Collins v. Carman

Eccleston, J., delivered the opinion of this court, Eliza Carman, who was the wife of Wm. Carman, became insane some time prior to the date of her husband’s will, and so continued until her decease, which occurred more than four years after his death and the grant of letters testamentary on his estate. The will named the appellee with two others as executors and trustees. The others having renounced, the appellee took upon himself the trusts reposed in him.

The clauses in the will which are deemed important in the present controversy are the following: “ Out of the income of rny estate and during the lifetime of my wife, Eliza, my trustees above named will pay all taxes and repairs of my lot and house in High street, in the city of Baltimore, in which I order and direct my trustees to take no account of the furniture, so as to have it removed or disposed of; the said lot, house and furniture to be used by my wife Eliza, free from any cost or charge to her during her life. ⁵²³ My trustees will take a» inventory of my books and furniture, and give in special charge to the housekeeper, that they be not wasted or destroyed by neglect or imposition on the liberality of my wife. My trustees will employ a housekeeper, who will be kind and careful of my wife Eliza, and I would give the preference to Ann Bell or Elizabeth Miller, with the wages and necessary maintenance for the coiafort of my wife Eliza.” “ My trustees will pay to the niece of my wife, to wit, Susan H. Jones, fifty dollars per month, and monthly, for the expenses of all the comforts and necessaries that may be necessary for the family of my wife. My trustees will examine the accounts of Susan H. Jones, and for all moneys she may produce satisfactory vouchers for, they shall allow and pay her four per cent, out of other moneys than the fifty dollars per month above mentioned. Any expense of doctors or funeral charges for my wife, is not included in the fifty dollars per month above named.” No renunciation, by the widow, or by any one in her behalf, was made, or attempted to be made, during her life; but the provisions in the will for her benefit were fully complied with by the appellee.

Shortly after her decease letters of administration on her estate were granted to the appellant, and very promptly he filed in the orphans court a paper purporting to be a renunciation of the devises and bequests made for the benefit of his intestate. The right to make such a renunciation was denied and opposed in that court by the appellee. Subsequent to this proceeding the present bill was filed, for the purpose of obtaining a decree declaring the renunciation of the appellant effectual and sufficient; or if, from any cause, it should be deemed informal or imperfect, the complainant prays that he may be considered as revoking, by his bill, the renunciation. He then prays for an account of the personal estate of William Canaan, and that his executor, (the appellee,) may be required to pay to the complainant such sum as he may be entitled to receive, in right of his intestate, from the personal estate of her deceased husband.

The renunciation professes to renounce “al! the bequests ⁵²⁴ and provisions made to or for the benefit” of the widow, and claims in lieu thereof her share of the personal estate, and an account of the rents and profits of the realty. The bill admits that the appellee faithfully fulfilled all the directions of the will, in relation to the support and care of the widow, and that in his accounts he had received credits for such disbursements. And the complainant states, that in case his renunciation shall be available in law, he is willing to make all just allowances in regard to the expenditures which have been made for the widow, upon an account to be properly stated; in which account he supposes the proportions of rents and income from real estate, accruing in right of the widow, so far as received by the defendant, will also be brought into view. These facts are deemed sufficient to present the questions necessary to be decided.

The first of which is, whether the provisions of the will, in regard to the widow, are such devises of realty and bequests of personalty, within the meaning of the act of Assembly, as created any necessity for a renunciation, assuming that where a widow i,s rendered incapable of renouncing, on account of insanity, her right of dower and share of personalty will be as effectually barred by the statute, as will similar rights of a sane widow, who fail? to renounce in time. Inasmuch as the act of 1798, ch. 101, sub-ch. 13, speaks of a devise or bequest “to the wife,” it is insisted that the meaning and design of this language has not been complied with by the provisions made for the benefit of Mrs. Carman; nothing, in reality, having been given to her, but the gifts are to others., for the purpose of taking care of her.. Notwithstanding this is the argument now urged by the appellant, it is evident that the bill concedes, or is based upon the assumption, that a renunciation would have been necessary if the widow had been of sound mind. And the written argument of the solicitors for the complainant in the court below, which is also before us, is a very faint denial, if a denial at all, of the necessity for a renunciation in regard to ⁵²⁵ the realty.

