Binnerman v. Weaver , 8 Md. 517 ( 1855 )

Le Grand, C. J.,

delivered the opinion of this court.

The appellees filed in the orphans court for Baltimore city a petition stating, that a certain Caspar Weaver, by his last will and testament, appointed his wife, Catharine, his executrix, with power to take charge of his entire estate, collect rents, &c., until his youngest child should become eighteen years of age, provided she remained unmarried; but that in the event of her marriage, and for other causes mentioned in the will, then the petitioners should act as executors and guardian’s of his estate. It further represented that the said Catharine had contracted marriage with one John H. Binnerman; and prayed that the court pass an order “ directing her to pass a distributive account, so that the petitioners might take charge of that portion of such estate to which the children might be entitled.”

The appellant replied to this application, stating that letters of administration had been duly granted to- her, and that she had fully settled said estate so far as the orphans court is concerned; and claiming also, that by a proper construction of the will of her testator, she is entitled to the entire estate during her life.

At the hearing of the cause the court revoked the letters of administration granted to the appellant, and granted letters da bonis noH to the appellees. The court also directed that the appellant should slate another account, in which she should recharge herself with the sum of $2415'.5G, which was in her first administration account retained by her as the widow of the said Caspar Weaver, deceased.

The clause in the will which gives rise to this controversy is in these words:

•• Baltimore, 3 une the eleventh, in the year of our Lord, one thousand, eight hundred and fifty-one, I, Caspar Weaver, I know all men by these presents, and make this instrument of writing my Jara will a testament, as follows:, That my ■wife, (Catharine Weaver,) shall keep possession of all my property during the continuance of her life, proviting she doihs stay unmarried to take care of the younger children and raise them up untili the youngest child is eighteen years of age, and that she shall draw the rents of said property and settle all incumbrances thereon to the best advantage; but if said wife should depart this life or should get permanently deseased, or in any ether way unable to attend to the duties of my will, I then select my son, William Henry Weaver, and my son-in-law, Gotlieb Thater, as administrators and as gardiens of my estate and personal property.”

On the part of the appellees it is contended, that the true construction of this very singular paper is, that on the marriage of the appellant the letters granted to her ought to be revoked and letters de bonis non granted to the appellees.

Under the laws of this State a married woman may act as executrix or administratrix. There is nothing then to disqualify her except it be found in the language of the will. To say the least of it, it is very doubtful whether it was not the intention of the testator only to appoint the appellees in case his wife “should depart this life, or should get permanently diseased, or in any other way unable to attend to the duties” of the will. But be this as it may, it is clear, that the bequest to the wife, during life, without a bequest over in the event of marriage, is not such a bequest as will defeat the life-estate, it being against the policy of the law and in restraint of marriage. It may be said here, as it was in the case of Evans, et al., vs. Iglehart, 6 Grill & John., 185, “a life-estate in a chattel may be granted for life to one person, and the same with its issue or increase be limited over to another; but this cannot be done but by express words or necessary implication. Here no such express words are used; no such necessary implication arises.”

In any event the appellant would be entitled to her interest, jure mariti, and as she has settled her accounts fully the jurisdiction of the orphans court ceases, and a court of equity alone can enforce the trust created by the will, if any such be raised by it.

We are of opinion, however, that the appellant is entitled to a life-estate in the property embraced in the will of her testator, subject to the trusts engrafted upon it. She cannot be required to recharge herself as directed by the order of the orphans court. The settlement already made by her discharges her bond, and if she fails to perform her duty as enjoined in the will the remedy is in a court of equity.

Order reversed and petition dismissed.