Cunningham v. Cunningham

Ubneb, J., delivered the opinion of the Court. The decree in this case dismissed the bill of complaint filed by a widow against the administrators of her deceased husband’s estate to require them to pay out of the personal estate certain mortgages on a house and lot which the widow and her husband held as tenants by the entireties and occupied as a home. The dismissal of the bill was expressed to be without prejudice to the plaintiff’s right to a credit on the second mortgage for one-half of the sum paid by the administrators on account of the debt which it secured, the mortgage having been assigned to them when they made the payment, and for certain rent collected by them from a tenant of the property. 'On this appeal it is to be determined whether the plaintiff is entitled to have the personal estate of her husband charged with the full amount of both mortgages. At the time of her marriage, in May, 1926, the plaintiff was twenty-seven, and her husband, John P. Cunningham, sixty-five years of age.

He had adult children, born of a former marriage. The plaintiff was without means, while her husband was possessed of considerable real estate, in Balti ³⁷⁵ more City and Howard and Anne Arundel Oounti.es, and personal assets worth about $12,000. By an antenuptial agreement they each relinquished any marital interest in the property of the other which might accrue to them respectively by virtue of their marriage. As provided in the agreement, however, Mr. Cunningham conveyed to his prospective wife an estate for her life in two lots of ground, subject to a life estate in himself which the deed reserved.

After they had been married about a year, Mr. Cunningham purchased the home in Anno Arundel County, in which they lived until the time of his death on August 1st, 1927. The price of the property was $4,500. Of that amount Mr. Cunningham made a preliminary payment of $100 and paid $3,000 as the proceeds of a loan, which he obtained from a building association, secured by a first mortgage on the property, and for the balance, $1,400, a second mortgage was accepted by the vendors. The deed was made to Mr. Cunningham and his wife as tenants by the entireties, and she joined with him in the execution of both mortgages and of the note which the second mortgage secured.

It was recited in the first mortgage that the loan of $3,000 was an advancement on thirty shares of the building association’s stock, on which specified weekly payments were required until the amount of the shares would be paid in full. Until the death of Mr. Cunningham the stipulated instalments were paid by him without any contribution from his wife. The second mortgage, by its terms, was to be payable .one year from its date, but Mr. Cunningham died before it matured. About a year before his marriage he had made a will devising and bequeathing his estate, in varying amounts, to a sister and his children then living, but the posthumous birth of a child of his second marriage rendered his will inoperative and it was therefore not admitted to probate.

It contained a direction to his executor to sell all of the testator’s property and to pay all his just debts. That provision is said to reflect upon the question of intent, on which, it is argued, the decision of the case should depend. ³⁷⁶ In Harris v. Dodge, 72 Md. 186, 191 , it was said by Chief Judge Alvey to be “a well established general rule, that where a debtor has a portion of his real estate under mortgage, whether with or without covenant to pay, and the debt is the debt of such debtor originally or by adoption, and not a charge primarily affecting the estate, and he makes his will devising the mortgaged estate (and there be no intention to the contrary either express or implied), in .such case, as between the devisee and the residuary legatee, though not to disappoint either general or specific legatees, the personal assets are the primary fund to be applied for the payment of the mortgage debt, in exoneration of the land. Howell v. Price, 1 P. Wms. 291, 294, and Cox’s note; O’Neal v. Mead, 1 P. Wins. 693; Hawes v. Warner, 2 Vern. 477; Serle v. St. Eloy, 2 P. Wms. 386; Bickham v. Cruttwell, 3 Myl. & Cr. 763.” The same principle applies in-favor of the heirs at law with respect to the exoneration of the realty by payment of the decedent’s mortgage indebtedness out of the personalty. Chase v. Lockerman, 11 G. & J. 185 ; 24 C. J. 145; 9 R. C. L. 102.

It is available also for the relief of a dower estate, though the widow may have joined with her husband in the execution of the mortgage sought to be thus discharged. Mantz v. Buchanan, 1 Md. Ch. 202 ; Hays v. Cretin, 102 Md. 695 . In the present case there is a state of intestacy, and the right of exoneration is claimed by one whose interest in the mortgaged property is not that of an heir or a dowress, because of the terms and effect of the antenuptial agreement (9 R. C. L. 599), but is solely the interest of a