18 D.C. 52 (D.C.D.C. 1888), Emmons v. Garnett

Citation:18 D.C. 52
Opinion Judge:Mr. Justice MERRICK
Party Name:S. F. EMMONS v. H. W. GARNETT. Two Cases.
Attorney:Messrs. ANDREW C. BRADLEY and LINDEN KENT for Emmons (appellant): Messrs. WALTER D. DAVIDGE, CONWAY ROBINSON, JR., and W. V. R. BERRY for Garnett (appellee). Decree reversed in part and affirmed in part, with an allowance of his costs to the appellant.
Case Date:November 26, 1888
Court:Supreme Court of District of Columbia
 
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Page 52

18 D.C. 52 (D.C.D.C. 1888)

S. F. EMMONS

v.

H. W. GARNETT.

Two Cases.

Supreme Court, District of Columbia.

November 26, 1888

1. The appointment of a receiver by a court of equity for the temporary care of property pending a controversy in the Orphans' Court over the right of administration is not an appealable order.

2. Under the Married Woman's Act of this District a wife is capacitated to make a will without the consent of her husband; what the will is to operate upon is another question and one which the Orphans' Court has no jurisdiction to pass upon; its power extends only to inquire into matters which relate to the probate, such as testamentary capacity, fraud, undue influence, and the due execution of the instrument.

3. When the probate is granted, and not before, the authority to determine what passes under the will is devolved upon the courts of law and equity.

4. The fact that the husband does not object to the probate of a will executed by his wife does not, since the passage of the Married Woman's Act, estop him from afterward raising the question as to what property passed by the will.

5. Where a caveat has been filed to the probate of a will and issues have been framed to be sent to the Circuit Court for the trial, it is error for the Orphans' Court to direct who shall stand upon the record as plaintiff and who as defendant; that duty belongs to the Circuit Court.

6. While this court does not lay down the rule as absolute in all cases that the caveator shall be plaintiff and the caveatee defendant, yet, as a general rule, it is the proper mode of procedure for the caveator to open and close to the jury.

This case and The Matter of the Estate of Weltha A. Emmons, deceased, being cases relating to the same subject-matter, were heard and decided together. The first an appeal from the Equity Court, and the other from the Orphans' Court.

THE FACTS are stated in the opinion.

Messrs. ANDREW C. BRADLEY and LINDEN KENT for Emmons (appellant):

The testamentary power of the wife with respect to this property was dependent upon the assent of the husband to the will, either before or after the same was made. The court could only assume jurisdiction upon such alleged assent, which is not made in this case. Kurtz vs. Sayler, 20 Pa. 205; Schouler H. and W., Sec. 458; Compton vs. Pierson, 28 N. J. Eq., 229; Cutter vs. Butler, 25 N. H., 343, 359.

A married woman has no power to bequeath property except with the assent of her husband. Vreeland's Executor vs. Rynor, 26 N. J. Eq., 160; Beale's Executor vs. Stone, 26 N. J. Eq., 372; Osgood vs. Breed, 12 Mass. 525; Cassel's Adm'r vs. Vernon, Ex., 5 Mason 334; Parker vs. Parker, 11 Cush. 519, 524-528; Judson vs. Luke, 3 Day 318; Van Winkle vs. Schoonmaker, 15 N. J. Eq., 384.

One of the questions entering into the consideration of whether or not the will of a married woman should be admitted to probate, is the property testamentary property of the wife. Cutter vs. Butler, 25 N. H., 359.

It is submitted that the will of Mrs. Weltha A. Emmons, a married woman, could not be admitted to probate until the questions raised as to her testamentary capacity and the assent of her husband to the will had been determined, and that the caveator was entitled to an issue to try the same, and that the Orphans' Court erred in denying the same.

The onus probandi , where the issue is testamentary, capacity, has always been on the caveator, in recognition of the principle that every one is presumed to be sane.

The caveators are the actors originating the proceedings, and are entitled to be placed on the records as plaintiffs. Higgins vs. Carleton, 28 Md. 143; Brooks vs. Townsend, 7 Gill 10; Edlin vs. Edlin 6 Md. 292; Tyson vs. Tyson, 37 Md. 582; Hickley's Test. Law, Sec. 625; Carrico vs. Kerby, Kerby, executor, 3 Cr. C. C., 594.

Messrs. WALTER D. DAVIDGE, CONWAY ROBINSON, JR., and W. V. R. BERRY for Garnett (appellee).

The Probate Court decides merely on the factum of the will and that it was the testamentary act of the testator; when probate is granted , authority to determine what passes under the will is devo...

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