Jaworski v. Wisniewski

Offutt, J., delivered tie opinion of tie Court. Ignatius Wisniewski and Bronislawa, his wife, on August 8tl, 1911, by deed, duly executed and recorded, acquired as tenants by tie entireties tie leasehold interest in a property described as 1101 S. Kenwood Avenue in tie city of Baltimore, subject to an annual ground rent of $31.25. At that ¹¹¹ time Mrs. Wisniewski had four children by a former marriage, Andrew, Joseph, Pete and Stanislaus Fiksak. In 1914, as a result of domestic difficulties, she and her husband appear to have separated for a time, and as an incident of the separation • she bought her husband’s interests in the Ken-wood Avenue property, and in order to transfer it she and her husband joined in a deed assigning it to George O. Wiedersum, who is turn assigned it to her, so that after that the title to it stood in her name alone.

In 1923 she conveyed the property to Isabel T. Brady, who immediately reconveyed it to her. On Uovember 28th, 1924, she executed in duo form a last will and testament, and on the same day she died. The deed from Isabel T. Brady to her contained this clause: “To have and to hold the above described property with its appurtenances unto the proper use of the said Bronislawa Wisniewski for and during the term of her natural life and no longer and with full power and authority to said Bronislawa Wisniewski to sell mortgage lease or in any manner dispose of or encumber the property hereby conveyed or any interest therein, including the absolute estate with the right to dispose of and consume the proceeds of any sale mortgage or lease thereof in such manner as she may desire without any obligation on the part of any purchaser mortgagee or lessee to see to the application of said proceeds and with full power and to the said Bronislawa Wisniewski to dispose of the property above described by her last will as she may deem proper the intention being that said Bronislawa Wisniewski in the exercise of said power shall have the right to convey or will all interest in said property both life estate and remainder and in default of her exercising the said power to sell or will then with remainder over from and immediately after the death of said Bronislawa Wisniewski to James Fiksak, Henry Fiksak, Pete Fiksak and Joseph Fiksak their heirs personal representatives and assigns in equal shares as tenants in ¹¹² common subject to the payment of the annual rent of thirty-one dollars and twenty five cents on the first day of January and July in every year.” On December 16th, 1924, the appellee filed a written renunciation of the provisions made for him in his wife’s will, and on December 26th, 1924, he filed the bill of complaint in this case against the four sons of his deceased wife and the executor of her last will, in which he asked (1) that the Brady deeds be set aside, (2) or, that they and the will of Mrs. Wisniewski in connection with the appellee’s renunciation be construed, (3) that trustees be appointed to sell the property and distribute the proceeds, and (4) that the defendants be restrained from prosecuting any action to eject the appellee from the property. The several defendants answered, testimony was taken, and on March 5th, 1925, a decree was signed setting aside the deed from the decedent to Isabel T. Brady, and from Isabel T. Brady to- her, declaring that Mrs. Wisniewski was possessed of the property at the time of her death, and that the appellee had the same interest'therein that he had in the other personal property of the 'decedent which passed under her will.

From that decree the defendants appealed. The appeal raises three questions: First, had the appellee as the husband of Bronislawa Wisniewski any interest in the property involved in this proceeding after he had united in the deed conveying it to Wiedersum in order that he might convey it to' her; second, assiiming that he did have such'an interest, was he fraudulently deprived thereof by the conveyances from Mrs. Wisniewski to Isabel T. Brady and from her to Mrs. Wisniewski, and third, if he was, is he estopped by his conduct from asserting that fact in this proceeding The evidence material to a consideration of these questions is uneontradicted and may be briefly stated. Frank Jaworski, the executor of Mrs. Wisniewski’s estate; testified that at about the time, the Brady deeds were executed Mrs. ¹¹³ Wisniewski asked Mm to' place certain monies which she had in the Gibraltar Building Association in her name in trust for herself and Jaworski, subject to the order of both, the balance at tbe death of either to belong to the survivor, and directed him, upon her death, to pay $200 for “masses and the priest and two hundred dollars for the new church” to “fix” her lot and erect a tombstone, and to divide the balance among three of her sons. That at that time she said that she did not want her husband to have anything, that she “'would not give him a straw,” and that she “had fixed her property or money that he would not get anything”; that she wanted it to go to her sons; that her sons, were sending her money but that her husband was not.

