Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1884-09-25


Daniel Ryan Of WiltuiHe snD nd u O'ee
Harvey Of New Castle tool va, s=tnEAi
ization papers.
THE M'cAuLLRY WILL CONTEST,
Much interest was manifested when
the McCAulley dover case, wLich ID an
appeal taken by SAmu,l W AID J.
Augustus MoCaulley, -&,,ntms a d de-
visees Of the late Hiinam N1Gautley,
from an order OF the orphans ovurt in
assigning dover to Mrs. Sybilla Mo
Caulley, was taken up. Edward G.
Bradford and Anthony Higgins, B4qs.,
represented the appellants and Charles
b. Lore, x q the respondent.
A REVIEW OF THE CASE.
William McCauIley died last September
leaving will which has been admitted
to probate. The testator devised q GER
tain proportion Of his estate, which
largely consisted Of realty, for the benefit
Of the respondent. Last January she
made her election TO take dover in the
real estate Of her husband in lieu OF the
estate so devised for her benefit, and filed
a petition in the Orphans court, praying
for the assignment Of dover to her. In
February, before any order had been
made upon the petition, her counsel filed
q deed executed by herself and husband
and Robert Waddell Of Trenton. The
document is dated December lst, 1868,
and was an agreement between husband
and wife TO let each other control and
dispose Of their own property. The wife
Was To renounce all interest in
her husbands property except what he
chose TO give her by will, deed or other
instrument. On February 18th the
orphsns' court allowed the appellants to
intervene In the matter Of the application
for tue assignment Of dover, and their
counsel promptly filed an exception 10
the application. Argument was heard
and on February 23d the court ordered
that dover be assigned to the widow in
accordance with the prayer Of her petit
tion and directed the issuing Of com.
mission to make such assignment. On
the same day the executors prayed an
appeal, which was granted, and an order
was made for the transmission OF the
papers and record in the case to the
superior court.
ESTIMATED VALUE OF THE ESTATE.
The estate ia valued at from $780, 900
to $1EO, 900. To the widow was bsqueathed
all the household furniture, except the
silverwsre, and the income from one
eleventh Of the estate. At her death her
share gees to the deosAsed's grand
daughter, Florence Hill Frost, absolutely,
her heirs and assigns The widow is
seeking to obtain one-third OF the estate.
MR.. BRADFoRD's ARGUMENT.
After reviewing the case Mr.. Bradford
said "The trust deed Of December 1st,
1868, clearly evidences q contract be-
tween the husband and wife that she
should renouncs all interest in the real
and personkl estate Of her husband,
except what he might give to her by
will, deed or other instrument. This
undertaking OF the wife was supported
by full consideration The complete
surrender by the husband Of bis marital
right over the moneys, chooses in action
and other personal property Of the wife,
Rs we'll as her real estate. II is true that
the married women's act Of 1865 was then
in force, but its operation was
limited to real estate, mortgages,
stocks and silver plate belonging
to Ruy married woman at the time oil her
| marriage, or to which she may become
untitled at any time during her overture
| Rveu nader tAls att valuable rights were
.scur d to the husband with respect to
| the property mentioned therein. With
| out the husbands consent the wife could
not sell or otherwise dispose of her real
estate, mortgages, stocks or silver plate, ;
or create any inoumbrance upon her
real estate or dispose Of the rents,
issues and profits thereof, or the interest
upon her mortgages, or dividends, or
other income arising from her stocks.
Under the trust deed Sybills
McCaulley had full power to dispose OF
the property therein mentioned without
the consent or against the will Of her
husband by gilt, deed, assignment or
writing in thu nature Of will But the
property transferred In trust was by no
means limited to the several species men,
toned in the act OF 1865. It embraced
certain United States bonds, New York
seven per cent bonds, certain
moneys deposited in the hands Of W. M.
McCAulley & Co., and sundry other
bonds, notes, debts, chooses in action and
personal property William MeCRuliey
gave up all his maritsl rights over this
property, and thus furnished ample CON
sideration for the undertaking Of his
wife. The contract reoited In the pre-
amble Of the trust deed was exeoutory
until the deed was executed. As soon as
the deed became operative the contract
was ipso iacto executed on the part Of
William MoCaulley, while 1t remained
exeoutory on the part Of his wife.
A PROVISION OF THE WILL.
"Upon this contract William MoCsulley
rested in good faith and in and by his
will not only recognized II, but made q
provision In conformity with II. He
gave the income Of one-eleventh Of his
estate TO his wife for life, 'to be deemed
and taken In lieu and bar OF dover in
my estate. make this provision for the
love and affection l bear her, she having
her own estate, which is ample, and
there being marriage contract between
us, authorizing each party to have and
manage his or her estate without the
claim or interference OF the other, and in
bar of dover, said marriage contract
being in the hands Of Robert Waddell OF
Trenton, N. j. Now, having for nearly 20
years received the benefit for which she
contracted in bar OF her dover, she has
the assurance to press her application for
its assignment. Is she not barred 7 Al
common law jointure was not bar to
dover, but the wife could retain the for.
mer and also insist upon the latter.
(Clancy on married women, 2l9). But
under the statute Of ~ Hen VIII, G,
10, dover could be absolutely barred by
jointure Of the required nature before
marriage. II made during coverture II
could only serve to put the widow to her
election. Delaney on married women,
2l3) Rquity followed the law with re-
speut TO equitable jOintures, b. thai
while an equitable iointure before
marriage would absolutely bar dover,
one msde after dover would only put the
/ widow 10 her election. (Clanoey on
married women, 220.) Such was the
effect at Law and in equity Of the statutt
of 81 Hen. VIII, 10 relation to jointures
But that statute has never been adopted
in whole, either in substance or terms, In
Delaware. On the contrary much Of thu
earlier legislation here was inconsistent
, with the provisions and effect Of thai
statute. In 1888 It was enacted with re-
} spect to the disposition of estates OF dece
, dents that one.third should 60 to the
> widow, unless it appear that an equa
3 provision be made elsewhere (AIp.
/ Del. Lsws, l6, SEQ. 1922 In 1897 II Wal
enacted that 'all teBtators' rea
: estates, TO be invested and remain as thei
4 last wills and testaments devise the same
/. provided always that no less than one
. third part OF the said real estate be al
: lowed and invested In tn
a widow during her natural life
q except where due and equivslen
0 provision hath been made before BY
4 the testator'. (App.1 Del. DAVIS, "a, sec