Marriott v. Marriott

Mitchell, J., delivered the opinion of the Court. Telfair W. Marriott, of Baltimore City, died on July 13th, 1937, leaving a last will and testament dated February 3rd, 1932; a codicil thereto, dated November 14th, 1932; and a second codicil, dated December 9th, 1935; which said will and codicils were duly admitted to probate by the Orphans’ Court of Baltimore City, and on July 20th, 1937, letters testamentary were granted thereon to the Safe Deposit and Trust Company of Baltimore, executor named in said will. The testator left real property of the approximate value of $12,000, and personal property sufficient, after the payment of taxes, debts, and expenses incident to the administration of the estate, to result in a net personal estate of approximately $20,000, consisting mainly of stocks, bonds, and cash. Mr. Marriott was survived by his widow, Lucy W. Brady Marriott, but left no child, descendant, parent, or brother or sister him surviving.

He did, however, leave surviving a number of nephews and neices, all of whom are mentioned in his said will. He made no devise or bequest to his wife, and she claimed her legal share of his estate, including $2,000 allowance, as provided by section ⁵⁷⁰ 127 of article 93 of the Code (1935 Supp.), by timely notice in writing to the executor of the estate. In response to the petition of the executor for a meeting of distributees, and summons thereunder, Mrs. Marriott filed her answer, claiming the $2,000 allowance above indicated, and one-half of the real and personal estate. And Joseph J. Gumbert, who under the second codicil to the will was bequeathed $1,000, and Joseph W. Cushing and Thomas Morris Gushing, the latter two being nephews of the deceased, who under the original will were each bequeathed $500 as pecuniary legatees, also filed answers claiming that there should be no diminution in the respective legacies bequeathed them by the testator, as a result of the allowance to the widow of her statutory and legal share of the estate of the decedent.

In addition to the pecuniary legacies above set forth, the testator bequeathed fifty dollars to James Edward Scott and Anita Scott, his wife; and, to such of his nephews and nieces as might survive him, he also specifically bequeathed all of his portraits, jewelry, silverware, books, pictures, furniture, and- household and personal effects, the same to be divided among them by mutual agreement btween said nephews and nieces, with power vested in the executor to make such division in event of their failure to agree. And, by the residuary clause of his will, the testator devised and bequeathed his remaining estate, either absolutely, or subject to certain trusts fully detailed in the will, to his nephews, William McKim Marriott and Haskins Neblet Marriott, and his nieces, Emily Grace Marriott and Abbie Marriott Byrnes; the executor of the estate being also designated as trustee in each of the trusts created by the will. Item 13 of the will contains the following provision: “I wish to state further that I have made no special bequest to my wife, Lucy W. B. Marriott, because of her present circumstances, and hope and request that she will not demand her dower or any part of my estate, and I do not appoint her my executrix because I desire to relieve her of all details.” ⁵⁷¹ In this situation, after a meeting of the distributees of the estate, held in pursuance of the provisions of section 148 of article 93 of the Code of Public General Laws of this State, and after testimony was taken and the claims of the respective legatees or distributees were presented and considered, the Orphans’ Court of Baltimore City, on June 1st, 1938, passed an order directing the distribution of the estate of Mr. Marriott, which, with respect to the matters in controversy in this repeal, provided as follows: “1. That Lucy W. Brady Marriott, the widow of said testator, is entitled to one-half of the personal estate of said testator remaining for distribution in addition to the widow’s allowance of $75. “2.

That said widow is not entitled to an additional sum of $2,000 under the provisions of section 127 of article 93 of said Code (1935 Supp.). “3. That said widow, by taking her legal share, is a co-owner with each of the legatees named in the will of said testator, without distinction, to the extent of one-half and that each legatee must bear the loss sustained by reason of the widow’s insistence upon her legal share without contribution from any of the other legatees. “4. That in pursuance of the foregoing-determination of this Court and in pursuance of the terms of the will of said testator as affected thereby, it is ordered this 1st day of June, 1938, that said executor shall make distribution of the personal estate of said decedent remaining for distribution after the payment of all proper costs, fees, taxes and other expenses incident to the administration of said estate, including said widow’s allowance of $75 and the costs and expenses of this proceeding, in the following manner, that is to say: “(a) Unto Lucy W. Brady Marriott, widow of said testator, one-half thereof, which shall include one-half of the chattels mentioned in the first item of the will of said testator. “(b) Unto Joseph W. Cushing, Thomas Morris Cushing, Haskins Neblett Marriott, William McKim Marriott, ⁵⁷² nephews of said testator, and Emilie G. McKim Marriott and Abbie Marriott Byrnes, nieces of said testator, the other half of said chattels mentioned in the first item of the will of said testator. “(c) Unto Joseph W. Cushing, nephew of said testator, the sum of $250. “(d) Unto Thomas Morris Cushing, nephew of said testator, the sum of $250. “ (e) Unto Joseph J. Gumbert the sum of $500. “ (f) Unto James Edward Scott the sum of $12.50. “ (g) Unto Anita Scott the sum of $12.50.” The remaining part of the order being then directed to the manner in which the residuary estate should be distributed. Three appeals from the aforegoing order are embraced in one record before us, as follows: (1) That of Mrs. Marriott, directed to that part of the order disallowing the $.2,000 claimed by her, as above set forth.

