Colley v. Britton

Collins, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court for Prince George’s County, Maryland, dismissing the petition of Marie C. Colley that the previous order of that court, approving the first and final administration account of Norma Hardy Britton, Executrix of the Estate of Alice H. Read, deceased, appellee, be annulled, revoked and set aside. A suggestion of the death of Marie C. Colley was filed in this Court and Claude Carolyn Colley, Executor of the Estate of Marie C. Colley, was substituted as appellant in the place and stead of the said Marie C. Colley. Alice H. Read, a resident of Riverdale, Prince George’s County, died on January 17, 1954, leaving a last will and testament dated October 24, 1950, which provided, among other things: “ITEM 6.

I give and bequeath to my friend, Norma Hardy Britton, the sum of Two Thousand ($2,000.00) Dollars, my gold watch, my dog ‘Woofie’ and his dog house, chain, and my Persian cat, ‘Princess’; the said dog and cat are already in her keeping. But if the said Norma Hardy Britton shall predecease me, then and in that event ²⁴¹ this bequest shall be null and void and shall revert to my estate. ALL THE REST, RESIDUE AND REMAINDER of my estate, of every kind and description; real, personal and mixed; legal and equitable; wheresoever and howsoever situated; that which I now have, or may hereafter acquire, I give, devise and bequeath to Marie C. Colley, the widow of Claude C. Colley, absolutely and in fee simple forever. LASTLY, I hereby nominate, constitute and appoint my said friend, Norma Hardy Britton, attorney at 1010 Vermont Avenue, Washington, D. C., as executrix of this my last will and testament, and request the Court to allow her a very liberal fee for her services, because of the many favors she has rendered me over a period of many years, and I direct that she not be required to give bond or undertaking for the faithful performance of the trust in her reposed.” On April 13, 1953, Miss Read executed a codicil to her will of October 24, 1950, which provided: “I, Alice H. Read, being of sound mind, memory and understanding, do make, publish and declare this instrument in writing to be a codicil to my last will and testament, dated October 24th, 1950, which will be attached hereto. 1.

I give and bequeath to Frances Read Ford my Onyx and diamond ring; my platnum watch and my ring that has three red stones set in it, absolutely and forever. 2. To my friend, Mrs. Louise Allen C.S.P., I give and bequeath the sum of One Hundred ($100.00) Dollars, absolutely and forever, if she be living at the time of my death, but in the event she should predecease me, then and in that event, the said bequest shall revert to the corpus of my estate.” The will and codicil were admitted to probate on March 30, 1954. Norma Hardy Britton was granted Letters Testamentary. On March 18, 1955, Mrs. Britton filed a first and final account showing total assets of $4,439.61 and in which, among other distributions, she made the following: ²⁴² “This Executrix waives her commission and pays to the Register of Wills 1% tax $ 44.50 To Norma Hardy Britton, attorneys fee 500.00 To Mrs. Louise Allen, shown on page 3 100.00 To Norma Hardy Britton, as per terms of Will $2000.00 see Page 2 Less 7j4% Tax 150.00 1850.00 To Register of Wills Tax 150.00 To Marie C. Colley, rest and residue as per terms of Will $444.54 Less 7y% Tax 33.34 411.20 To Reg. of Wills Tax 33.34” This account was approved and passed by the Orphans’ Court on March 22, 1955.

Sometime about August 9, 1955, Marie C. Colley, the residuary legatee, filed a petition in which, among other things, she alleged: “* * * your petitioner made inquiry and learned and ascertained that there are certain flagrant inaccuracies and improprieties in the said First and Final Report to wit: (a) The payment by the said Norma Hardy Britton, as executrix, to herself as legatee of the sum of Two Thousand ($2,000.00) Dollars out of said estate was a double distribution, and should have been disallowed because the said Norma Hardy Britton had arranged with the testatrix, on or about the first day of May, 1953, to receive the said sum of $2,000 through the medium of United States Savings bonds bought and held by the said testatrix under the term, ‘POD to Norma Hardy Britton’, (b) The inheritance tax, if payable on account of the receipt by the said Norma Hardy Brit-ton of the proceeds of United States Savings Bonds as aforesaid, was not a proper charge against the other assets of said estate. (c) The sum of Five Hundred ($500) Dollars, ²⁴³ charged against said estate as a fee for legal services by the said Norma Hardy Britton, was improper and should have been disallowed by reason of the fact that the said Norma Hardy Britton rendered no legal services and is not licensed to engage in the practice of law in the State of Maryland.” She asked that the first and final account be revoked and set aside, and that Mrs. Britton be required to make a proper accounting and distribution as executrix of the estate. After answer filed by Mrs. Britton, as executrix, testimony was taken on the petition and answer before the Orphans’ Court. From an order, signed by two judges of that court dismissing the petition of Marie C. Colley, an appeal was taken by Mrs. Colley’s attorneys to this Court.

As above stated, after her death, Claude Carolyn Colley, executor of her estate, was substituted as appellant. Testimony before the Orphans’ Court showed that Miss Read was born June 22, 1874. She first met Mrs. Britton in 1925 in the office of the law firm handling Miss Read’s mother’s estate. Miss Read had gone there for an advancement from the estate, stating that she had no money.