On this subject they say: “But our position is, that even if, in respect of the real estate, it can be said that there is a devise to her of the house for life, yet, that in respect of the personal estate, there is no bequest to the wife.” But independently of any actual or supposed concession, either in the bill or the argument, in our opinion, the provisions of the will, in relation to both species of property, were such as made it necessary for a renunciation under ordinary circumstances. In Farwell vs. Jacobs Adm’r, 4 Mass., 634 , the will directed the executor to support, “in sickness and in health,” the testator’s aged father. The executor having failed to execute the trust, letters of administration de bonis non cum testamento annexo were granted to the defendant. He also neglected to support the father, who instituted the suit to recover in damages a sum equivalent to the support and maintenance directed by the will.

Upon a statement of facts the court held, that the plaintiff was entitled to a judgment against the estate in the hands of the administrator. Such a bequest, it was said, could be enforced by a bill in chancery, and damages are given at law, in consequence of there being no chancery court in that State. On page 636, C. J. Parsons says:•“The direction to support and maintain the plaintiff results from the bounty of the testator declared in his will, and must be considered, as to the remedy, as a legacy.” And therefore the case -was considered to be within the provisions of their State law, which enacts, in general'terms, “that any person having a legacy given him may sue for and recover the same at common law;” page 635. By the will in Tolson, et al., vs. Tolson, et al., 10 G. & J., 159 , the testator gave the residue of his estate to his seven sons, and their heirs and assigns; and then added : “I request my seven sons, above named, to take care of their brother, John Tolson, and his family.” John and his family were in abject poverty, but received no support or relief from his brothers.

The provision in reference to the family was held void for uncertainty, but the seven sons were considered as ⁵²⁶ trustees for John, and responsible, in equity, for the payment of such sum as would be proper to compensate for his maintenance since his father’s death, and to secure the future payment of an annuity. If those two cases are to be regarded as recognizing correct principles, we do not perceive how it can be successfully contended that this will gives nothing “to the wife” of the testator. The lot, house and furniture are to be used by her free from cost or charge to her during her life. The sum of <|50 per month is to be paid by the trustees to Susan H. Jones, for the express purpose of furnishing “the comforts and necessaries” required ‘ for the family” of the wife.

In addition to this monthly sum, her doctor’s bills are to be paid out of the husband’s estate, and upon all moneys disbursed by S. H. Jones for family expenses, she is to receive from the trustees four per cent. Under these provisions who was the object of the testator’s bounty,' S. H. Jones or the wife? Most undoubtedly the latter. If so, had she become sane before six months subsequent to the testator’s decease, and had renounced “all claim to any bequest or devise made” to her by the will of her husband, and elected to take in lieu thereof her dower or legal share of his estate, we suppose it could not be said that, nevertheless, S. H. Jones, or any one else, could then have claimed any thing further under the clauses of the will which have been referred to.

If we are right in this supposition, these provisions, in legal contemplation, must be gifts to the wife, within the meaning of the act of 1798. But admitting it possible to entertain a doubt in relation to the $50 per month being a gift to the wife, how can there be any in regard to the house and furniture? The will declares they are “to be used by my wife Eliza free from any cost or charge to her during her life.” Thus she is entitled to the use of both for life. It is said, however, that the trustees are to take an inventory of the furniture and to give it in special charge to the housekeeper, and this is relied upon as manifesting an intention not to give it to the wife; but if it is to. ⁵²⁷ be in charge of the housekeeper, she is so to have it in charge for the use of the wife.

