Amos R. Holman vs. Adams Perry & another, 4 Met. 492

Dewet, J. Married women have not the same authority as femes sole to dispose of their interest in real estate by a last will and testament. Any devise by them of their real estate, in order to be made available to the devisees, must have its foundation in, and acquire its efficacy from, some special power retained or acquired by them to make a testamentary disposition of their estate.

But there can be no doubt, that in reference to property which has been thus preserved under her control, the will of a married woman may be as effectual in the disposition of that property, as the will of any other individual in passing his estate.

Such a will may have force and effect as a testamentary paper, or instrument, directing the disposition of property by virtue of a power reserved to her in a marriage settlement or ante-nuptial contract. “ Wherever a trust is created or a power is reserved by a settlement, to enable the wife after marriage to dispose of her separate property, either real or personal, it may be executed by her in the very manner provided for, whether it be by deed, or other writing, or by a will or appointment.” 2 Story on Equity, § 1388.

If the real estate of a feme is, before her marriage, conveyed to a trustee to hold to her separate use, and by articles of marriage settlement she is authorized to dispose of the same by will, then a disposition of such estate by will is a valid and legal disposition of the same, though she is under coverture when she makes such will. Wright v. Englefield, Amb. 468. Wright v. Cadogan, 6 Bro. P. C. (1st ed.) 156. Peacock v. Monk, 2 Ves. sen. 190. Bradish v. Gibbs, 3 Johns. Ch. 536, and cases there cited.

The duty of the court of probate to approve and allow a will of a married woman, when necessary to give effect to her power of disposal of real estate, was fully admitted in the opinion of this court, in the case of Osgood v. Breed, 12 Mass. 525 Whether a married woman can make a devise of real estate which has not been conveyed to a trustee, but of which she and her husband are seized in her right, is a question, which, although discussed in the argument of the present case, we have not found it necessary to decide.

The question before us is as to the right of probate and allowance of this will; and all that it is necessary for us to consider is, whether there is any property upon which it can legally operate. And it is very clear, that as to the real estate which may have passed to Davis, the trustee, under the ante-nuptial agreement by indenture, and also as to the real estate which the testatrix held under the deed from P. and G.

Tourtellot, and afterwards, jointly with her husband, conveyed to said trustee, she had the power of disposal thereof by will; and this will ought to be allowed and approved, so far as is necessary to give effect to her disposal of the same. But the appellant insists, that at least as to a part of the land devised, namely, that conveyed to the testatrix by Leonard Pierce, in 1838, and of which the legal estate remained in her and her husband, this will cannot operate. And it is then contended, that if the will is inoperative upon a portion of the lands devised, it should be wholly disallowed.

We cannot assent to the correctness of this position last stated. We are aware that by statute provisions formerly existing, (St. 1783, c. 24, § 9,) a will purporting to pass both real and personal estate, but not so executed as to pass the former, could not be allowed as valid will of the personal estate. But we apprehend that this principle was never so applied as to furnish a valid objection to the probate of a will, where from some defect, or incapacity to devise, a part of the real estate, which was given by the will, could not pass.

Take the case of a testator, who was disseized of one parcel of the land devised. Would this defeat the whole will ? The probate of a will does not necessarily settle any question of title to real estate arising under such will. It establishes the due execution of the will by the testator, and is conclusive thus far ; but as to his title, or.his right to devise the property named in the will, it binds nobody who has any adverse interest. Questions of that character are to be settled by proper proceedings at law, or in equity.

We cannot, as the supreme court of probate, settle the rights of the parties to the real estate which may be claimed under this will. The question may come up incidentally ; and if there were only one parcel of land which could possibly be affected by the probate of this will, and the court were satisfied that it could not pass by the will, then perhaps probate might be refused, inasmuch as this is a case of a mere limited or qualified probate of an instrument made in the execution of a power.

But if the court are satisfied that any land can pass by the will, that is all which is requisite to authorize and require the approval of the will. We therefore think that the objection taken by the appellant could not avail him, if the land above referred to should not pass by the will. But whether it does so pass, is, as before suggested, a question more properly raised in some other mode than the present.

The result will be, therefore, that the instrument, offered as the last will and testament of -Martha Perry, be approved and allowed, and have full force and effect as such, so far as the same can operate, in law or equity, upon any and all property, real or personal, of said testatrix, or upon any property subject . to her disposal by way of appointment, creation or declaration of trust, or otherwise, so far as she, under the indenture before referred to, or otherwise, had authority, while a feme covert, to make any appointment or disposition, or create or declare any such trust of or respecting any such real or personal property.