Rabbitt v. Gaither

Miller, J., delivered the following opinion. This case was assigned to me to prepare the opinion of ■the Court therein. The record is a large one and the testimony voluminous. The questions of l'aw involved are important, and those of fact depend upon a close scrutiny ■of the testimony and great care in deducing conclusions therefrom.

The duty thus imposed I discharged to the best of my ability, but the conclusions I have reached have not in all respects met the approval of my brothers who heard the case with me, and they are in favor of the •affirmance of the decree in toto. The parties, however, in this, as in every other case, are entitled to the best considered judgment of each Judge who heard it, and instead of a silent dissent I have deemed improper to express my views at some length, the excuse therefor being such as I have stated. The bill was filed by Susanna Y. Gaither to have dower laid off and assigned to her in all the lands of her deceased husband, James B. Gaither, who died in February, 1885, and the only controversy made.in this Court relates to her right to dower in what is called the “ Locust Grove farm” containing about one hundred and fifty acres. Mr. Gaither was twice married.

His marriage with the ■complainant took place on the 17th of June, 1879, about seven months after the death of his first wife. He had no children by either marriage, but had taken to his home when she was a child, Emily Y. Cecil, a grand-niece of his first wife. This child was treated as a daughter by him and his wife, and was raised and educated by them as such. They were both devotedly attached to her, and she with equal devotion and affection regarded them as her parents.

The legal title to all the lands mentioned in the bill, except this Locust Grove farm, was devolved ⁹⁸ upon Mr. Gaither by the will of his first wife, executed in August, 1871, and it appears that when he was first married he had very little property of his own. He purchased the Locust Grove farm at a trustees’ sale on the 10th of November, 1879, after his second marriage, for $2300 cash, and paid the money to the trustees, but before the sale was ratified he procured an order from the Court by which-Emily Y. Cecil was substituted as purchaser in his stead, and the Court afterwards ratified the sale as made to her as purchaser, and the trustees thereupon executed a deed conveying the land to her. This deed bears date the 17th of January, 1880, recites the order substituting Emily Y. Cecil as purchaser, and conveys the property to her absolutely and unconditionally. Miss Cecil, the grantée, afterwards, on the 30th of November, 1882, married James E. Rabbitt, and she and her husband subsequently in October* 1884, sold and conveyed the land to John S. Crawford, one of the defendants to the bill.

Erom these facts, about which there is no dispute, it is apparent that Mr. Gaither was never vested with the legal title to this farm. By his purchase from the trustees and payment of the purchase money he acquired an equitable interest therein, but, so far as appears from the face of the papers, he held such equitable title at least not longer than up to the date of the deed from the trustees. If then there was nothing more in the case, there would be no difficulty in deciding that the complainant was not entitled to dower in this land. In this 'State the right to dower has always been regulated by the common law, with the single modification thereof made by the Act of 1818, ch. 193, which provides that “a widow shall be entitled to dower in lands held by equitable title in the husband, but such right of dower shall not operate to the prejudice of any claim for the purchase money of such lands, or other lien on the same.’.’ Code, Art. 45, sec. 5.

This statute was construed by the Court of Appeals in ⁹⁹ Hopkins vs. Fry, 2 Gill, 359 , and Stump vs. Miller, 3 Gill, 304 , and in the latter case the Court declared that this Act “ does not say, and it ought not to be construed to mean, that the widow shall be entitled to dower in lands held by equitable title in the husband at any time during the coverture.” By this the Court undoubtedly decided that this Act does not give to the wife the same right of dower, indefeasible except with her consent, where the husband holds or acquires an equitable title, that the common law gives her where he holds or acquires the legal title, and such has been its accepted construction ever since that decision was made. It has always been held that an absolute sale and transfer of an equitable interest in land, by the husband alone during his life, will bar all claim to dower. It was so decided by the Chancellor in Bowie vs. Berry, 1 Md. Ch. Dec., 452, and this doctrine is in no wise impugned by the decision of this Court in Bank of Commerce vs. Owens, 31 Md., 320 .

