Corte v. Cucchiara

Hammond, C. J., delivered the opinion of the Court. The Orphans’ Court for Prince George’s County ruled that a husband, whose wife died five days before the Circuit Court signed a decree divorcing her absolutely on the ground of separation for the requisite period by mutual agreement, could not take a statutory share of her estate, and ordered distribution according to the terms of her last will which made no mention of the husband, naming her son as executor and bequeathing her estate to her nephews and nieces living in Italy. The Orphans’ Court neither gave reason nor cited authority in support of its action. Counsel for those who take under the will urge that an Orphans’ Court may invoke and exercise equitable principles and that this Orphans’ Court regarded as done that which ought to have been done.

The legatees find a foundation from which to launch reliance on equitable maxims in the sequence of events in the divorce action. The bill was filed in December of 1967 in the Circuit Court for Prince George’s County. After hearing testimony the Master for Domestic Relations Causes recommended on October 3, 1968, that the wife’s prayer for an absolute divorce be granted. On October 14 the wife’s lawyer mailed a proposed decree to the clerk for presentment to and signature by the judge.

The clerk asked for a properly executed “Report of Absolute Divorce.” This was furnished on November 1. On November 7 the clerk notified the wife’s lawyer that because the testimony was over thirty days old, there would have to be compliance with the Seventh Circuit Rule S80 g (2) and Maryland Rule S74 b, requiring a military affidavit. On November 8, counsel submitted a new proposed decree and a new affidavit. On November 10 the wife died suddenly and unexpectedly.

On November 15, the court, unaware of her death, signed the decree of absolute di ¹⁶ vorce. The nephews and nieces say, and the Orphans’ Court apparently agreed, that the wife had established two days before her death that she was entitled to a divorce and under the equitable maxim they rely on, the decree signed five days after her death must be considered as relating back to two days before her death. It is plain to us that the husband was still a husband, with all the marital rights of and in property thereunto appertaining when the wife died on November 10, and that the purported decree of divorce of November 15 was a nullity. McCurley, Ex’r v. McCurley, 60 Md. 185, 189, 190 , involved an application by a wife for a divorce.

The husband died before a decree was passed. The Court said: “It is well settled that the death of either party to a divorce suit before decree, it being a personal action, abates