Hall v. Elliott

Henderson, J., filed the following dissenting opinion, in which SybERT, J., concurred and Bruñe, C. J., concurred in part. I disagree with the conclusion reached by a majority of the Court in this case and state my reasons as concisely as I can. I shall not attempt to restate the facts. As I read the decision, it repudiates what is called “the earlier rule” laid down in the Maryland cases, and overrules them.

This seems to me to be peculiarly unfortunate, because this Court has sedulously observed the rule of stcM'e decisis, and stressed the need of certainty, in the field of testamentary law. If lawyers cannot rely ²¹⁷ upon past adjudication, in advising their clients, they should be licensed as soothsayers. Professor Reno, in the article cited ( 17 Md. L. Rev. 285 , 298), points out that at least under the earlier cases there was no question but that the loss suffered by a specific legatee caused by a renunciation was not compensable. The renunciation, removing from the estate the specific property bequeathed, operated in the same manner as an ademption, a term used to describe the removal from the estate of the specific thing bequeathed, prior to the testator’s death, rendering it impossible to carry out the testator’s declared intention.

The disappointed legatee was not entitled to reimbursement for the simple reason that the loss came about by operation of law. It is true that ademption does not result where there is a mere change in the form of the property bequeathed. The cases of Johns Hopkins University v. Uhrig, supra (substitution of bonds for stocks by reason of a corporate reorganization), and Seifert v. Kepner, supra (liquidating dividend substituted for stock in a case where the bequest was of “the proceeds” of certain stock) do not turn on any question of indemnification. They rest on the proposition that the specific property is still in esse, or at least capable of being traced directly into the substituted res.

In the instant case the ten shares the widow was compelled to surrender to the estate by her election were still in esse, and the five shares remaining, after the allocation of one-half to her, were available to satisfy, pro tanto, the specific bequest. Hence there was no ademption of these shares. The majority opinion seems to brush aside the whole theory of ademption, and to substitute speculation as to an unexpressed intention for a definite rule of law. 1 find nothing in the cases to justify this. In Darrington v. Rogers, 1 Gill 403, 410 (1843), Judge Dorsey, for the Court, said: “The election of the widow, to stand upon her legal rights, does, it is true, occasion loss to the appellants; but it is a loss resulting by operation of law, and against which the testator only could have provided an indemnity.” That is still the law.

In Levin v. Safe Dep. & Tr. Co., 167 Md. 41, 45 , Chief Judge Bond, for the Court, said: “Adherence to the plan under the altered conditions requires, we think, ihat the remainders in the widow’s half should be held ²¹⁸ inoperative now; the renunciation having the same effect as ademption of a specific legacy.” In Webster v. Scott, 182 Md. 118, 121 , Judge Ogle Marbury, for the Court, in regard to the effect of renunciation upon certain stock specifically bequeathed, said: “The result is a situation similar to that of an ademption * * *.” The Webster case appears to be the latest case upon the subject. The majority opinion deals at length with the doctrine of sequestration. This is a recognized equitable doctrine, applied in numerous cases beginning with Hinkley v. House of Refuge, 40 Md. 461 (1874).

The doctrine is applicable only to cases where, by reason of a renunciation, the property left to the renouncing spouse is surrendered to the estate, and available to compensate disappointed legatees out of the windfall. But this is a far cry from the situation in the case at bar, where there is no windfall and no property surrendered except the five shares the employees receive under the decree. The majority opinion makes whole the specific legatees at the expense of the others, on the basis of an assumed intention which the testator deliberately refrained from expressing. The prior Maryland cases, as I read them, do not require or justify the adoption of such a rule.

The majority opinion relies heavily upon Mercantile Trust Co. v. Schloss, 165 Md. 18 , and states that the case was not one of sequestration. I cannot agree. The prayer of the bill was that “the benefit intended for the widow should be sequestered to compensate * * *” the specific legatee for the loss of an undivided interest in leasehold property valued at $7,000. Judge Digges for the Court said (p. 27) : “The second question presented * * * is whether or not the doctrine of sequestration should be applied in order to compensate Mrs. * * * White for the loss of one-half interest in 402 West Saratoga Street.

The renunciation of the widow, * * *, so far as regards the remaindermen’s interest in the estate, was equivalent to her death, and had the effect of accelerating the remainders and making them become payable presently, instead of at the time designated in the will.” The remaining beneficiaries were damaged “to the extent that their respective shares were diminished by the enlargement of the widow’s share, and it benefited them by accel ²¹⁹ erating or pushing forward the time at which they would receive the full benefits of their remainder interest.” Judge Digges went on to say (p. 29) that the rule (of no compensation) stated in the earlier cases was “firmly settled,” but that in those cases “nothing was left in the estate which had been devised or bequeathed to the widow, after her renunciation and the receipt of her legal share, which could be sequestered for the purpose of reimbursing or making whole specific legacies or devises * * *.” It is true that the court did not go through the form of determining the then value of the renounced life estate. But it seems perfectly clear that the award of $3,500 to Mrs. White as compensation, out of an estate appraised at $135,000, was not in excess of the value of the life estate. I find nothing in the briefs of counsel or the opinion of the court to support a claim of a broader right than that of sequestration. The suggestion that the income should have been accumulated during the widow’s life, and applied to the liquidation of the claim (as was apparently the relief granted in Hinkley, supra) is answered by the acceleration.

The failure to value the life estate was probably due to the fact that the decree below was claimed to be a consent decree, wherein all parties agreed at least to