It is only a cautious provision made in consequence of her insane condition, so as more effectually to preserve the property for her use. The house and furniture are for her use during life, and the testator sp'eaks of the family as ‘'the family” of his wife. The remaining question, which has been argued with great ability, is an interesting one, and not clear of difficulty. It presents the inquiry, whether an administrator of a deceased insane widow can renounce the will of her husband, and claim such share of his estate as she would have been entitled to had she been sane and made a renunciation in due time; or as if there had been no will, notwithstanding she lived four years and upwards after her husband’s decease, and during that period received, regularly, the benefits or gifts provided for her in the- will.

And supposing the administrator has no authority to-make such a renunciation, can he, nevertheless, by virtue of the widow’s insanity, claim he? legal share of the estate, notwithstanding the provisions of the will for her benefit? Can he do so because the statute does not create any bar to an insane widow’s right to dower, or claim to her legal share of personalty, even although the will of her husband gives her both real and personal property? After a careful consideration of the subject, we’ think he cannot make the renunciation, or claim any thing beyond what is given by the will. In saying this, we wish to be understood as not intimating any opinion upon the question, whether a court of equity can or cannot make an election or renunciation for an insane widow, during her life and in proper time; This case does not call for a decision on that point.

The argument in behalf of the appellant insists, that at common law, a widow had an acknowledged legal right of dowerj and also, a legal right to a share of the personal estate, subject only to the payment of the just debts and claims against her husband. Neither of which rights could she be deprived of by his will without her consent. In support of which, the cases of Griffith vs. Griffith, 4 H. & McH., 101 , and Coomes vs. Clements, 4 H. & J., 480 , have been referred to. JB uU ⁵²⁸ although these cases treat of the common law rights of h widow, and decide what those rights were, under the facts disclosed in them, they do not decide how far the common law, in regard to the case before us, has been abrogated or altered , by our State legislation.

The first case was decided at May term 1798. The will gave to the wife during widowhood, a portion of the real estate, provided she should claim no thirds in the testator’s land, in “Rumney Neck';” making no other devise of realty to her,, and containing no bequest of personalty in her favor. She made no renunciation. And the question before the court was, whether she was entitled to one third of the personalty, the same having been all bequeathed to the children of the testator?

The court gave judgment in her favor. This decision and the act of 1798, are not at all in conflict. The will gave no part of the personal estate to the widow, nor does it declare any intention that the devise of realty should be in lieu of her legal share of the personalty. The 4th sec. of the 13th sub-chapter of the act, declares, that if only a part of the real estate, or only a part of the personal estate is given, the gift shall bar the widow “of only the real or personal estate, as the case may require;” providing, however, “that if the devise of either real or personal estate, or-of both shall be expressly in lieu of her legal share of one or both, she shall accordingly be barred, unless she renounce as aforesaid.” Since 1798, there would be no necessity for a renunciation to entitle a widow to her share of the personal estate, in a case similar to that of Griffith vs. Griffith, where the will gave her real estate only,, and declared that to be in bar of her claim to thirds in a particular part of the testator’s realty.

The question involved in the second case, (Coomes vs. Clements) did not call for a construction of the act of 1798, as to its effect upon a case like (he present. This is apparent from the concluding remarks of the distinguished counsel for the appellee, on page 482. And Justice Johnson says: “The act of 1798, ch. 101, passed before the will in question was made, restricts the widow’s interest, whether children or not, to one third in cases to which the restriction applies. The ⁵²⁹ case before the court does not come within the restricted exception mentioned in the act; and as 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.” After stating what is claimed to be a widow’s rights at common law, it is contended by the appellant, that, although the language of the act of 1798, on the subject of her renunciation, is very general and comprehensive, yet it can only apply to a widow of sound mind, who is capable of exercising a proper discretion, whether she will abide by her husband’s will, or claim her legal rights; that those rights were not created by the act, but existed at common law, and are recognized by the provisions of the statute; that in the case of a sane widow she is left fully at liberty to renounce the devises and bequests made to her by the will of her husband, and insist upon her legal claims; that the act does not design to deprive her of her common law rights, unless she sees fit to surrender them, by voluntarily assenting to the will, or neglecting to renounce in proper time.

