OPINION OF WILLIAM PINKNEY, ESQ.

On the will of·

THE

and on the right of third of his personal estate.

his wife, to a

HE will bequeaths no part of his personal estate to his wife, but, on the contrary, bequeaths it all away from her, and she did not renounce the will.

It is required, whether, under these circumstances, she is entitled to a third of the personal estate, clear of debts.

I am of opinion, that she is so entitled, and as the point is an important one I will state my reasons at large. It has for many years past (and I believe from the first settlement of the province, but certainly ever since the act of 1715, ch. 39.) been the prevailing idea in this country, among lawyers as well as others, that a husband could not devise away the whole of his personal estate from his wife. This idea has been almost (if not perfectly) universal, and it is supposed to have originated entirely from the provisions of the act of 1715. I think it did not take its rise solely from that act; but let its origin have been what it might, it has been received as settled and established law, and has, in part, been recognized by our testamentary tribunals. Whether it is a just idea or otherwise will not be discovered by a mere examination of the act of 1715; for although in the passage of that act the general assembly evidently considered it as a rule of law that the wife could not be debarred of her third part by the last will of her husband, yet, as there is nothing in the act which actually provides to the full extent of the rule, or establishes it in so many words beyond certain specified instances, the rule, as it has been since understood, could not probably have been derived from that act alone. It appears to me that it was part of the law of Maryland before that act was in existence; for, if it was not, it is inconceivable that the fact of the general assembly having mistaken the law should have totally changed it without any legislative provision sufficiently extensive to do so. The provisions of the act of

1715 apply only to a single case, i. e. where the husband bequeaths a considerable part of his personal estate to his wife and she renounces (vide act 1729) within forty days. In this case she is declared to be entitled to one full third of the clear personal estate; which expressions unquestionably mean a full third clear of debts, (vide the whole clause and the proviso about debts.) But this act goes no further; it does not enact the general rule before mentioned, although it certainly acts upon it as applying to the instance for which it was making provision. The reason why it did not enact to the full extent of the general rule was evidently this, that the assembly considered that rule as being already the law of the land. Their object was rather to limit its operation than to establish it; their view was to prevent a consequence from it which they considered as unjust, and not to introduce it; they believed it to have been introduced before, and to have been the undoubted law of Maryland, (vide preamble of the clause.) In this belief, I think, they were not mistaken; but whether they were mistaken or not, it is extremely clear to me that their opinion concurred with the received and settled doctrine and practice at that time. How that doctrine came to be received will appear from the history of some parts of the English law, which I will state from the 2d vol. of Blackstone's Commentaries, p. 494, 495, 496. By the common law of England, as it stood in the reign of Henry II. the personal estate was to be divided into three equal parts, of which one went to the heirs or lineal descendants, another to his wife, and the third was at his own disposal, &c. "The shares of the wife and children were called their reasonable parts, which the husband could not devise away from them, and a writ was given to recover them." This continued to be the law of the land at the time of magna charta, &c. In the reign of Edward III. this right of the wife and children was still held to be the universal or common law, "and sir Henry Finch lays it down expressly in the reign of Gharles I. to be the general law of the land. But this law is at present (in England) altered by imperceptible degrees (not by statute); and the deceased may now

by will bequeath the whole of his goods and chattels, though we cannot trace out when first this alteration began." The same author remarks that the old rule continues to be the law of Scotland to this day, and that it also continued in Wales, the province of York, and city of London, till very modern times, when it was altered by different statutes, passed in the reigns. of William and Mary, Queen Anne and George I. vide p. 497. It will appear from the above statement that in the reign of Charles I. the widow was entitled to the third of her husband's personal estate by the common law, and that he could not devise it away from her. The charter of Maryland bears date in the eighth year of that king's reign, and colonization commenced about the same period. It follows that the emigrants to this country brought the then established law along with them, and received and acted upon it here as a rule of property. From colonization to the act of 1715 the rule remained unchanged in this country, although in England it was undergoing gradual alterations; and in 1715 the provincial legislature expressly recognize it as settled law, and proceed to limit its effects in the case already mentioned. It is true, indeed, that the colonists did not adopt the whole of the ancient rule, for they do not seem to have acknowledged the right of the children, but that they adopted and practised the rule so far as it respected the wife is extremely obvious. The change of the law in England could have no influence upon it here; it was not changed by an act of parliament or suddenly changed; -it altered imperceptibly and silently. The colonists, being far removed from the mother country, either did not know of this change, or did not choose to follow it; and it is clear that they were not bound to follow it. On the contrary the colonial assembly recognize the rule and legislate upon it; for it is impossible to think that the act of 1715 is not founded upon the admission of this rule, merely calculated to restrict its influence on a particular case. Upon the whole it occurs to me that this right of the wife to a third part of the husband's personal estate, In opposition to his last will and testament, was the law of England at the time of our colonization; that the colonists

brought this law with them, received it, and acted upon it until 1715, when (although it needed no ratification) it was confirmed by the opinion and provisions of the legislature. The passage cited from Blackstone's Commentaries, coupled with the act of 1715, is satisfactory to my mind. Upon what ground did the general assembly proceed, if not upon that which I have stated? It cannot be supposed that they so totally mistook as to take that for law, in a point of this kind, which was not so received in general. They must have had some reason for thinking that the law was as they have plainly supposed it; and this reason could be no other than the then established usage and settled opinion in the province. That usage and that opinion could have had no other probable origin than the one before alluded to; and this origin was a legal one. It would have been a legal one even if the law of England had been changed without an act of parliament before the reign of Charles I. for I know of no authority courts of judicature have to alter the common law. I hold therefore that the law of Maryland is, that a husband cannot devise away his personal estate from his wife so as to debar her of her thirds. In a case circumstanced like the present there was no necessity for renunciation. No personal estate was bequeathed to Mrs.

and of course there was nothing to renounce. The acts of 1715 and 1729 relate to cases only where a considerable part of the personal estate is given to the wife. There was a plain reason for demanding a renunciation there, which has no existence here. The object of the law was to preclude the wife from taking both under the will and under the rule before mentioned; and clearly that object does not embrace an instance where nothing is given or can be taken under the will, but solely under the general rule. I have thus far considered this case upon the footing of what I allege to have been the law of this country before the act of 1715; but even under that act alone, and the practice since, I should be inclined to hold the same opinion. I do not think, indeed, that the act of 1715 reaches in the letter of its provisions the present case; but as it sanctions the wife's right in one instance, in opposition to the husband's

bequests to other people, and as the same reason applies to the case in question, I should suppose it would be going too far at this time of day, by a strict and rigid construction, to shake the liberal interpretation that is supposed to have been given to it by general consent and uninterrupted usage. In one point of view this act of assembly (even admitting that it introduced the law into Maryland, which I deny) will come strongly to this case. The wife's right to her third, in opposition to her husband's testament, was the common law of England; and if altered without authority by the judges before colonization and not introduced into Maryland before the act of 1715, that act may be considered as declaratory of the common law, and thus as justifying or rather requiring its revival. The common law had never been altered by those who were empowered to alter it, and a discontinuance of the use but for a short time had not abolished it. This act admits its force and brings it forward into practice as a rule of property; that rule has ever since been held as law, and it cannot now be shaken; it stands on the firm foundation of the ancient common law not repealed or abrogated; it is acknowledged, if not reenacted, by two acts of our general assembly; it is strengthened by the uniform opinion and usage of the country; and if it is not now the law of this state, it will be difficult to show that we have any law at all.

(Signed)

WM. PINKNEY.