Hokamp v. Hagaman

Stewart, J.,

delivered the opinion of the Court.

Conrad and Margaret Hagaman were duly married, and lived together as' husband and wife for a long time.

In June, 1867, a decree was passed by the Circuit Court for Howard county, divorcing them a mensa et thoro ; and it was further decreed, in accordance with an agreement of the parties, through their solicitors, that Hagaman pay to his wife the sum of $ 1,676, in full of all arrears for counsel fees and alimony, which shall also free him from any obligation to contribute to her support in the future, and release all claims •of his wife for dower and thirds in any property now held, or hereafter acquired by him. This sum was paid by the husband.

The parties, in August, 1867, became reconciled, and lived together as man and wife until March, 1869 — the husband holding her out to the world as his wife; and as such they were known and recognized. They separated again for a time. In the month of June, 1870, they lived together as husband and wife for a while.

Hagaman departed this life, after having duly executed his last will and testament. He never had any child, and left no parent, brother or sister. His widow, Margaret, survived him. He made no devise or bequest of any of his property to her, and she claimed the whole of his personal estate, after payment of debts and funeral expenses.

The devisees and legatees in the will insist that she has no valid claim to any part of his estate.

The Orphans’ Court of Howard county, on the 26th of September, 1871, decreed that the executor of Hagaman *517 allow, in liis administration account, the one-half of his personal estate, after payment of debts and funeral charges, to his widow. Erom this decree both the executor and the widow have appealed.

Two questions have been made: 1st. Has the Orphans’ Court authority, since the decree of the Circuit Court, divorcing the parties a mensa et thoro, with the accompanying terms, to take cognizance of the case? 2d. If the widow is not barred of her rights by the decree, what portion of the estate of her husband, if any, is she entitled to, under the circumstances ?

There is no doubt that, under the 26th section of Article 16 of the Code, the Circuit Court for Howard county, as a Court of Equity, had the power to decree the divorce a mensa et thoro of the parties; and that section also authorizes the Court “ to award to the wife the property held by her, when married, or its value, or of such part as may have been sold or converted by the husband, or such part as the Court deemed reasonable.” They possessed authority before such enactment to allow alimony.

This decree of the Circuit Court for Howard county did not ' dissolve the relation of husband and wife, nor could it deprive the widow of her dower, or reasonable part of the personal estate of her husband. 2 Bishop on Mar. and Div., sec. 730. It merely operated to legalize their separation, and made provision for the wife so long as the separation should continue. Upon the death of either, or upon their mutual consent to live together again as husband and wife, that is, upon their reconciliation, the provision ceased. Wallingsford vs. Wallingsford, 6 U. & J., 488; see also Barrére vs. Barrére, 4 John. Ch. Rep., 187.

That decree cannot be construed to bar the wife of her rights, as a widow, to dower, or reasonable portion of her husband’s estate, or to deprive the Orphans’ Court of its unquestionable authority to supervise the distribution of the estate amongst the parties entitled thereto. The decree can have no such legal effect.

*518 (Decided 20th June, 1872.)

Although the Orphans’ Court is a Court of limited jurisdiction, and denied the exercise of any power not conferred by law, yet its authority is ample and sufficient to adjudicate upon the matter brought before it in this case. Code, Article 93, secs. 230, 231.

The testator having, by his will, made no provision for his wife, by devise or bequest, there was no occasion for any renunciation upon her part; and the 285th section of the 93d Article of the Code, authorizing distribution to - the- widow, (where, there is a will, devising or bequeathing to her any thing, upon her renunciation of the will,) of one-third of the estate, has no application to this case. Nor does section 120 of Article 93 and the other sections, in regard to .the distribution of estates of intestates, apply to a case like this, where there is a will disposing of the property of the testator.

Hagaman having left no child, and his wife surviving him, she is entitled, according to the principles of the common law, as settled by the cases of Griffith vs. Griffih’s Ex’rs, 4 H. & McH., 101 , and Coomes vs. Clements, 4 H. & J., 480 , to the one-half of his personal estate; and that portion was properly allowed by the decree of the Orphans’ Court, to be paid by the executor.

Decree and Order affirmed.

Grason and Miller, J., dissented.