Hess v. Chalmers

Powers, J., delivered the opinion of the Court. Helen Lee Dietrich died in November, 1971, holding record title to certain leasehold real estate in Anne Arundel County, and other real estate elsewhere in Maryland. Surviving her were two daughters, Patricia Dietrich Hess and Helen Neal Dietrich Curley, as well as two sisters, Rita V. Chalmers and Antoinette L. Frazier, and a brother, William E. Smith. Her divorced former husband, George A. Dietrich, also survived her.

In her will, which named Francis X. McDonough as executor, Mrs. Dietrich left her residuary estate to her daughters, her sisters, and her brother. Asserting that under a 1963 deed they were remaindermen in the Anne Arundel County real estate, and that it did not pass by their mother’s will, Mrs. Hess and Mrs. Curley, the daughters, filed a bill of complaint for declaratory and ultimate relief in the Circuit Court for Anne Arundel County, on 18 January 1973. They named as defendants the decedent’s two sisters, her brother, and her executor. In 1963 Mrs. Dietrich and her then husband had conveyed various real estate to a corporate straw party, which had simultaneously reconveyed to Mrs. Dietrich for life, and after her death to her daughters and her husband, with the habendum clause expressed in these terms: “TO HAVE AND TO HOLD the said described lots or parcels of ground and premises, unto the said Helen Lee Dietrich, for and during the term of her natural life, with full power and authority in the said Helen Lee Dietrich (without the joinder or consent of the remandermen [sic] hereinafter mentioned) to sell, lease, mortgage or otherwise dispose of said property, except by Last Will and Testament, or any part thereof, or any interest ²⁸⁶ therein, including the life estate and remainder therein, at any time during her natural life in such manner that the purchaser or purchasers, lessee or lessees, mortgagee or mortgagees, grantee or grantees, thereof will not be liable to see to the application of the purchase or mortgage money or rent; and immediately after the death of the said Helen Lee Dietrich, then the said property, or so much thereof, or any interest therein, as may not have been disposed of by the exercise of the powers herein mentioned, subject to such mortgages as may be then a lien against the said property, to the said Helen Neal Dietrich, her daughter, Patricia S. Hess, her daughter, and George A. Dietrich, her husband, as joint tenants, and not as tenants in common, their assigns, the survivor of them * * *.” In a release and an agreement executed in 1968, apparently in connection with a then pending divorce proceeding in Baltimore, George A. Dietrich agreed that the real estate was the individual property of Helen Lee Dietrich.

Shortly thereafter, in 1968, Mrs. Dietrich, exercising her power to dispose of the property, conveyed it to a corporate straw, which reconveyed absoiüte ownership to her. The bill of complaint sought to have the court declare that Mrs. Dietrich’s 1968 deed, purporting to exercise her power of disposition of the property, was invalid, as beyond the scope of the power, having as its only purpose the divestiture of the remainder, by converting her life estate into a fee simple estate. The case was called for hearing before Judge James L. Wray in the Circuit Court for Anne Arundel County on 28 November 1973. Judge Wray directed that George A. Dietrich be added as a party plaintiff.

Counsel were heard, but no witnesses were called. The judge stated that he would be glad to hear any evidence or receive any exhibits on the proper exercise of the power. It appears that all agreed that the question was primarily one of law, and that the relevant facts were not disputed. Judge Wray said: ²⁸⁷ “Well, I certainly have no objection to your submitting a stipulation of facts but I would think it would not have to be very long.

And I take it that if I find it necessary, that I may also take notice of the Court file from Baltimore City and the exhibits to the bill of complaint as exhibits.” All council agreed. We are told that the parties filed statements and memoranda of law. Other motions were also filed, and argued before the judge. On 20 May 1974 a memorandum opinion and decree, dated 17 May 1974, was filed.

The opinion in effect declared that the plaintiffs had no rights. 1 The decree dismissed the bill of complaint. Upon motion of the present appellants the court, on 14 June 1974, signed an order staying the operation of the decree, pending further order of the court. The stay order was filed on 17 June 1974. Appellants’ petition for reconsideration and reargument was heard