He also testified that she and her husband lived together in the Kenwood Avenue house continuously until her death. John A. Brady, an attorney at law, testified that ho drew the deeds conveying her husband’s interest in the property i<: her in 1914. In referring to the circumstances connected with that transaction he said: “The title continued in them until 1914 when there seemed to be a separation between the two people and they came to- me and asked me if the property could be put in the wife’s name. There was considerable negotiation in reference to the transfer, the husband was bolding out for more money and was dickering with his wife the same as he would with a stranger, and the tiling was carried on for perhaps four or five weeks and they made four or five visits, 1 think, to me together, and then each one came singly.

At last it was agreed that the wife could have the property transferred to her providing she paid the husband one-half of the purchase price of that property. There had been no change in the market values at that time and I adjusted the matter, figured it right down to (nen the cost of recording the paper and left the equity in the property to- be worth so much money, and she paid her husband one-half the amount of that equity according to the purchase price of the property at that time, and she took the property there subject to the building- association mortgage, ¹¹⁴ which, she continued to pay weekly. * * * Mrs. Wisniewski, said- — she spoke very broken English — she said: “My man pays nothing, pay no taxes, no water, no ground, pay mono money, no eat, no book. My man no good. My boy is-good.

My boy pay taxes and my boy pay it, me got house- and man got no house.” That is the way she talked. He was arrogant at the time. He said, “Go out; I want no- more-house. You take house, you have boys, you and boy take-house and give me my money and I get out.” He further-testified that the plaintiff, at that time, said: “ ‘Give me my money out of this -house and give the house to you and your boys.’ That is not the exact language.

It was broken English, but that is whakhe said.” He also prepared the Brady deeds, and speaking of those-transfers he said: “She came to me and said she wanted the property transferred to the boys. I asked her then where-the boys were. Two of them were on the ocean. She did not know where they were.

And one she had no idea where-he was. She did not know whether he was dead or alive. * * * Q. You mean to tell us now when she came to-you in 1923 and asked you to draw this deed she did not say anything about her husband and you did not ask her anything about her husband? A. I asked her if her husband' was doing any better than what he had been doing, and she-says, ‘No.’ She said, ‘Man no good, man no money, did not pay nothing.’ ” He also testified that the husband was not considered at all, in connection with that transaction; that he, Brady, did not. think that the husband had any right in the matter, because the woman was making a gift to her sons.. There was also testimony that Mrs. Wisniewski and.her husband often quarreled, that she complained that he did not support her,-that on one occasion she had him arrested for non-support, that she herself was a hard-working woman,, that she saved substantial sums from her earnings, and that her savings and what she received from her sons substantially made up the estate of which she was possessed at her- death-In her last will, made just before her death, after be ¹¹⁵ -queathing $100 to her husband, $200 to her son Stanislaus, and $400 to Rev. Benedict Przenielewslri for the use of St. Oasimir’s Church and for “'Holy Masses to be said for the repose” of her soul, she left all the residue of her property -to her three sons, Andrew, Joseph and Pete Fiksak.

Returning to the three questions raised by the appeal, we will consider first the marital rights of the appellee in the Kenwood Avenue property, and the effect of his sale of his interest therein to his wife. As the husband of Bronislawa Wisniewski, he became entitled at her death to one-third of the personal estate then owned by her (C. P. G. L. of Md., article 93, section 126), of which share she could not by will or otherwise deprive him, Ibid. 326; Barroll v. Brice, 115 Md. 502 ; Safe Deposit and Trust Co. v. Gittings, 103 Md. 495 , although she had the power during her lifetime to dispose of her personal estate by sale or gift, as she saw fit, provided that she parted in good faith with the ownership and control thereof. Brown v. Fidelity Trust Co., 126 Md. 184 . This right to receive a part of the estate of which his wife was possessed at her death is usually referred to as a marital right (Willis v. Jones, 43 Md. 425 ), and depended upon the appellee’s status as the husband of the decedent at the time of her death and upon the statutes of distribution .and descent.

And while he had no control over or interest in her separate estate during her life time (C. P. G. L. of Md., article 45, section 4), nevertheless his right to receive a part of the estate possessed by her at her death was substantial and definite, and will, unless he released or surrendered it, be protected against any fraudulent alienation o± her property designed to deprive him of that right, where the substantial ownership of the property was reserved to her. Rabbit v. Gaither, 67 Md. 94 ; C. P. G. L., article 93, section 326; Barroll v. Brice, 115 Md. 502 . The question therefore is whether, by uniting in the deed with his wile to Wiedersum, he released or surrendered that right in the Kenwood Avenue property. The deed itself is not before us, but we infer from the references to it found in the record ¹¹⁶ that it was the ordinary deed of bargain and sale and conveyed whatever interest the grantors had in the property.

C. P. G. L. of Md., article 21, section 12. The primary purpose of it was not to release or surrender any marital rights