This was refused by the law firm. Mrs. Britton, however, gave her some money. They had been intimate friends since that time. Mrs. Britton had also been her attorney for many years.

The aforesaid will of October 24, 1950, was drafted for Miss Read by Mrs. Britton. Miss Read took this will to her doctor’s office where it was witnessed by the doctor and his secretary. Mrs. Britton testified that, when Miss Read insisted that she be left $2,000.00, she told Miss Read: “I told her, I said, Miss Read, suppose I am dead. You don’t know my people, * * * I said put in here if I die first it will revert to the estate.

And she said very well, Mrs. Britton, do that.” On April 11, 1953, Miss Read wrote a letter directed to Mr. Herbert B. Lord, bank official of National Savings and Trust Company of Washington, where she had a safety deposit box, and which letter read as follows: “I have asked Mrs. Norma Hardy Britton, my attorney, to see you and get Two Thousand ($2,000.00) Dollars of my bonds (which will ²⁴⁴ be four $500.00 bonds) out of my safty box in your Bank and give them to you and ask you to send them back to the U. S. Treasury and have them put ‘Payable on death to Norma Hardy Britton’. This is done so that she can take the bonds immediately upon my death and not have to wait for the administration of my estate. Please believe me when I tell you that she did not insist upon this; it is entirely my own idea.” (Italics supplied). Pursuant to the authority of this letter, on May 1, 1953, the United States Government reissued to Miss Read $2,000.00 in Series G bonds made payable on death to Mrs. Britton.

In the answer to the petition now before us filed by Mrs. Britton as executrix of Miss Read’s estate, she made affidavit to the fact that she never arranged with Miss Read “to change any bond; there was never any conversation on the subject, and this executrix did not know, nor had she any idea that such change had been made, until the safty deposit box in the National Savings & Trust Company was opened, so a Deputy D. C. Tax Collector, a deputy Register of Wills of D. C., and an official of the said bank could examine the contents of said box and make inventory of same.” (Italics supplied). In her testimony she denied that she typed the letter. However, later in her testimony she stated that she did not remember writing the letter or anything about the $2,000.00 in bonds. Upon opening Miss Read’s safety deposit box, Mrs. Britton called Mr. Nelson Colley.

She testified that she told Mr. Colley about the $2,000.00 in bonds payable to her at death and said: “I don’t know whether that would be an advancement or not. I don’t know. If I were you I’d go and get a lawyer and investigate.” The Orphans’ Court, who saw and heard the witnesses, found that Mrs. Britton entered the safety deposit box on April 20, 1953, and that there was an inescapable conclusion that Mrs. Britton “effected the change in the bonds to make them payable on death to her.” In reference to the attorney’s fee in the amount of $500.00 allowed in the account to Mrs. Britton, who was not a member of the Maryland Bar, the Orphans’ Court stated: “Although such practice is now forbidden by this Court, Britton ²⁴⁵ was, at the time, acting in accord with the general practice of this Court then prevailing and permitted.” The appellant contends that the words “This is done so that she can take the bonds immediately upon my death and not have to wait for the administration of my estate”, in the letter of April 11, 1953, to the bank for the purpose of making the bonds payable to Mrs. Britton on death, was a plain indication that Miss Read was substituting the bonds for the $2,000.00 legacy to Mrs. Britton in the will and that these bonds adeemed the legacy. When a parent, after the date of the will, makes a gift to a child in substantial amount of similar property as that contained in the will, an ademption by advancement results.

The courts of equity adopted this rule to prevent a child from getting a double portion, it being supposed that each child would be treated equally by the parent, as ordinarily each child is entitled to the same claim upon his bounty. This presumption, however, can be rebutted by evidence that the parent did not intend a gift, made subsequent to his will, to be an advancement. Miller on Construction of Wills, Sec. 144; Parks v. Parks, 19 Md. 323 ; Smith v. Darby, 39 Md. 268 ; Harley v. Harley, 57 Md. 340 ; Dilley v. Love, 61 Md. 603 ; Wallace v. DuBois, 65 Md. 153 , 4 A. 402 ; Selby v. Fidelity Trust Co., 188 Md. 192 , 51 A. 2d 822 . In the instant case Miss Read does not stand in loco parentis to Mrs. Britton.

Of course, in this case the provision in the will, like the transfer of the bonds, could have been altered, changed, or destroyed by Miss Read during her lifetime. There therefore existed a locus poenitentiae in Miss Read. Milholland v. Whalen, 89 Md. 212 , 43 A. 43 , 44 L.R.A. 205 . Ordinarily an advancement is a pure and irrevocable gift and must result from a complete act of the intestate in his lifetime by which he divests himself of all property in the subject.

However, in some cases and under some circumstances it may not take effect in possession until after the death of the intestate. Clark v. Willson, 27 Md. 693, 700 ; Harley v. Harley, supra; Edwards v. Freeman, 2 P. Wms. 440, 446 ; 2 Wms. on Executors, 1289, 1291, 1292. It was said in Clark v. Willson, ²⁴⁶ supra: “It is not necessary to constitute an advancement, that the provision should take place in the parent’s lifetime. A portion secured to the child in futuro, or to commence after the father’s death, or upon a contingency that has happened, or to arise within a reasonable time, is an advancement.

Edwards v. Freeman, 2 P.