Bratley v. Suburban Bank

GILBERT, Chief Judge. The Personal Representative of the Estate of Eleanor N. Bratley asks that we compel distribution to the estate of a bequest from the late Alice S. Flory. To accomplish that objective, we are urged to hold that the Circuit Court for Montgomery County sitting as an Orphan’s Court (Latham, J.) erred in its interpretation of Md.Est. & Trusts Code Ann. § 4-401 or that the statute is unconstitutional in that it denies equal protection and due process. The agreed statement of facts 1 reveals that: “Mrs. Eleanor N. Bratley handled gratis Mrs. Alice S. Flory’s financial affairs for about 5 years.

In token esteem, Mrs. Flory provided ... in her will ... ‘To Eleanor Bratley (Mrs. CYRIL 0.), a friend, five percent (5%), if living, otherwise this bequest shall fail.’ ” Mrs. Bratley survived Mrs. Flory by twenty-four calendar days. The personal representative of Mrs. Flory’s estate paid the sum of $12,561.02 to Ms. Carol Bratley in her capacity as personal representative of Eleanor Bratley’s estate. When it discovered that Eleanor Bratley did not survive Mrs. Flory by thirty days, Suburban Bank, the personal representative of the Flory estate, refused to make further distribution to the Eleanor Bratley estate and demanded a return of the monies it had already paid. Carol Bratley declined to return the $12,561.02 she had received ⁶²⁸ on behalf of her mother’s estate.

Instead she filed in the Orphan’s Court a “Petition to Compel Distribution of Legacy” which was denied by Judge Latham. I. Estates and Trusts Article § 4-401 provides: “A legatee, other than his spouse, who fails to survive the testator by 30 full days is considered to have predeceased the testator, unless the will of the testator expressly creates a presumption that the legatee is considered to survive the testator or requires that the legatee survives the testator for a stated period in order to take under the will and the legatee survives for the stated period.” That language tracks the Uniform Probate Code § 2-601 2 and similar statutes exist in other states. 3 ⁶²⁹ Estates and Trusts Article § 4-401 was recommended to the legislature by the Henderson Commission, 4 a commission appointed by the Governor to review and revise the testamentary law of Maryland. Estates and Trusts Article § 4-401 was enacted by the legislature in Laws of 1969, ch. 3, § l. 5 To illustrate the application of § 4-401, the Henderson Commission provided four examples of specific bequests. Those examples which are included in the Comment to the statute are: “i. ‘To A, if A survives the testator.’ Under this type of bequest, A will have to survive the testator by at least 30 full days in order to take the legacy.

If A fails to survive by at least 30 days he is presumed to have predeceased the testator, the condition of the legacy has not been met, the legacy becomes completely inoperative, and the anti-lapse statute does not apply. ii. ‘To A, if A survives the testator by 5 days or more.’ Under this type of provision, if A survives the testator by five days or more but not by 30 days, A will be entitled to the legacy. iii. ‘To A, if A survives the testator, but if it cannot be determined whether A survives the testator, A shall be presumed to have survived the testator.’ Under this provision, A would take the legacy if he survives the testator. iv. ‘To A.’ Under this provision, if A survives the testator by less than 30 days, A will be deemed to have predeceased the testator, but the provisions of the anti-lapse statute will save the legacy.” Carol Bratley argues that the legacy to her mother “vested” on the date of Mrs. Flory’s death and that Judge ⁶³⁰ Latham’s “application of ET [Article] 4-401 in this case is contrary to the legislative purpose.” The term “vested legacy” suggests the “fixation of a present right to either the immediate or future enjoyment of property.” Chism v. Reese, 190 Md. 311, 320 , 58 A.2d 643, 647 (1948); 6 Curtis v. Maryland Baptist Union Association, 176 Md. 430, 438 , 5 A.2d 836, 840 (1939); Safe Deposit & Trust Company v. Sheehan, 169 Md. 93, 107 , 179 A. 536, 543 (1935). On the date of Mrs. Flory’s death, October 27, 1983, Eleanor Bratley, even though alive, did not have a “present right to either the immediate or future enjoyment” of the bequest made to her. Judge Latham pointed out that Mrs. Flory placed a “condition of survivor-ship” on the legacy. Survivorship, as defined by the operation of ET Art. § 4-401, means that the legatee, Eleanor Bratley, was required to “survive the testatfrix] by 30 full days.” Hence, the legacy could not vest in Eleanor Bratley unless she lived until November 27, 1983.

