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 the appropriate forum, their title to the property it professes to pass. The first objection, therefore, is no ground for refusing probate to this instrument. The other objections are undue influence and want of testamentary capacity. The whole property disposed of is given absolutely to the caveator, who is the only child and sole heir-at-law of the testatrix. There is no proof of undue influence, and, indeed, the disposition of the property is such as to exclude the idea that its execution was procured by the exertion of any such influence. The remaining question of testamentary capacity is one purely of fact, depending.upon the evidence contained in the record. The party named as executor was examined as a witness, upon his own offer, and in his own behalf as eaveatee, [17] and exception is taken to his competency. Before the Act of 1864, ch. 109, he would have been incompetent, as well by reason of interest in the result of the trial as of being a party to the proceedings. But both these objections are expressly removed by the first section of that Act, and he is clearly a competent witness, unless excluded by the second section, as modified by the Act of 1868, ch. 116. This, so far as it touches the present question, provides that “ when an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action, or other proceeding, either party may be called as a witness by his opponent, bnt shall not be admitted to testify on his own offer, or upon the call of his co-plaintiff or co-defendant.” It is sufficient to dispose of the precise point which has now arisen to say, without adverting to other considerations, that this witness was not a party to the proceeding in the capacity of executor. The will had not been admitted to probate, no letters had been granted to him, and the very question at issue was, whether he should be an executor or not. He was named executor in a paper whose existence and validity as a will was the subject of dispute, and simply stood in the proceedings as a party caveatee whose interest, and perhaps duty, it was to sustain the instrument. He occupied no different relation to the proceedings, either in point of interest or position as party, than if he had been named a devisee or legetee in the will, and for that reason had been made a party caveatee. We are entirely satisfied of his competency, and his testimony must be considered with the other evidence in the cause. After a careful examination of all the proof in the record on that subject, we are satisfied Mrs. Ludeking was possessed of testamentary capacity at the túne she executed this will. No valuable result, in the way of a precedent for other cases, wmuld be attained by extended comments on the evidence, and, therefore, none need be made. Such being our judgment upon the facts, and none of the objections to the probate of [18] this paper being sustained, it becomes quite unnecessary to express any opinion upon the question whether, under the circumstances of the case, the appellant ivas entitled to interpose this caveat. The order appealed from must be affirmed. (Decided 10th January, 1870.) Order affirmed.