In that case the husband was seized of the legal title in the land upon which therefore the wife’s inchoate right of dower had attached at common law. She had joined her husband in the execution of mortgages, and the property was after-wards sold under a deed of trust executed by the husband alone, for the purpose of paying all mortgages and incumbrances according to their legal priority, and the Court held that she was dowable of the surplus, after payment of the mortgages in which she had joined, and that this was her right at the common law. That was all that was actually decided in that case, but it may be inferred from what the Court said in its opinion, as well as from the decision of the Chancellor in Mantz vs. Buchanan, 1 Md. Ch. Dec., 205, and of this Court in Lynn vs. Lynn, 27 Md., 547 , that the same result would follow in the case of a simple mortgage of an equitable interest, though the Chancellor in Purdy vs. Purdy, 3 Md. Ch.

Dec., 547, seems to have regarded a mortgage as a transfer or parting with the equitable ¹⁰⁰ estate. But no such questions arises in the present case. There is here no mortgage, nor any claim to a surplus. The claim is for the assignment of dower in the land, and from the construction placed upon this Act of Assembly by all these decisions, it seems to me quite clear, that the husband has the same power of absolute alienation over an equitable interest in land, that he has. over his personal property, and that the same alienation that will defeat the widow’s right to a distributive share in the one, will defeat her claim to dower in the other.

But the complainant charges in her bill that her deceased husband adopted the plan of having this farm conveyed to Emily Y. Cecil, for the purpose of cheating and defrauding her of her dower in his estate; and it is contended that the whole arrangement was a scheme devised and carried out to accomplish that purpose ; that Miss Cecil was made the mere nominal holder of the legal title while Gaither remained the real and substantial owner, and that such was the understanding between them when the transaction took place. Before considering the testimony upon which this grave charge is founded, it is well to ascertain clearly what the law upon this subject is, and in doing this, reference must be made to the Maryland decisions only, because they alone are binding authorities in the case, and it would seem that they have settled the question. In Hays vs. Henry, 1 Md. Ch. Dec., 337, a bill was filed by a widow for relief against certain conveyances of leasehold property, (a house and lot,) as made in fraud of her rights.

The husband was living apart from his wife, and with a woman by whom he had children. He bought the property with his own money, and had it conveyed to the woman who a few days afterwards conveyed the same to him upon certain trusts; but this trust deed contained a covenant that he should hold and use the property without hindrance from her, and he lived and died in the ¹⁰¹ house. Both deeds were recorded on the same day, and were parcels of the same transaction. In deciding the case the Chancellor lays down the law in very clear and emphatic terms, to the effect that while a husband cannot by a will deprive a widow of her share of his personal property, there can be no doubt of his power to dispose of such property absolutely during his life, without the concurrence of his wife, and free from any claim on her part, provided the transaclion is not merely colorable, and be unattended with circumstances indicative of fraud upon her rights. “If the disposition” says the Chancellor, “by the husband be bona fide, and no right is reserved to him, then, though made to defeat the claim of the toife, it will be good against her, because an act cannot be denounced as fraudulent which the law authorizes to be done.

But if it be a mere device or contrivance, by which the husband, not parting with the absolute dominion over the property during his life, seeks, at his death, to deny his widow that share of his personal estate which the law assigns to her, then it will be ineffectual against her.” He then proceeds to decide the case before him, and decides it for the widow, upon the express ground of the reservation in the deed of trust, in favor of the husband, and his continued possession of the property down to the time of his death. In speaking of the purpose of the transaction he says, “ that purpose, I am fully convinced, was to deprive the complainant of her share of her husband’s estate,” and adds, “this purpose there is no doubt, could have been accomplished by an absolute and unconditional alienation of the property by sale or gift; and, although such alienation was made with the intent imputed to this act, it would not vitiate it, provided there was a transfer of the possession as well as the title, and no reservation whatever to the husband.” It is plain from the whole tenor of the Chancellor’s decision in this case, that when he declared that the disposition made by the hus ¹⁰² band, must be bona fide, he had no reference to good faith on the part of the husband towards bis wife, but to the transaction itself as between the husband and his grantee or donee. The plain meaning of his language is that the transfer by the husband, whether by sale or gift, must be absolute and unconditional, and not colorable merely. In Dunnock vs. Dunnock, 3 Md. Ch.

