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 testamentary paper, and it would by no means. consist with a fair interpretation of the power, to superadd other ceremonies, such as those prescribed by the Act of 1842, chap. 293. If the parties intended that the ceremonies prescribed by that Act should be observed, why were they not specific in their direction ? Looking to the intention of the parties, it is pretty manifest, we think, that they never designed that the execution of the power should.be clogged with such. ceremonies as those prescribed by the Act of 1842. Indeed, they were quite inappropriate to the purpose intended. Besides, if the Act of 1842 has application at all, all the formalities ,and ceremonies therein ' prescribed would have to be observed. Not only the written consent of the husband, which had already been given by the deed itself, but the private examination of the testatrix by the witnesses, and the making the will sixty days before death, would have to occur to make the paper effective. Such restriction, we think, was never contemplated in the direction given for the execution of the power béfore us. In 4 Kent’s Com., 331, it is said, that “"When there are several modes of executing a power, and no directions are given, [275] the donee may select his mode; and the Courts seldom require any formalities in the execution of the power, beyond those required by the strict letter of the power.” And so in Chance on Powers, sec. 907, p. 329, it is said : “Where a party directs a power to be executed by ‘will’ simply, it may be a reasonable presumption that he means such a will as would be requisite to dispose of the like species of property; but where he prescribes certain formalities, the presumption ceases; it seems fair then to conclude, that all which he means is a testamentary act, attended with the formalities prescribed by himself.” Here, there are two modes prescribed; the one to he by will duly executed according to law, -which fairly means the general law regulating the execution of wills, the disability of coverture of the donee being in this respect dispensed with; the other by a testamentary paper in the nature of a will, to be executed in the presence of two witnesses, without any thing more. The paper produced, and which has been admitted to probate, would seem to be sufficient to gratify either mode of executing the power. Rut if it were doubtful whether the power had been propl erly executed, it would still be proper that the paper in question should he admitted to probate, provided it be shewn to have been executed, and left unrevoked, by the party whose act it professes to be. The practice of the Ecclesiastical Courts in England has always been, in reference to a paper of the character of the one before us, although real doubts might exist as to its sufficiency to execute the power, to admit it to probate ; this being deemed the safer course. In such cases, the production of the probate will not alone be sufficient to induce a Court of Equity to act upon it; for, as stated by Williams on Executors, (1 vol., 49,) “with respect to other special circumstances which may be required to give the instrument effect as a valid appointment, viz., attestation, sealing, &c., the Temporal Courts have never been contented with the judgment of the Spiritual Court; whilst, on the other hand, if the Court of Probate should reject the paper, its de [276] cision would be final; as tho Court of Construction will not proceed to the consideration of the effect of any testamentary paper, till it has been proved in the proper Ecclesiastical Court.” Tappenden vs. Walsh, 1 Phillimore, 352; Allen vs. Bradshaw, 1 Curt., 110; Tucker vs. Inman, 4 M. & Gr., 1049; Jenkin vs. Whitehouse, 1 Burr., 431; Rich vs. Cockell, 9 Ves., 376; Douglas vs. Cooper, 3 M. & K., 378; Goldsworthy vs. Crossley, 4 Hare, 140. (Decided 19th June, 1872.) The same practice, it has been .decided by this Court, in Michael vs. Baker, 12 Md., 158, is proper to be observed and conformed to by our Orphans’ Courts. The paper, therefore, even if there existed a doubt as'to its sufficiency to execute the power, should be admitted to probate, leaving the question, whether the requisites of the power had been complied with, to be determined by other tribunals. It appears, however, that the proof in the Orphans’ Court, as to the execution of the paper and its attestation, was irregular and incomplete. We shall, therefore, reverse the order appealed from, and remand the cause, that the proof by the witnesses may be more regularly taken, as to all the requisites to entitle the paper to probate. Order reversed and cause remanded.