(2) That of Joseph W. Cushing and Thomas Morris Cushing, nephews and specific legatees of the testator, directed to that part of the order which, by reason of the assertion by the widow of her claim, apportions the consequent diminútion of the testator’s estate among the pecuniary and'the residuary legatees alike, and thereby ignores priority to the pecuniary legatees. (3) And that of Joseph J. Gumbert, pecuniary legatee, based upon the same premise which forms the ground of the appeal of the two specific legatees, mentioned in the next above subparagraph. Accordingly the two latter appeals will be disposed of together. The first comprehensive system of testamentary law was enacted in this state in 1798, and while various amendments have since been made to certain provisions of the original Act, in so far as the share of a widow in the personal estate of her husband is concerned, the Act of 1798 remained unchanged down to 1933, except that, under the provisions of sections 317 and 318 of article 93 of the present Code of Public General Laws ⁵⁷³ of Maryland, the widow was given a special allowance of $150 or $75, as the case may be, whether the husband died testate or intestate.

Other legislation, however, has enlarged her rights in real property of her deceased husband, still reserving to her the right of dower, upon her election as provided by the Act. Under the Act as originally passed, in all cases of intestacy in which the deceased husband was not survived by child, parent, grandchild, brother or sister, or the child of a brother or sister, the widow was entitled to the whole of the personal estate, after the payment of all proper debts and charges. Code, art. 93, sec. 125. In event, however, the intestate husband was survived by a child or children, or a descendant or descendants from a child, the widow’s share of the personal estate was limited to one-third.

Section 126, article 93. And in event the intestate husband was not survived by a child or descendant, but was survived by either father, mother, brother, sister, or child of a brother or sister, the widow’s share of the personal estate was limited to one-half. Section 127, article 93. While the Act of 1898, ch. 331, conversely made the aforegoing corresponding provisions of the Code of 1888 applicable to the rights of a surviving husband in the estate of his intestate wife, it did not otherwise amend the said provisions.

And such was the law of this state with reference to the rights of a widow in the personal estate of her husband, until the passage of chapter 386 of the Acts of 1933, which repealed and re-enacted section 127, above mentioned, so as to read as follows: “If there be a surviving husband or a widow, as the case may be, and no child or descendant of the intestate, but the said intestate shall leave a father or mother, the surviving husband or widow, as the case may be, shall have one-half. If there be a surviving husband or widow, as the case may be, and no child or descendant of the intestate, and no parent, but the said intestate shall leave a brother or sister, or child or descendant of a brother or sister, the surviving husband or widow, as the case may be, shall ⁵⁷⁴ take Two Thousand Dollars ($2,000), or its equivalent in property, or any interest therein, at its appraised value, and one-half of the. residue.” Code (Supp. 1935), art. 93, sec. 127. It is the construction of this latter section which gives rise to the appeal of Mrs. Marriott in the instant case; and it is ingeniously argued that, because of the fact that she was ignored in the will of her husband, he died intestate as to her, and that, therefore, her claims in Mr. Marriott’s estate should be adjusted and settled as though he had died intestate. Section 310 of article 93 of the Code provides that “every devise of land or any estate therein, or bequest of personal estate to the wife of the testator shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will.” Section 311 of the same article limits the time, and directs the manner, in which a surviving spouse may renounce a devise or bequest, or both, to her or him, by the will of the husband or wife, as the case may be, and elect to take in lieu thereof, respectively, a dower in lands and legal share of the personal estate, or a legal share in both the real and personal estate; in which latter case the renouncing spouse, if the deceased spouse be not survived by descendants, shall take “one-half of the lands, as an heir, and one-half of the surplus personal estate * * * and no more.” And section 314 of the above article is as follows : “But if in effect nothing shall pass by such devise, she shall not be thereby barred whether she shall or shall not renounce as aforesaid, it being the intent of this article, and consonant to justice, that a widow accepting or abiding by devise, in lieu of her legal right, shall be considered as a purchaser with a fair consideration.” In Hokamp v. Hagaman, 36 Md. 511 , a case in which nothing was devised or bequeathed to the wife by the will of the husband, it was held that: “The testator having, by his will, made no provision for his wife, by devise or bequest, there was no occasion for any renunciation ⁵⁷⁵ upon her part; and Code, art. 93, sec. 285 (now section 310), authorizing distribution to the widow (where there is a will, devising or bequeathing to her anything, upon her renunciation of the will.) of one-third of the estate, has no application to this case.

