Matthews v. Fuller

Bruñe, C. J., delivered the opinion of the Court. Lawrence Matthews, the appellant, as the devisee under the will of Amelia Roy, of certain land in Charles County, Maryland, brought a suit in ejectment in 1953 against Clara Josephine Fuller, the appellee, who had purchased the land in question from the heirs of Amelia Roy in 1944 in ignorance of the existence of any will of the decedent. Judgment was entered for the defendant and the plaintiff appealed. The facts are not in dispute, and briefly are these: Amelia Roy, a resident of Charles County, died on April 25, 1944, being seized and possessed of fee simple title to the tract of land in question, containing twenty and three quarters acres, more or less, with improvements thereon, located in that County.

On June 20, 1944, her sister, Mamie Boston, applied for letters of administration in the Orphans’ Court for Charles County, stating in the petition that she had made a diligent search, but ⁴⁶ had found no will of the decedent, and that Amelia Roy had died intestate and that her heirs at law were the petitioner, the said Mamie Boston, and Eleanor Thompson and Georgie Berry, a niece and nephew respectively of the said Amelia Roy, both of whom resided in Philadelphia, Pennsylvania. On the same day as the petition was filed, the Orphans’ Court passed an order finding that Amelia Roy had died intestate, and granting letters of administration to Mamie Boston. The estate was closed by a final Administration Account passed January 16, 1945, showing no personal property but payment of bills and administration costs totaling $127.40 and collateral inheritance tax on the real estate in question in the amount of $110.45. By deed dated September 9, 1944, and recorded January 29, 1946, among the Land Records of Charles County, Maryland, Mamie Boston and Alexander Boston, her husband, and Georgie Berry and Eleanor Thompson, both unmarried, who were described in the deed as the heirs at law of Amelia Roy, who died intestate, conveyed to Clara Josephine Fuller, the appellee, the land in question for a consideration of $1,800.

On February 5, 1952, Thomas C. Carrico, an attorney in La Plata, Md., who had taken over the former office of a deceased member of the Bar, discovered in some of the former occupant’s old files a paper writing dated January 16, 1936, purporting to be the Last Will and Testament of Amelia Roy, and filed it with the Register of Wills for Charles County. By this paper Amelia Roy bequeathed one dollar ($1.00) to her sister Mamie Boston and one dollar ($1.00) to her sister Carrie Anderson and gave all the rest and residue of her estate, including the real estate here in controversy, to her cousin Lawrence Matthews, the appellant in this case. After the prescribed notices to parties in interest, the Orphans’ Court for Charles County passed an order on September 2, 1952, admitting to probate as the Last Will and Testament of Amelia Roy the aforesaid paper writing of January 16, 1936. ⁴⁷ The appellant waited until limitations had run on the time for filing a caveat and then instituted the ejectment suit against the purchaser from the heirs at law of the decedent. It is agreed that none of the parties in interest had any knowledge whatsoever of the existence of a will of the decedent prior to the discovery of the document in 1952; and hence there can be no possible basis for any idea of concealment of the will.

There is likewise nothing to suggest laches on the part of the appellant. No fault can be ascribed to either of the parties or to the heirs for the unfortunate situation which has developed, in which one of two innocent parties must suffer. The question is which one: the devisee under a will which, through no fault of his, was not discovered and probated until nearly eight years after the death of the owner; or the grantee, who, in the interim, became a bona fide purchaser for value from the heirs at law of the owner, who was supposed by both the heirs and the purchaser to have died intestate, and upon whose estate letters of administration had been granted on a finding of the Orphans’ Court that she had died intestate. This case falls in a blank spot in the testamentary statute law of this State and is one of first impression in this Court.

Similar cases have apparently arisen only infrequently in the highest courts of other States, and there is a division of authority. See annotation in 22 A. L. R. 2d 1107, et seq., and cases therein cited. A number of the cases in other States have involved some additional elements which affected the decision — perhaps, laches, estoppel or a statute having either a direct effect, such as one specifically undertaking to protect the bona fide purchaser, or having an indirect effect, such as a statute of limitations or a statute to prevent the concealment or withholding of wills. As stated above, we have no statute dealing specifically with the relative rights of the innocent purchaser from heirs supposed to have title and of the devisee named in a belatedly probated will. ⁴⁸ We have no statute of limitations fixing the time within which a will must be offered for probate.

Sewell v. Slingluff, 57 Md. 537, at 554-555 ; Bagby, Maryland Law of Executors and Administrators, 2nd Ed. (1927), Sec. 24. We do have a statute making it an offense to neglect “wilfully” for a period of three months after knowledge" of the death of a decedent, to deliver his will to the register of wills or to the executor therein named (Code (1951), Article 93, Sec. 370), but this has no application in the present case. Sections 151, 152 and 408 of Article 27 of the Code (1951 Ed.) are also inapplicable. They define as offenses, and impose penalties for, stealing or altering a will (Section 151), destroying or secreting a will delivered to a person for safe-keeping (Section 152) or larceny of a will (Section 408).

