Schley v. McCeney

Alvey, J., 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. ²⁷³ Mrs. Higgins, in 1859, execnted a testamentary paper, attested by three witnesses, and which specifically refers to the power in the deed, and professes to be in execution of it. This paper is in due form as a will to pass real estate, as prescribed by the general law of the State upon the subject.

It was not executed, however, with the formalities and under the restrictions as prescribed by the Act of 1842, ch. 293, empowering fénica covert to dispose of their property, held in their own right. 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 ²⁷⁴ cial and particular mode prescribed by the Act of 1842, chap. 293, sec. 6, for the execution of wills by fémes covert. But it must be observed that according to the direction, the power could be executed either by a will duly executed according to the modé prescribed by law for the execution of walls generally, or by.any paper testamentary in the nature of a will, provided the same be executed in the pi’esence of at least two persons. Now> according to the first mode designated for the execution of the power, that by will duly executed according to law, no less than three witnesses would be sufficient, as to the real estate; and the law was not altered in this respect by the Act of 1842, ch. 293, as applied to wills of fémes covert. But by the other mode designated, that by paper testamentary in the nature ,of a will, executed in the presence of two witnesses, the parties to the deed have prescribed the particular ceremony for the execution of the