
    B. F. Shaw vs. W. J. Dawsey.
    The will of a feme covert is void at law, and the Court of Common Pleas, acting as a Court of Appeals from the Ordinary, cannot entertain the question of executing a will under a deed of settlement. This is a question purely for the Court of Equity.
    Before 0’Neale, J., at Georgetown, 1840.
    This case was an appeal from the Ordinary, on the probate of the will of Elizabeth Shaw. Mrs. Shaw was a married woman when she executed her will, but her executors claimed that under and by virtue of a deed of settlement, she was authorized to dispose of her property by a will, or deed in nature of a will, and the Ordinary sustained the will. On the case coming on for trial, his Honor ruled that the fact that testatrix was a feme covert, at the execution of the will, rendered it void at law, and that the Court of Common Pleas, acting as a Court of Appeals from the Ordinary, could not entertain the *question of her executing a will under a settlement, which was purely a question for the Court of Equity, and so reversed the decree of the Ordinary without inquiry. The ground of my decision is not presented by this brief. The fifth section of the Act of 1734, (P. L., 139,) has the following provision: “ Provided now, and at all times, that any will or testament, made, or to be made, by any feme covert, idiot, or any person of non-sane memory, shall not be good or valid in law, any thing hereinbefore to the contrary notwithstanding.” By this, it seemed to me, that it was impossible to set up the will of a feme covert as such. If it is operative at all, it is as the mere execution of a power, and this becomes part of the deed. The Ordinary’s decree, admitting it to probate, as a will, was ruled to be erroneous, and the jury found against the bill.
    See Ward vs. Glenn, 9 Rich. 127 ; Hood vs. Archer, 1 McC. 477 ; Converse vs. Converse, 9 Rich. Eq. 535. An.
    
    GROUND OF APPEAL.
    That the Act of the Legislature making the Court of Common Pleas an appeal from the tribunal of the Court of Ordinary, by necessary implication has clothed it with all the powers and jurisdiction of the Court of Ordinary, and also the powers necessary and proper to make such final decree as the nature of the case may require; and so he submits the powers under the deed were matters for the consideration of the Court.
    
      B. F. Hunt, for the motion. -, contra.
   Curia, per

O’Neall, J.

In England, I concede, the will of a feme covert, in execution of a power, must be proved in the Spiritual Court, before the Court of Equity will read it. (Sug. on Po., 329. But I do not understand that such a Court has original jurisdiction of the probate of such a will. It is only when such a.paper is presented to the Court of Equity, that it is sent down to be there proved. If, however, a different practice there prevailed, the Act of 1134, (P. L., 139,) compels us to adopt it here. For it provides that any will or testament made, or to be made, by a feme covert, idiot, or any person of non-sane memory, shall not be good or valid in law, any thing hereinbefore to the contrary notwithstanding.” It is impossible for a Law Court to say that a paper declared by an Act of the Legislature to be void, is still to be proved and allowed to have legal effect. It can neither operate as a will or testamenb But bi equity, it will be allowed, (if it has in *other respects the legal requisites,) to operate as an execution of the power contained in the deed of marriage settlement. That Court may send it down to be proved before the Ordinary, if they think it can be regarded as an execution of the power.

The motion is dismissed.

The whole Court concurred.  