Persson v. Dukes

²¹⁵ Powers, J., delivered the opinion of the Court. Maryland has, as do most if not all of the states, a statute which provides that a legacy contained in a decedent’s will does not lapse because the legatee predeceased the testator. Statutes of this kind virtually turn around the common law rule, and although differing in some respects from state to state, they have a similar purpose. They express, for the vast majority of testators, a true intent which might otherwise go unexpressed, and at the same time, leave every testator entirely free to express a different intent.

When the testator’s intent is supplied by the statute, it is supplied only to fill a void. A testator’s expressed intent prevails over the statute. The question we are called upon to decide in this case is whether Maryland’s anti-lapse statute applied to the will of Dora E. Dukes. We shall recount the facts which give rise to the question.

In 1948 Hunter P. Dukes and his wife, Dora E. Dukes, lived in the District of Columbia. On 6 March of that year each executed a will. Each testator gave all of his property to the other, in identical words, except for the names. Neither made any further disposition of his property.

The same persons witnessed both wills. At a later time, not disclosed by the record, but not significant, Mr. and Mrs. Dukes became residents of Dorchester County, Maryland. They had no children. On 19 August 1975 each was fatally injured in an automobile accident which occurred in nearby Delaware.

Hunter died at 12:45 P.M. and Dora died at 2:35 P.M. on that day. Each will admitted to probate in the Orphans’ Court for Dorchester County, and letters of administration in each estate were issued to Thomas J. Dukes, an heir of Hunter. It goes without saying that upon Hunter’s death his will became operative, and under his bequest to Dora, she became entitled to his net estate. What happened to Dora’s estate, augmented by Hunter’s, when she died less than two hours later, depends upon whether the anti-lapse statute applied.

If it did, her bequest to Hunter would operate to ²¹⁶ give her entire estate to those persons who would take as the heirs of Hunter, if he had survived Dora and died intestate. If the statute did not apply, then Dora died intestate, and her entire estate would go to those persons who would take from her under the intestacy laws. As personal representative of the estate of Dora E. Dukes, Thomas J. Dukes filed a bill of complaint in the Circuit Court for Dorchester County against the heirs of Dora. The complaint recited the deaths of Mr. and Mrs. Dukes and the provisions of their wills.

It stated that the heirs of Dora were claiming under her will, 1 and prayed that the court render a declaratory judgment as to the legatees, heirs at law and persons entitled to the distribution and proceeds of Dora’s estate. After a hearing in December 1975 the court, Charles E. Edmonson, Judge, entered an order declaring that the persons entitled to distribution of the proceeds under the estate of Dora E. Dukes were the heirs of Hunter P. Dukes. This appeal by Dora’s heirs followed. The statute which, if applicable, would prevent the lapse of the legacy in the will of Dora to her husband is set out in Code, 1957 (1964 Repl.

Vol.) Art. 93, § 354, which said: “No devise, legacy or bequest shall lapse or fail of taking effect by reason of the death of any devisee or legatee (actually and specially named as devisee or legatee, or who is or shall be mentioned, described, or in any manner referred to, or designated or identfied as devisee or legatee in any will, testament or codicil) in the lifetime of the testator, but every such devise, legacy or bequest shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator.” Although substantial changes were made in the section by ²¹⁷ Ch. 3, § 1 of the Laws of 1969, 2 they apply, by the terms of that Act, to wills executed on and after 1 January 1970. It was so held by the Court of Appeals in Stewart v. Whitehurst, 268 Md. 589 , 303 A. 2d 393 (1973). The result of applying the statute in that case was stated by the Court of Appeals. It said, at 592: “In consequence, the provision made by Robert [Stewart, the husband, who survived his wife] for Suzette [Stewart, the wife, who predeceased the testator] passed directly to Suzette’s next of kin living at the time of Robert’s death, in such proportions as they would have received had she survived Robert and died intestate, Simon v. Safe Deposit & Trust Co., 190 Md. 468 , 59 A. 2d 199 (1948); Sykes, Probate Law and Practice § § 131-134 (1956).” Appellants contend that there are two reasons why the anti-lapse statute should not apply in this case.

