Midland Building & Loan Ass'n v. Hetrick

²⁴⁶ Adkins, J., delivered the-opinion of the Court.- 'These cases were consolidated by agreement and tried together on the. same evidence and argued together here. In both, the-question was whether .the power of disposition in a widow derived from the- will of her- deceased husband included the power-to execute a mortgage for-the purpose of paying the debts of a second husband. 'Clarence P. Hetrick, in the residuary clause of his will, provided as follows: “All the rest'and residrie o'f my property real and personal, I give, devise and bequeath to my present wife, Effie A. Hetrick, for her and her two children’s support during her natural life and on her death I give and devise afid" bequeath wkat'rehiains of said property to her said two' children, to wit: Blaine Hetrick and Lawrence Hetrick. During my wife’s life she may make any changes she may-think proper by sale-or otherwise, and for that purpose she-is-hereby'empowered to ’make,-■ execute and deliver all deeds, articles'-'of agreement -dr- other - papers, necessary and proper to efffecksucE changes.”' • The; property -involved- consisted of 'two- parcels of real estate in- the town of-Accident,- .Garrett- County, one improved by a large frame- building ¡formerly used as a-hotel, and-the other an adjoining unimproved lot.- -Shortly after-the-death of ■ the ■ testator, kis-widow ■ married-¡Harry. Listony .to - whom she- sold, the vacant-lot,- on which-he -built- a garage at a cost of about.$8,0.00, -of.-udi-ick. he was able to pay $4j500.-frem his own-funds, : ¡Before the;completion of-the building, bills having been presented by mechanics .and materialmen for payment of amounts due them, he sought a loan of $8,500 on the.garage property from.-the Midland Building &,Loan Association, one of the appellants..

On-an-,examination of-the property the association declined to make the loan unless the hotel,.property was .inclpded in-the mortgage.: At .first-his wife objected, but finally consented. At the instance of .the association, a petition to the Orphans’ Court of Garrett County was.,prepared by it's attorney,; Ifr. T.. L. Richards, and signed by Mrs. Liston as executrix of;the will of,her ¡former, husband, in which the petitioner recited the above provision ²⁴⁷ of the-will; stated--that she and her husband desired to mortgage to said association the hotel property, and-the adjoining-lot, which had been conveyed to the husband; that she had the power under the will to sell or mortgage any of the property which passed to her and her -children by said will, and that she had qualified as the guardian of the children, and, in order to prevent any possible question now -or hereafter of her power to make the mortgage and to prevent any claim or dispute from said sale or otherwise, asked the court- to grant her permission to make said mortgage; that it would be to the benefit and advantage of the children for petitioner to-execute said mortgage as “the money is to be used exclusively for the erection of a public garage building on the lot adjoining the Rios Hotel and being the same lot which sho deeded to her husband”; and that the said garage and business incidental thereto would provide a means of livelihood for the family, including the children, and would be a good investment for the children.

The orphans’ court passed an order authorizing her as executrix and guardian to join with her husband in the mortgage. Tn passing, two things are to be noted: (1) That the order of the orphans’ court gave no efficacy to-the mortgage; (2) that the