Nor does article 93, section 120 (now section 124) and the other sections, in regard to the distribution of estates of intestates, apply to a case like this, where there is a will disposing of the property of the testator. Hagaman having left no child, and his wife surviving him, she is entitled, according to the principles of the common law, as settled by the cases of Griffith v. Griffith’s Excrs., 4 H. & McH. 101, and Coomes v. Clements, 4 H. & J. 480 , to the one-half of his personal estate.” Referring to the case of Griffith v. Griffith’s Excrs., supra, it is found that in that case the testator devised a part of his real estateto his widow, but bequeathed all of his personalty to other persons. The widow did not renounce the will, and it was held, as theree were children, that she was entitled to one-third of his personal property after payment of debts and funeral charges. And in Coomes v. Clements, supra, the testator bequeathed the whole of his personal property away from his wife, but devised to her a part of his real estate, and died leaving no child or descendants.

The wife renounced the will as to the realty, and the court held that she was entitled to one-half of his personal estate after the payment of his debts. It would seem, therefore, that it is well settled by the decisions of this court that in all cases wherein a testator makes no provision in his will for his widow, no renunciation by her is necessary as a condition precedent for her to sustain her claim for common law or statutory rights. Pacholder v. Rosenheim, 129 Md. 455 , 99 A. 672 ; Barroll v. Brice, 115 Md. 498 , 80 A. 1035 ; Harris v. Harris, 139 Md. 187 , 114 A. 909 ; Kuykendall v. Devecmon, 78 Md. 537, 542 , 28 A. 412 . The question which now arises, and which, we may add, is one of first impression in this court, is whether ⁵⁷⁶ the widow, under all the facts in the instant case, takes under the statute of distribution in intestacy, which, as amended by the Act of 1933, ch. 386 (article 93, section 127), provides for the payment to the widow of the sum of $2,000 in addition to the one-half of the surplus estate; or whether section 311 of article 93, relating to the rights of a widow who renounces the provisions of a will, is controlling; and finally, since it was not incumbent upon her to file a renunciation at all, does she take under the common law.

In the case of Harris v. Harris, supra, it was definitely decided that the statute of distribution in intestacy had no application where a. decedent left a will. And whether the widow’s rights are derived from the common law, or from the statute providing for her share of the estate upon her renunciation, it is unnecessary for us to decide, as in either event she takes only half of the personalty as well as the realty of her husband. Article 46, section 3. It is clear that chapter 386 of the Acts of 1933 aifected estates of intestates only; and upon the authority of the cases hereinbefore cited, and in the face of the express language of the Act, it cannot be held to relate to cases in which the decedent has executed a will.

This observation would seem logical when applied as between the estates of intestates and those disposed of by will. In the former case the decedent has indicated no discrimination against his wife; and the Legislature, by the Act of 1933, has directed that she be more liberally dealt with than has been the law in this state over a long period of years. If it had intended to apply the same liberality to the estates of testates in those cases where the widow was ignored, it could, and doubtless would, have said so. This it did not do, however; and the reasonable inference is that, the testator having himself ignored the widow, the Legislature would not have been justified, under the circumstances, in the passage of an act that would have dealt more liberally with her in the disposition of the estate of the deceased husband.

We are therefore in accord with that part of the order ⁵⁷⁷ of the Orphans’ Court disallowing the $2,000 claim in Appeal No. 1, as above designated for the purposes of this opinion. . Turning now to the questions raised by Appeals 2 and 3, as above indicated, it is apparent that there is considerable conflict in the authorities, as to the right of specific or pecuniary devisees or legatees to exoneration at the expense of the general estate. It is urged on the one hand, that the testator must have meant that the persons to whom he made specific or pecuniary gifts should receive those gifts unimpaired, and that the general and residuary legatees should take only in the event of there being property available for the purpose. On the other hand, it is submitted that the testator must be regarded as having made such specific or pecuniary gifts subject to the possibility of his widow’s asserting her legal rights in derogation thereof.

In consequence of this conflict, it is held in some jurisdictions that the residuary estate must bear the whole loss of devised property occasioned by the widow’s election to take against the will, and cannot share with specific or pecuniary legacies if there remains enough to pay the latter, unless it is plainly shown by the will that the residuary legatee is a preferred object of the testator’s estate. Shannon v. Eno, 120 Conn. 77 , 179 A. 479 ; Pace v. Pace, 271 Ill. 114 , 110 N. E. 878 . In the latter case it is said: “Where legacies or devises are abated on account of a superior claim of the widow in consequence of her election the court will reduce legacies and devises of the same class