This first contention, not previously considered by an appellate court in Maryland, is that because the wills of Hunter and Dora were mutual and reciprocal wills, executed pursuant to an agreement or compact between the testators, by which each left his property to the other and made no provision for a third person, the two wills constituted in legal effect a single will, operative as the will of the first to die, and inoperative and without legal existence as a will of the survivor. The second contention is that the circumstances surrounding the execution of the wills compel the finding of an implied condition that the legatee survive, and are more than sufficient to establish the intent of the testatrix that the lapse statute should not apply. We think that the contentions as made suggest parallel and substantially overlapping pathways to follow in the ²¹⁸ search for the answer to the single question, What was the testator’s intent? Appellants support their first contention with the reasoning and holdings found in the reported decisions in two cases in Iowa, one in West Virginia, and one in Tennessee, and with citation of 57 Am.

Jur., Wills, § 737 (1948). Because the Am. Jur. text is based upon and summarizes the holdings of the cases in the jurisdictions we have mentioned, and itself virtually duplicates a portion of Annot., 169 A.L.R. 9 , 86-89 (1947), which it cites,' we quote from it at length: “Statutes have been enacted in many jurisdictions designed to prevent, under certain circumstances, the application of the rule that a bequest lapses upon the death of the donee occurring prior to the death of the testator by providing that in such contingency, the heirs or issue of the deceased donee shall take in the absence of testator’s intention to the contrary. An important question presented in several cases concerns the application of such a statute in a case involving wills which are reciprocal in their bequests.

The question ordinarily arises where the wills are those of husband and wife and one of the spouses has died leaving his entire estate to the other. The question is whether upon the death of the latter, the heirs of the former will take the entire estate under the statute as the heirs of a donee whose death has preceded that of the testator. According to some authorities, mutual wills, that is to say wills executed pursuant to an agreement or compact between the testators by which each testator bequeathed his property to the other, making no provision for a third person either absolute or conditioned upon the death of both testators in a common disaster, constitute in effect a single will, being the will of the first to die, and has no existence as the will of the surviving testator. In other words, the rights of the one ²¹⁹ testator in the estate of the other are made to depend solely upon his or her surviving the other.

The property of the first testator to die passes to the surviving testator and upon the death of the latter without having executed a second will in the meantime, the property passes to his or her heirs as intestate property. The view is that an antilapse statute raising the presumption that a testator intends his bequest to go to the heirs of the devisee in case the devisee predeceases him, in the absence of a contrary intent shown in the will, does not apply so as to permit the heirs of the testator who died first to take under the will of the testator whose death occurred later, since there is in reality no will to which the statute can apply. To say that it was intended by a contract for wills that the agreement was to bind the survivor by his own will so as to permit his estate to pass to the heirs at law and distributees of the first to die, to the exclusion of his own next of kin, is to reach a result which is unnatural and unreasonable. Also, it is said that an absolute bequest with unrestrained power of alienation is repugnant to the notion that the survivor is under a contractual obligation to keep his property intact and his will unrevoked so that it will pass by virtue of the contract to the heirs at law and distributees of the deceased testator.

Likewise, a joint will which is strictly reciprocal, in that each testator makes the other the sole beneficiary, has been held to be the will of the one dying first, and not admissible to probate as the will of the survivor on his death. “That a propounded instrument, being one of two wills in which each testator bequeathed his property to the other, the wills containing no provision for a third person, had no further existence as the will of the surviving testator after the death of the other, may be asserted as a ground of contest. A statutory provision which directs the methods of revocation of a will and is exclusive of ²²⁰ other means of revocation does not change the rule so as to permit the will of the surviving testator to stand for the benefit of the heirs of the first testator, since the surviving testator had no will to revoke following the death of the other testator. “The question whether wills were executed for the sole purpose of having the surviving testator be the sole beneficiary of the testator dying first is essentially one of construction. Such question is to be determined in the light of the provisions of the wills, the circumstances under which the wills were drafted, signed, and attested, and the knowledge of the contents thereof possessed by both testators. The rule that extrinsic circumstances are not to be. considered in construing a will which is unambiguous does not preclude the inquiry whether one of two separate wills remains in force after the death of the testator under the other will.

