Schull v. Murray

Miller, J., 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 ¹⁶ instrument creating the separate estate is sileut as to the mode of disposition, and she has also the power of devising, as if she were a féme sole, all the property, real and personal, which belonged to her at the time of marriage, if that took place since the adoption of the Code, in 1860, and all the property which she may have acquired or received since that period by purchase, gift, grant, devise, bequest, or in course of distribution. Cooke vs. Husbands, 11 Md., 492; Code, Art. 45, secs. 1, 2, and Art. 93, sec. 308. Capacity to make a will without consent of her husband being thus conferred upon a feme covert, a will executed by her, professing to dispose of her property, must be admitted to probate in the same manner as that of any other person capable in law of making a will, and the jurisdiction of the Orphans’ Court is limited to inquiries which relate to the probate alone, as in other like cases, such as testamentary capacity, fraud, undue influence, and the due execution of the instrument.

When probate is granted, authority to determine what passes under the will is devolved upon the Courts of Law and Equity, tribunals which are clothed with ample jurisdiction to decide that question. Michael vs. Baker, 12 Md., 169 . Probate is indeed necessary to enable parties claiming under the will to assert, in