Buchanan v. Turner

• Court: Maryland Supreme Court
• Writing for the Court: Bartol, J., delivered the opinion of the court.
• Citation: Buchanan v. Turner, 26 Md. 1 (Md. 1866)
• Decision Date: 01 November 1866
• Parties: E. KEY BUCHANAN v. DOROTHY ANN TURNER.

26 Md. 1

E. KEY BUCHANAN v. DOROTHY ANN TURNER.

Court of Appeals of Maryland

November 1, 1866

Appeal from the Orphans' Court of St. Mary's County. This is an appeal from an order of the Orphans' Court of St Mary's County, admitting to probate the will of Nannie Buchanan, the late wife of the appellant. The only question which it involves is the right of Mrs. Buchanan, as a feme covert, to make a will under the circumstances of the case, without the assent of her husband.

The marriage between the parties took place in July, 1863. In September, 1854, George Thomas, the grandfather of Mrs Buchanan, executed a deed of trust to Wm. H. Thomas for the benefit of the appellee, Mrs. Turner, then Mrs. Smith, and her children, of whom Mrs. Buchanan was one, with the proviso that the shares of any of the daughters who should marry should be invested by the trustee to their "sole and separate use," without further limitations or powers. Wm. H. Thomas assigned to Mrs. Buchanan, after her marriage a certain mortgage from Henry Sothoron to said Thomas for $4,200, in consideration of which, she and her husband, the appellant, released him from all claims under the deed of trust. That mortgage, it was admitted, constituted all the property which belonged to Mrs. Buchanan at the time of her death, and her power to dispose of it as a feme sole, by the last will and testament in question is the matter in controversy on this appeal.

The cause was argued before BOWIE, C.J., BARTOL, GOLDSBOROUGH COCHRAN and WEISEL, JJ.

S. T. Wallis, for the appellant:

It was contended below, on the part of the appellee, who is the beneficiary under the will, that as the parties were married after the adoption of the Code, the right of the wife to make testamentary disposition of her said estate enured under Article 45, sec. 2 of the Code.

The ground assumed by the appellant was, that the property was acquired by the wife before the adoption of the Code, and could not consequently be disposed of by will without the husband's assent, as required by Art. 93 of the Code, sec. 308. For the purposes of this argument, it was assumed, and it is believed rightfully, that the acquisition of the property dates from the execution of the original trust deed by Mr. George Thomas, long before the marriage, and not from the date of the assignment by the trustee to Mrs. Buchanan. Her release designates it as "in full of the amount due her by said trustee" under the deed of trust in question. Hence, her rights in respect to it arose under the deed of trust, and not otherwise, and the mortgage must be construed as an investment made by the trustee under the authority of the deed and subject to its provisions.

It will be contended that the estate sought to be devised by the deceased, being thus trust property, limited to her sole and separate use, without any provision as to alienation, was, at the time of its acquisition, subject to the right of testamentary disposition only in accordance with the Act of 1842, ch. 293, sec. 6, which is now sec. 308 of Art. 93 of the Code, and which governed the testamentary rights of femes covert as to all their estates. It will be argued that this section applies by its terms, as well as in pursuance of the general policy of our legislation, to trust property in reference to which married women have no specific power of alienation, precisely as to their general property and that the consent of the husband is, by its force, required in either case wherever the wife devises.--That it is intended so to continue as to property acquired before the adoption of the Code, is made manifest by the provision in sec. 308 of Art. 93, that it shall not apply to property acquired after its adoption. The first section of Art. 45 is, in fact, but a reproduction of the Act of 1853, ch. 245, and co-existed with the Act of 1842 down to the adoption of the Code, which seems to show that the consent of the husband to the exercise of the testamentary rights by the wife, which is imposed by one statute, was intended to apply to all the property of the wife specified in the other; that is to say, all property belonging to her at her marriage or acquired afterwards. Upon proper principles of construction, it will be argued that it still continues so to apply as to all such property acquired before the adoption of the Code, and without reference to the date of the marriage.

Thos. S. Alexander, for the appellee:

Where the property was acquired by the wife prior to the adoption of the Code, the marital rights of the husband then vested could not be affected by subsequent legislation. Cooke v. Husbands, 11 Md. 505, 506. 1 Code, "Rules of Interpretation."

Bartol J., delivered the opinion of the court.

In Michael v. Baker, 12 Md. 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, but 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, by the agreement of counsel filed in the cause that the only property owned by the...