The Judges delivered their opinions seriatim.
Chase, Ch. J.The common law of England is the common law of this state, excepting such changes as have been made by the acts of the legislature. The common law pervaded the whole realm of England, and was co-extensive with its limits. Some peculiar local customs prevailed within the realm in certain cities, places and districts, in derogation'of the common law, and were considered as privileges appertaining to each city or district, and were of no validity elsewhere* The origin of these customs cannot be *483well ascertained, but were claimed and pertinaciously adhered to as the law of each respective city or district.
I consider it established by the decision in the case of Griffith vs. Griffith's Ex'rs. 4 Harr. & M'Hen. 101, that it was the common law of England, at the colonization of Maryland, or the grant of tiie charter to Maiyland, and Jong antecedent to that lime, that ® widow was entitled to her reasonable part of the goods of her husband, his debts and funeral expenses having been first deducted; and that that reasonable part was one third, or one half, according to the predicament in which she stood at the time of the death of her husband; that this reasonable part was not subject to the dominion or control of Iter husband; that her right was paramount his power, and that he could not, by his will, deprive her of it.
Although the common law did undergo some change in England, by imperceptible degrees, as to the reasonable part of the children, yet the time and manner of such change cannot be defined with any precision, or in a satisfactory way. It is certain, beyond a doubt, that no change ever took place in the common law, as to the reasonable part of the widow, before the colonization of Maryland. The right of the widow stands on the immutable principles of justice, and has been repeatedly sanctioned by the various acts of the legislature, modifying the right at some times without making any essential alteration.
As soon as the marriage is solemnized, all the personal property, of the wife, by operation .of law, is vested absolutely in the husband, no longer subject to her control or disposition. She cannot dispose of any part by her will, not even to her child, friend, or dearest relation, without the assent of her husband. This is the fair, the good consideration on which the right of the wife is founded. She who, with a liberal hand, and generous heart, gives all, is well entitled, when her husband can enjoy it no longer, to a third or one half.
The several acts of assembly relating to the right of the wife to a part of the personal estate of her deceased husband, commencing with the act of 1699, down to the act of 1798, contain a clear, unequivocal, and explicit recognition of that principle of the common law, which allows to the wife a reasonable part of the personal estate of her deceased husband. The following deductions are plainly in-ferrable from those acts. If the deceased dies intestate, leaving® wife, and without a child, the widow shall have one half of the personal estate. If the deceased makes a will, and makes no bequest of any part of his personal estate to his wife, oran invalid or inoperative bequest to her, and dies, leaving a wife and no child, she shall have one half of the personal estate; because, as respects his wife, he dies intestate; and this is in accordance with the decision in the case of Griffith vs. Giiffith's executors, and is the just and sound exposition of the act of 1798, which declares, that it is consonant to justice that a widow accepting or *484abiding by a devise, in lieu of her legal right, shall be con» siderecl as a purchaser with a fair consideration, if the devise proves invalid or inoperative. A purchaser of what? Iler share or legal right, because that which was intended as an equivalent has proved to be of no value, and he dies intestate of his personal estate as to his wife. Her share, or legal right, depends on the predicament in which she stands at the time of the death of her husband, which will be one half, or one third; one half if he died leaving no child, and of that she is declared to be a purchaser wifh a fair consideration.
I am of opinion, that the decree of the orphans court ought to be affiimed.
Johnson. J.By the decision in the case of Griffith vs. Griffith's Executors, as ipported in 4 Harr. & M'Hen. 101, the common law of England, as it existed on the settlement of Maryland, was adjudged to give to the widow a portion of the personal estate, whether the husband did or did nol leave, a will.
The various acts of assembly passed in Maryland recognize the right of the widow; the extent of the interest in certain instances has been ascertained; and where a case presents itself, coming within those specified cases, the widow’s interest must be. governed by them.
The act of 1798, ch. 101, passed before the witl in question was made, restricts the widow’s interest, whether children or not, to one third in the cases to which the restriction applies. The case before the court does not come within the restricted exception mentioned in the act; andas the testator died without leaving children, or their representatives, I am of the opinion the decision of the orphans court, giving her one half, was correct.
Martin, J. concurred, Dorsey, J.I consider the case of Griffith vs. Griffith's Executors, as establishing principles by which the controversy in this case must be settled. If the point had been res nova, I should have pondered before I decided that the common law of England, at the time of the settlement of Maryland, gave to a widow a part of the personal estate of her husband, in opposition to his will, but as that, and other points directly bearing.on the question now before the court, have been settled in the case referred to, I must bow to its authority. I am therefore of opinion that the decree of the orphans court ought to be affirmed.
DECREE AFFIRMED.