These statutes do, however, support the statement in Pilert v. Pielert, 202 Md. 406 , 96 A. 2d 498 , that “Public policy demands that the probate of wills should be made speedily.” Section 370 of Article 93 and Section 408 of Article 27 are both derived from Chapter 101 of the Acts of 1798, which is the source of much of our present testamentary law. Section 1 of sub-chapter 1 of Chapter 101 is included in Section 343 of Article 93 of the Code (1951). As then enacted (subsequent amendments not being material in the present case) it provided that “All lands, tenements and hereditaments, which might pass by deed, or which would, in case of the proprietor’s dying intestate, descend to, or devolve on, his or her heirs or other representatives, except estates tail, shall be subject to be disposed of, transferred and passed, by his or her last will, testament or codicil, under the following restrictions.” (The next three sections were concerned with restrictions upon, and requirements of, valid wills.) In Johns v. Hodges, 62 Md. 525 , one of the questions presented turned on the effect of the probate or denial of probate of a will disposing of real estate under Chapter 315 of the Acts of 1831, which had amended Chapter 101 of' the Acts of 1798. By Section 1 of the Act of 1831 the probate of wills of personalty, or realty, or both were ⁴⁹ put upon the same footing, except that “said probate as concerns real estate, shall be deemed and taken only as prima facie evidence of such will * * *.” In that case a will had previously been contested and the caveat had been sustained and probate had accordingly been denied.

The devisee under the will sought to relitigate its validity, and relied upon the proviso above quoted. This contention was rejected, and the denial of probate, as distinguished from the grant thereof, was held conclusive as to real estate, just as it was with regard to personal property. That proviso has long since disappeared, but Johns v. Hodges is still of interest for its discussion of the history and development of our law with regard to probate. At page 534, the court said: “Before the Act of 1831, Ch. 315, the probate affected only wills of personal estate.

The Act of 1798 made no provision for wills of real estate being proved or contested; but that Act did make provision for the custody of such wills by the Register of Wills, and for the punishment of any person who should fail to deliver a will left in his custody to the Register within a certain number of months. If a will of personal estate was refused probate, it could not be offered for probate, by express provision of the statute, in any other county; but the right of appeal was given, and the decision of the appellate tribunal was made conclusive. * * * The question here is, shall the same rule be applied to wills of real estate under the Act of 1831, or the Code which retains its provisions * * *?” At page 536 the Court also said: “Probate being provided for and its contest carefully secured, it must have been intended to make probate a condition precedent to the instrument being used as a will for any purpose. If probate was not necessary why not sue in ejectment at once, without tendering it for probate?” The Court (at page 537) explained the proviso making the probate of the will prima facie evidence only in favor of the devisee as due to the “favor with which the law has always regarded the heir” and the ancient doc ⁵⁰ trine of worthier title, which regarded title by descent as more honorable than title by purchase (which, of course, included title by devise). The abolition of the proviso may have wiped out this preference, but the requirement of probate (aside from questions such as fraud, concealment or estoppel) still exists as a condition precedent to the will being used as such.

It is, of course, true that the title of a devisee to real estate generally relates back, upon probate of the will, to the date of death of the testator. It is also true that administration upon the estate of a decedent can be granted upon the basis of intestacy only if his dying intestate is either “notorious” or is proved to the satisfaction of the Orphans’ Court. Code (1951), Article 98, Section 19; Stouffer v. Stouffer, 110 Md. 368 , 72 A. 843 . Also, although the grant of letters is said to be a judgment in rem, it does not prove intestacy if a will is later offered for probate (Emmert v. Stouffer, 64 Md. 543 , 3 A. 293 , 6 A. 177 ; Bagby, Maryland Law of Executors and Administrators, 2nd Ed., Sec. 36) ; and if letters of administration have been granted, but a will is later proved, the executor therein named may obtain letters testamentary and the grant of such letters to him “shall be construed as a revocation of the letters of administration.” Code (1951), Article 93, Section 39.

It is to be noted, however, that under Section 40 of the same Article, the acts of the administrator, done according to law, before any actual or implied revocation of his letters, shall be valid and effectual. Section 119 of Article 93 provides that if any decedent, resident or non-resident of this State, who has been dead for not more than twelve years, leaves one or more parcels of real estate, but, so far as may be known, no personal estate, in Maryland, the Orphans’ Court of the county or city in which such real estate, or a part of it, is located may grant letters testamentary or of administration on the estate of such decedent and may direct that notice by publication be given to creditors. It then provides that “No purchaser of such real estate shall be ⁵¹ required to accept title thereto unless such notice has been given as is authorized by this section and until the period for the filing of such claims has expired; and no claim not filed within the period specified by such notice to creditors shall thereafter be asserted against such real estate in the hands of a purchaser for value.” This section does not refer to the devisee under an unknown and unprobated will, but it does apply whether the decedent died testate or intestate. It seems by its silence with regard to devisees under unknown wills of supposed intestates to assume that a bona fide purchaser must be on guard against creditors of the decedent, but not against such possible devisees.

There seems