Ex parte Warfield , 11 G. & J. 23 ( 1839 )

Dorsey, J.,

delivered the opinion of the court.

No grounds being stated by the Chancellor for the dismissal of the appellants’ petition, in reviewing his order, we are by no -means certain, that the abbreviated record now before us .presents all the facts which may have influenced his determination. But whether the record, in this respect, be imperfect or not, we cannot look beyond it; and the Chancellor’s order must stand or fall, according to its merits, in the aspect in which it is now brought before us.

In inducing the wife to unite in the petition, there are no circumstances to give rise to the presumption, that fraud, unconscionable advantage, or undue influence, had been practised upon her. It would appear then, that the order must have been passed either because no assent of the wife would have warranted the granting of the prayer of the petitioners; or that the' assent given was not sufficient for that purpose; or that the petition did not state that Caroline B. Warfield had arrived at the age necessary to give validity to her assent. Upon neither of these grounds do we think the order can be sustained. The will of Matthias Hammond, under which the fund in question became the property of the wife, directed it to be paid to her, on her day of marriage or maturity. It contemplated no settlement to her separate use; and although the fund, by 'a contingency not contemplated by the testator, had been brought into the Chancery Court, by the consent of the wife properly given; the husband was entitled to receive it wfithout any portion of it being retained for investment, as the separate estate of the feme covert. If the evidence of the wife’s assent which accompanied the petition, was not satisfactory to the chancellor, instead of the immediate dismissal of the petition for such defect, he ought to have retained it until such an examination of the feme covert could have been had under his direction, as would have satisfied his conscience, as to the character of her consent. If the petition was dismissed because it did not state Caroline B. Warfield’s arrival to the age of majority, we do not think the order of dismissal can be sustained on that ground. Sufficient appeared in the record to impair, if not to repel, the presumption of her continued infancy. Her father’s will was admitted to probate in 1819. The application in her behalf, for the investment of the fund in question, filed in 1831, states her then age to be about seventeen; and the petition of Warfield and wife was-filed in October 1838. Under such circumstances, if the Chancellor entertained doubts, on the score-of her age, as- to the competency of Mrs. Warfield to give the assent in question, instead of instantaneously dismissing the-petition, he should have held it over, and given the petitioners-an opportunity of removing by proof all doubts upon the subject.

This-court will sign a decree reversing the order appealed from, and remanding the cause to the Court of Chancery, that such further proceedings may be bad therein as the nature of the case may require.

ORDER REVERSED AND CAUSE REMANDED».