in which that power' is to he exercised, she may act in reference to the disposition of it as a feme sole. ” This decision was followed in Michael vs. Baker, 12 Md. Rep., 158 , Chew’s Adm’r vs. Beall, 13 Md. Rep., 348 , and in other cases, and must be considered as the settled law of the State. So stood the law before the adoption of the Code. The property of the testatrix being limited to her sole and separate use under the deed of her grandfather, without any restraint upon her power of disposition, it follows from the decisions cited that she had the power to pass it hy her will made and attested as if she were a feme sole, such property not coming within the provisions of the Act of 1842, ch, 293, sec. 6, that section referring only to the general property of tho wife, not held by her to her sole and separate use.

We now come to consider what change, if any, has been made by the Code in the pre-existing law on this subject. It had been decided by the Court of Appeals in Schindel ⁶ vs. Schindel, 12 Md. Rep., 108 , Ibid., 204, that under the several Acts of 1841, ch. 161, 1842, ch. 293, and 1853, ch. 245, and the 38th sec. of the 3rd Article of the Constitution of 1851, while the property, real and personal, of a married woman, not limited or held to her sole and separate use, was protected from liability for the debts of her husband, his