Derlin v. Derlin

Boyd, C. J., delivered the opinion of the Court. . August Deriin died ¡in June, 1921, leaving a widow, Anna Catherine Deriin, and eleven children. He was married three timos and six of the children were by his first wife and five by the third — there being none by his second wife. He left a last will and testament dated the 19th of April, 1901, and a codicil to it dated June, 14th, 1915.

By the second clause of his wlill he gave all his household and kitchen furniture to his wife, and the third and fourth clauses are as follows: “Third: I recognize the legal rights of my said wife, Anna Catherine Deriin, to dower and thirds in my estate and the disposition of my estate hereinafter made is to he subject to her said dower and thirds and such other legal rights as she might have had I died intestate. “Fourth: All the rest and residue of my estate, real, personal and mixed, after deducting my said ³⁵⁴ wife’s dower and thirds, I give, devise and bequeath to all such of my children, whether by my first or third marriage (I have no child by my second marriage) as shall survive me, to be divided between them equally share and share alike per capita, the children of any child then deceased to take the parent’s share per stirpes.” By clause six, he authorized his executrix at any time, with the concurrence of at least a majority'of such of his children as shall then be adults, to sell at either public or private sale, on such terms as to them shall seem meet and just, any and every part of his real and leasehold property, or to lease the same and to divide the proceeds of every such sale among the parties interested in the property sold. He appointed his wife executrix of his will. By the codicil he left to three of his daughters by his first wife $1,000 each, stating that he had made absolute gifts of leasehold property to1 the other1 three, and left his residence to his wife. A bill of complaint was filed by the executrix in the Circuit Court for Baltimore City, setting out that a majority of the adult children had requested .a sale at public auction of all the fee simple and leasehold properties of which the testator died seised and possessed, and prayed, amongst other things, that the court assume jurisdiction over the sale of the real and leasehold properties of the estate of August Derlin and over the distribution of the proceeds of sales, etc. All of the children were adults excepting one by the third wife.

Nine of them answered, giving their assent to the sales, so that the proceeds thereof might be divided among the parties entitled, in accordance with the terms of the will' and codicil, and the minor child answered by a guardian ad litem in the usual formal way. An order was passed by the court directing the executrix to sell the real and leasehold properties mentioned in the bill of complaint, under the terms and in pursuance of the. powers set forth in the will, fixing the time of advertisement of sale at public auction, and that she dis ³⁵⁵ tribute the proceeds of sale to the parties entitled thereto under the jurisdiction of that court. The executrix reported sales at public auction of fee simple and leasehold properties amounting to $58,565 — all except one leasehold property being sold, which, by a later order, with the assent of a majority of the adult children, was awarded to the widow as part of her distributive share, in addition to a mortgage and some shares of stock named. The papers were referred to an auditor of the court, and a report was filed by him March 20th, 1922.

The only questions presented to us are by an appeal from, a decree sustaining exceptions to the audit, and declaring an agreement of March 27th, 3922, nnll and void and of no effect. The bill of complaint, was filed by Mr. MeKindless, solicitor for Mrs. Derlin, executrix, and a number of other papers were also filed by him. He is the husband of one of the daughters, by the first wife, and he represented in the lower court the children of the first wife, who are now appellants in this Court. In addition to the provisions in the will for the widow, the testator had in his lifetime purchased a number of properties which were conveyed to his wife and himself as tenants by the entireties — they being of the approximate value of $25,000', as stated in the agreement, referred to.

Some discussion arose as to- the interest in the real estate the widow would have — whether a tenth, under the rule of court, in lieu of dower, or onedhird under the Act of 1916, chap. 325, now in article 46 of volume 4 of the, Code. The case of Key v. Key, 134 Md. 418 , seemsi to be a, sufficient authority on the construction of that act, if any be necessary, to dispose of the question, taken in connection with clause 3 of the will quoted above, and Mrs. Derlin was entitled to one-third of the real estate of which her husband died seised. Mr. MeKindless, according to his evidence and what can be fairly ascertained from, that of the other witnesses, informed Mrs. Derlin that she was entitled to one-third, but as the children by the first wife thought she and, probably eventually her children, would by that and what the widow ³⁵⁶ got as tenant by tbe entireties, obtain out of tbeir father’s property an amount greatly in excess of what they ought to have, asi compared with what the children of the -first wife would get, it resulted in at least some intimations, if not threats, of proceedings to try to have the deeds, or some of them, conveying the properties to the husband and wife, set aside, unless some settlement was made. Charles A. Berlin, one-of the first set of children, took a very positive stand in reference to the matter, and he was the only child of the testator who did not consent to the -sale when, the proceedings were commenced.