See Pannone v. McLaughlin, 37 Md.App. 395, 411 , 377 A.2d 597 , 606 n. 9 (1977); In the Matter of the Estate of Wooten, 198 Mont. 132, 138-39 , 643 P.2d 1196, 1200 (1982). We agree with Carol Bratley that, by enacting ET Art. § 4-401, the General Assembly’s aim was to avoid multiple administration and taxation of estates. 7 The legislature, we think, also intended to apply ET Art. § 4-401 exactly as ⁶³¹ suggested in the Henderson Commission’s comments. 8 In Comment example i., the Commission used the wording: “To A, if A survives the testat[rix],” as illustrating that if A did not survive by 30 full days the bequest would be inoperative. Viewed in the light of Comment example i., it is apparent that Eleanor Bratley’s inability to survive Mrs. Flory by 30 full days renders the legacy inoperative. 9 Carol Bratley asserts that if ET Art. § 4-401 applies, then the anti-lapse legacy statute is controlling. Maryland’s anti-lapse statute, ET Art. § 4-403, provides, in pertinent part: “(a) Death of legatee prior to testator.—Unless a contrary intent is expressly indicated in the will, a legacy may not lapse or fail because of the death of a legatee after the execution of the will but prior to the death of the testator if the legatee is: (1) Actually and specifically named as legatee; (2) Described or in any manner referred to, designated, or identified as legatee in the will; or (3) A member of a class in whose favor a legacy is made.

(b) Effect of death of legatee.—A legacy described in subsection (a) shall have the same effect and operation in law to direct the distribution of the property directly from the estate of the person who owned the property to those persons who would have taken the property if the legatee had died, testate or intestate, owning the property.” ⁶³² That section does not apply to the instant case for the reason that, Mrs. Flory, by appending the clause “if living, otherwise this bequest shall fail,” indicated her intent that the legacy would lapse if Eleanor Bratley did not survive the testatrix. Patently, had Mrs. Flory not added the above quoted clause, ET Art. § 4-403 would have “saved” the legacy for the Bratley estate. The parties agree that the legacy to Eleanor Bratley was included in the will in “token esteem.” Of the eight personal bequests contained in the Flory will, three condition the bequest by the qualifying words “if living, otherwise this bequest shall fail,” while the remaining five are to the legatee “or to her [or his] heirs.” We are required to look to the plain meaning of the words in the entire will to find the testatrix’s intent. Cole v. Bailey, 218 Md. 177, 180 , 146 A.2d 14, 15 (1958); Marty v. First National Bank of Baltimore, 209 Md. 210, 216-17 , 120 A.2d 841, 844 (1956); Chism v. Reese, 190 Md. 311, 316 , 58 A.2d 643, 645 (1948).

We think Judge Latham had it right when he opined: “[T]hat to construe the words ‘if living’ as a ‘stated period’ of an instant beyond which Mrs. Bratley’s heirs were intended to inherit would be contrary to this ... intention. This is so especially in light of the very specific language providing for the failure of the bequest in the event she did not survive to personally [sic] enjoy it and the specific provisions in other bequests that the legacy pass to the legatee’s heirs. Example (ii), supra, of the comment to ET Section 4-401 is the type of stated period contemplated under the statute.” See Allers v. Tittsworth, 269 Md. 677, 684 , 309 A.2d 476, 480 (1973), where the Court concluded that the estate of a legatee who died twenty-five days after the testator had no claim, based on the will, against the estate of the testator. 10 ⁶³³ Mrs. Flory is presumed to have known both the common and statutory law when she executed her will and codicil, Allers, supra, at 686 , 309 A.2d at 481 ; Kearney v. Sascer, 37 Md. 264, 279 (1873); Tobiason v. Machen, 217 Md. 207, 211-12 , 142 A.2d 145, 147 (1958). Furthermore, she is presumed to have intended that the law prevail.

Tobiason, supra; Vance v. Johnson, 171 Md. 435, 440-41 , 188 A. 805, 807 (1937); Bartlett v. Ligon, 135 Md. 620, 626-27 , 109 A. 473, 476 (1920). She utilized language that made clear that the thirty day survival provision of ET Art. § 4-401 applied. As Judge Latham explained, “Given that Mrs. Flory was represented by counsel when she drew up her will, it is even more likely that Section 4-401 was taken into account when she placed the condition on the ... bequest.” See In the Matter of the Estate of