In support of these views, the 5th section of the 13th sub-chapter, has been relied upon, which declares it, to be the intent of the act, “and consonant to justice, that a widow accepting or abiding by a devise in lieu of her legal right, shall be considered as a purchaser with a fair consideration.” Seeing that a widow who is insane, possesses no discretion, is incapable of making an election or' renunciation, or of doing any act which can legally affect her property, it is said'to follow, necessarily, that the provisions of the statute, on the subject of renunciation cannot apply to such widow, and her common law rights will remain unimpaired, notwithstanding her husband’s will may make devises and bequests in her favor, and there is no renunciation. The ill effects of an opposite theory have been eloquently portrayed; and particularly the evil of subjecting an unfortunate wife to the danger of being but poorly provided for by a wealthy, but unfeeling husband, and leaving her remediless. It would be very proper that the supposed evil or hardship, should exert an influence in giving construction to a statuter ⁵³⁰ where its language is ambiguous or doubtful, but when plain and explicit., care should be taken not to allow such considerations to exert an undue influence. In regard to the effect of hardship, our late learned Chancellor, in Young vs. Mackall, 3 Md., Ch.

Dec. 406, said, “Considerations of hardship have been pressed upon the court, and to such considerations, when at liberty to listen to them, I by no means profess to be insensible. But I sit here not to make, but to administer the law, according to my best judgment, as I find it enacted by the legislature, or settled by the courts.” In a case where the claims of a widow were concerned, Judge Gaston saysr “Where the language of a statute is free from ambiguity, there is much hazard of misconstruction by departing from it in search of the supposed policy of the legislature.” 2 Dev. Eq. Rep., 344 , Craven vs. Craven.

The 1st section of the 13th sub-chapter of the act before us, declares that “every devise of land, or any interest therein, or bequest of personal estate, to the wife of the testator, shall be construed to be intended in bar of her dower in lands, or share of the personal estate, respectively, unless it be otherwise expressed in the will.” The 2nd section provides, that “a widow shall be barred of her right of dower in land, or share in the personal estate, by any such devise or bequest, unless within ninety days,”' (now extended to six months,) “after the authentication or probat of the will,” she shall renounce and quit claim to any bequest or devise made to her in the will, and elect to take in lieu thereof, her dower, or legal share of the estate of her husband. The only exception to the bar thus created, is to be found in the 5ih section; which enacts, that if, in effect, nothing shall pass by such devise, the widow shall not be barred thereby, whether she renounces or not. Every valid devise or bequest is, therefore, made an effectual bar, unless it be removed by a renunciation. And until that is made the bar remains.

The law admits of no excuse for a failure to renounce. If she makes no election within the time prescribed, the law makes it, without stopping to enquire why or for what reason she made none. Thus it appears material changes have been made in the ⁵³¹ common law. Various acts on this subject have been passed by our legislature, but the one of most importance, now to be considered is that of 1798.

Under this we conceive that when a man dies leaving a will, making valid gifts of real and personal estate to his wife, she has not, as she had at common law, a vested right to dower in his land, or to a legal share of his personalty, but her vested rights are under the will by virtue of the statute law. The law clearly gives to the husband the power by his will to bar, or extinguish the common law rights of his widow, unless she thinks proper to quit all claim to the property conferred upon her by the will. And to effect the husband’s object the wife need not declare her assent; if however, she desires to defeat it, she must manifest her intention to do so, by an express dissent. And such dissent is an act, which by the very terms of the law, must precede her becoming entitled to or vested with, those rights which she might have claimed but for the will; for the act declares, site shall be barred of those rights, if she does not renounce and quit claim to the devises and bequests, and make her election to take in lieu thereof her dower, or legal share of the estate.

It is this election which vests in her the right of dower or legal share, in lieu of what the will had given. (See 2 Devereux’s Eq. Rep., 344.) Whether from design, neglect, or from other cause, the widow fails to make such renunciation, the result is the same. It cannot therefore be said, with propriety, (as has been argued