After a number of conferences and a good deal of discussion with some of the feeling which generally results from family differences over money — especially between two sets of children — the widow and the children of the first wife entered into an agreement by which it was agreed that an audit which had already been stated should not be excepted to, if the widow gave a thousand dollars to each of the children by the first wife in addition to what they got by the audit; and the children of the first wife Avere to acquit, exonerate and release her from any claim they might have against her for or on account of the estate left by their father, and for or on account of any of the properties received by her as the surviving tenant by the entireties. By the audit, Mrs. Berlin wasi allowed $2,000' commissions, one-half of which she had agreed to give Mr. McKindless; he and his son were allowed a fee of $500, spoken of elsewhere in this opinion; the widow was only allowed one-tenth, instead of one-third, of the purchase money of the real estate sold; and each- of the eleven children of the testator was allowed $5,-099.63 — -while, if she had been allowed one-third, her share would have been increased by $9,104.08, and each child.would get $882.19 less, than allowed in the audit. The audit had been stated in pursuance of a letter written by Mr. McKindless to the auditor, dated March 14, 1922. He explained writing the letter by saying that the papers had been in the hands of the auditor for three or four weeks, and he had been expecting to have a petition to the court, signed by all of ³⁵⁷ the parties, requesting the audit to be made in the way it was, but Charles A. Berlin had declined to sign the petition, as he demanded more, which the other children of the first wife subsequently did.

The agreement dated March 27th, 1922, was drawn by Berlin A. McKindless, a son of Richard McKindless, and a member of the bar of Baltimore, was signed by the widow, Charles A. Berlin and B'erlin A. McKindless, as attorney for the other five children of the first wife. Charles A. Berlin lived in Washington, and he came over* to Baltimore prepared to file exceptions, to the audit if some other arrangement was not made, so that the children by the first wife, would get more, and he only had two or three days in which to file exceptions under the rules of court, if he determined to do so. Miss Amelia Berlin, Charles A. Berlin, Mrs. McKindless and another, spoken of as “Jennie” (who we understood was Mrs. Hendrickson), in the presence of Mr. McKindless, liad agreed upon what they would do, and they determined to demand $8,000, instead of something over $5,000 for each of them. Mr. McKindless told Mrs. B'erlin of their conclusion, and discussed it with her.

He said he advised her to get a lawyer other than himself when he found the position the children of the first wife, had taken; that on Monday or Tuesday night of that week he was telephoned to by Charles A. Berlin to come to Mrs. Berlin’s house, and he went there about 8.30 or 9 o’clock I’. M. with Charles. A. Berlin, who had met him and his son on the street; that Mrs. B'erlin told Charles A., as she had told him and Miss Amelia that afternoon, that she would give each one of them $1,000 in addition to what they received in the audit. They then discussed the question as to how she would raise the amount, and it was determined that she would give them the South Arlington Avenue property and forty-five shares, of stock.

Mr. Mc-Kindless instructed his son to draw' up the agreement, which he did — being the one of March 27th, 1922. The auditor’s, account, which allowed each of the eleven children $5,099.83, was filed March 20th, 3922, only allow ³⁵⁸ ing the widow one-tenth of the proceeds of the sales of the real estate, and on March 29th Mrs. Derlin filed exceptions to the audit and the same day Mrs. Ermer and Mrs. Harrison, children of the third wife, also filed exceptions. They were the same in substance, and were as follows: “That the said estate is not distributed in accordance with the terms of the will of the said August Derlin, deceased, and that the distribution account is not in accordance with the law in such cases made and provided as to the dower and thirds of Anna Gatherine Dferlin, widow of August Derlin, deceased.” The hearing of the exceptions began on April 17th, 1922, and the witnesses were examined orally before the court. On May 1st, 1922, a decree was passed sustaining the exceptions and declaring null and void and of no effect the agreement of March 27th, 1922.

This appeal was taken from the- decree. As by the audit Mrs. Ermer and Mrs. Harrison would have received more than they were entitled to, it is not shown that they had any standing to except to- it. They could not. except for the benefit of their mother, for although it may be that they will eventually receive more from her, if she gets all she is entitled to-, than they would under the audit, they do not have such interests in their mother’s share now as would entitle them to except to the- audit, because their mother does not get all she is- allowed under the law. But the widow had an interest which wo-uld be affected if the audit was ratified, and she was authorized to file exceptions to- it unless she has estopped herself by the agreement spoken of, or in some other way.

The agreement of March 27th was not entered into until after the audit was filed. Although the appellants received more by it than they are entitled to- under the statute, owing to the distribution to the widow being less than the law allowed her, they are, of course, entitled to appeal, as the agreement of March 27th was set aside by the decree. Whether that part of the decree was validly passed is the substantial question in this case, for if it was, Mrs. Derlin’s exceptions to the audit were properly sustained. Ho- valid objection could be made to Mr. McKindles-s’ representing the ³⁵⁹ widow and aiding her in the distribution of the estate simply because his wife was an interested party, as long as there was no conflict between the interests of the widow and those oi.' his wife, and others similarly situated.

He had been