Extrinsic evidence is admissible to show that the wills of husband and wife, although in separate and distinct instruments, were by agreement between the testators to be reciprocal in their provisions. In such instance, the extrinsic proof tends not to destroy or nullify the will of a deceased person or to change or vary its terms, but rather to designate and identify the entire instrument.” (Footnotes omitted). The same subject is treated in 79 Am. Jur. 2d, Wills, § 816 (1975), which cites cases from the ^ame jurisdictions.

For a discussion of the cases generally involving anti-lapse statutes, see Anno., 92 A.L.R. 847 (1934), and the supplementing discussion in Anno., 63 A.L.R. 2d 1173 (1959). In the former the text says, at 847: “While it is generally admitted that the rule laid down in these statutes is preferable to the old common-law rule, it is universally recognized that it is not an absolute rule, but only a rule of construction. As in all cases involving the meaning ²²¹ and effect of wills, the intention of the testator is the all-important consideration; and statutes for the prevention of lapses, like all other laws governing the construction of wills, must give way when opposed to this intention.” The holdings in the cases decided by the courts of Iowa, West Virginia, and Tennessee seem to stand alone in the country as the authority for what is said in 57 Am. Jur., Wills, § 737 (1948), and in 79 Am.

Jur. 2d, Wills, § 816 (1975). We shall examine those cases. 3 In Anderson v. Anderson, 164 N. W. 1042 (Iowa 1917), a husband and wife had executed wills, which the court described as mutual and reciprocal. Each left everything to the other, and made no other disposition. The court held that the wills were the result of a reciprocal agreement or understanding, and were to be treated together as a single will, its purpose served upon the death of the first, so that the surviving wife died intestate.

It held that Iowa’s anti-lapse statute did not apply because, legally, the wife left no will. The court said, at 1045: “In other words, the husband’s rights in the estate of his wife were by the will made to depend solely upon his surviving her. He did not survive her, and the will she had made in his favor, conditioned upon his outliving her, can never be made effective for any purpose at the demand of his heirs.” In Maurer v. Johansson, 274 N. W. 99 (Iowa 1937), the same court had before it a similar case. A husband and wife each executed in 1910 a will leaving everything to the other, and making no other disposition.

The wife died in 1933, and the husband took, under her bequest to him. The husband ²²² died in 1935, and the wife’s heirs claimed, by operation of his will and the anti-lapse statute. Citing Anderson v. Anderson, supra, the court held, at 101: “Mutual wills are those which are executed pursuant to an agreement or compact between two or more persons to dispose of their property in a particular manner, each in consideration of the other. Such wills, if they contain no provisions for third persons, constitute a single will and is the will of the first to die, and has no further existence as the will of the survivor.” The court discussed the argument made to it by the appellants in that case that the evidence was not sufficient to show that the wills were mutual or to establish a contract or agreement between the testators.

On this question the court listed several cases cited by the appellants in that case and said that those cases involved only differences in the quantum of proof required by the courts to establish a prior compact for mutual wills. It went on to say that under Iowa law the wills themselves, and the circumstances of their being drawn at substantially the same time, with the knowledge of both testators, are sufficient to establish that there was a contract. The court rejected the argument that a will may be revoked only in the manner provided by statute, and the argument that the anti-lapse statute applied, by saying that there was only one will, and that it had no existence as the will of the husband after the wife’s death. The Supreme Court of Iowa followed Anderson v. Anderson, supra, and Maurer v. Johansson, supra, in Maloney v. Rose, 277 N. W. 572 (Iowa 1938).

It seems clear that under Iowa law mutual wills by definition include as an element that they were executed pursuant to an agreement, or compact between the testators. The Supreme Court of Appeals of West Virginia, relying primarily upon Anderson v. Anderson, supra, reached the same result in Wilson v. Starbuck, 182 S. E. 539 (W. Va. 1935). In that case a husband and wife had executed identical wills at the same time and place before the same ²²³ witnesses. The wills had been prepared by the same lawyer.

Each left everything to the other, and made no other disposition. The court held that the wills and the circumstances proved that the wills were entered into pursuant to a contractual relationship between the testators. After quoting from Anderson v. Anderson, supra, the court said, at 542: