Cooney v. Woodburn , 33 Md. 320 ( 1870 )

Alvey, J.,

delivered the opinion of the Court.

The question in this case arises upon the effect of a clause in the will of Patrick Cooney, who died in September, 1849. The will was made in April, 1849.

The testator left several children surviving him, and among them Eleanor B., the appellant’s intestate, to whom was bequeathed, by her father, certain leasehold property in the city of Baltimore, for her sole and separate use and benefit, without being subject to the control or disposal, or liable for the debts, of her husband, if she should thereafter marry; and such of the testator’s property as passed to his daughter Eleanor B. under the residuary clause of the will, was also declared to be for her sole and separate use and benefit, independent of the control or disposal of her husband, if she should marry. At the time of the death of the testator, the daughter Eleanor B. was unmarried; but she became possessed of the property bequeathed to her by her father’s will, and in August, 1854, was married to Charles H. Woodburn, the testator of the appellees. She died intestate, and without issue, in 1864, her husband surviving her. Her property was all taken possession of by the surviving husband, without administration; and in August, ! 866, he died, leaving a will, by which he gave his property to his mother, one of the appellees, and David E. Woodburn, his brother, became administrator of his estate. In 1867, George A. Cooney, the appellant, obtained letters of adminstration upon the estate of his sister Eleanor B. Woodburn, and in his character of administrator claimed the property that had been bequeathed to his intestate by her father, and which had passed into the possession of her surviving husband at the time of her death. The bill in this case is filed to enforce that claim. And the single question argued on this appeal is, whether the personal property of the wife limited to her sole and separate use by her father’s will, passed, upon her death intestate and without issue, to her husband, in his own right, or to her administrator ?

It is contended on the part of the appellant that, according to the intention of the testator, as manifested in the terms of his will, the daughter took the estate bequeathed to her as féme sole, and that she bore that relation to it during life, notwithstanding her marriage, and that all the marital rights of the husband were excluded, as well after the death of the wife as before, and that, consequently, the property devolved on the appellant as administrator of the wife; while on the part of the appellees it is contended, that during the coverture the marital rights of the husband in the property- were only suspended,l3and that upon the death of the wife, the separate quality of the property ceased, and the marital rights of the husband attached, as if the separate use had never been declared.

In determining this question it is important to observe the terms in which the bequests were made. They gave the property to the legatee, then a single woman, for her sole and separate use, without being subject to the control or disposition of her future husband, but without any limitation over whatever, or the employment of any terms to indicate how the property was to pass on the death of the daughter; nor is there any limitation as to the mode of assignment or appointment. The legatee was clothed therefore with general power of alienation as féme sole, both before and after marriage. Cooke vs. Husbands, 11 Md., 492.

The separate estate, the mere creature of a Court of Equity, is allowed and maintained for the benefit and protection of the wife, against the improvidence and misfortunes of the husband, and consequently it has its existence and operation only during the period of coverture ; and whilst the legatee in this case remained discovert the separate estate was dormant and without effect, though it was capable of arising, and did arise, upon the happening of the marriage contemplated by the will; and upon the termination of the coverture by the death of the wife, such separate estate became absolutely void. Tullett vs. Armstrong, 1 Beav., 1, Same Case, on appeal, 4 Myl. & Cr., 397.

It was certainly competent to the testator to have not only excluded the marital rights of the husband during the cover- ■ ture, but, by apt terms, to have carried such exclusion beyond that period, and excluded them altogether. There is nothing however in the terms of the will to manifest clearly such intent. The husband is the party declared by law to be entitled in the absence of some clear and positive limitation to exclude him, and if the separate estate terminated with the death of the wife, and there be no limitation of the estate inconsistent with the rights of the husband, who other than the husband can be entitled? His rights were simply suspended,in reference to this particular property, during the coverture. It is true, the property could have been disposed of by the wife by virtue of the existence of the separate estate, and thus the husband’s suspended rights could have been entirely defeated; but that not having been done, upon the death of the wife, those rights were revived and became active.

It being conceded that the husband would be entitled to the property in question if it were not for the effect attributed to the will of Patrick Cooney, it becomes purely a question of construction; and as there is nothing on the face of the will, apart from the usual formula of declaring the separate estate during coverture, it follows that the husband’s rights, though suspended up to the time of the death of his wife, have not been entirely defeated. The will making no disposition of the property on the death of the wife, and providing only for her exclusive dominion over it during coverture, “ the right of the husband, as survivor, is a fixed and stable right, over which the Court has no control, and of which he cannot be divested. The settlement cannot be extended, by construction, beyond the just and iair import of its provisions; and, clearly, the Court cannot create a settlement, or disposition of property, in violation of the jus mariti, when none has been made by the party.” So declared Chancellor Kent, in the case of Stewart vs. Stewart, 7 John. Ch. Rep., 229; and the reasoning and principle of construction of that case have been fully sanctioned and approved by the Courts of this State, in Ward vs. Thompson, 6 Gill & John., 357; Waters vs. Tazewell, 9 Md., 291, and Jones vs. Brown, 1 Md. Ch. Dec., 191; which cases govern and control this.

(Decided 2d December, 1870.)

Being of opinion that the surviving husband was entitled to the personal property of his wife at the time of her death, we shall affirm the decree appealed from, with costs to the appellees.

Decree affirmed.