Dec., 140, there was a bill by a wife for alimony out of the estate of her husband who had abandoned her, and the charge was that he had conveyed away by bill of sale c'ertain negro slaves, with a design to defraud her of her right to a reasonable maintenance, and of all interest, present or prospective, in these slaves. The Chancellor found upon the proof that the bill of sale was absolute on its face, was accompanied with delivery of possession, and that there was no such reservation of right in the husband as to “defeat his unquestionable right to give away his personal property to the prejudice of his wife’s claim to a distributive share alter his death,” and denied the relief prayed. There was parol proof of a written agreement between the grantor and grantee that the latter should return the negroes to the former when he should call for them, or forfeit $1200. This proof was not admitted, but the Chancellor held that such an agreement would not have affected the case even if it had been proved, because it did not bind the grantee to return the property, but only to do so or pay $1200.

In this case the Chancellor re-affirmed the law as he had stated it in Hays vs. Henry, and in the course of his opinion, said : “ It is not enough to show that the conveyance, assuming it to be without a valuable consideration, was made to defeat the claim of the wife ; that the law allows the husband to do by gift, so far as his personal estate is concerned,' provided there be no right reserved to himself, and is not a mere fiction, by which, not divesting himself of the dominion over his property during his life, he attempts after his death to deprive her of her distributive share thereof.” ¹⁰³ In Feigley vs. Feigley, 7 Md., 537 , a wife filed a bill for a divorce and alimony. Sbe subsequently amended her bill, and charged that her husband in order to deprive her of all hope of any provision out of his property, and confederating with his sister for that purpose, had executed a deed conveying to the latter all his interest in the estate of his deceased father, for a trifling and pretended consideration; that this conveyance was merely fictitious and not intended really to deprive the grantor of the benefit of this estate, but to save the same for his own use, and the sister was brought in as a party to the suit. The case was elaborately argued, and the Court after deciding that the wife had, under the terms of the Statute of Elizabeth, a standing in Court to impeach the deed, considered the question whether it was a bona fide transaction, or the result of a deliberate purpose to defraud the wife of her claim to alimony. Upon this question they say they bad no doubt but that the deed was executed by the husband in fraud' of her rights, but that there was no direct or sufficient proof, (in face of the denials in her answer,) of any fraudulent participation by the sister in the transaction, and that there was no such glaring inadequacy of consideration, as would of itself stamp the transaction with fraud, and thereby render the deed void.

They therefoi’e reversed so much of the decree below as vacated this deed, and refused to allow the wife alimony because the husband had no estate out of which it could be allowed. There is plainly nothing in this decision which overrules or modifies the law as laid down by the Chancellor in the cases above cited. In Sanborn vs. Lang, 41 Md., 107 , a widow filed a bill to vacate a deed of real and personal property executed, as she averred, by her husband, in contemplation of his death, and with the avowed and express purpose of depriving her of her distributive share of his estate. It was ■conceded she was entitled to dower in the real estate, the ¹⁰⁴ husband having had the legal title thereto, and the controversy was over her right to her share of the personal property.

The Court conceded that the legal principles-involved, were stated with substantial accuracy by the Chancellor in Hays vs. Henry, but the facts showed there was a reservation of an interest in the grantor, and that he remained in possession of the property until his death. The gist of the Court’s opinion in this case, is in the following extract: “The facts that the power of attorney was prepared at Sanborn’s instance, and sent on to be executed before the deed was made ; that it secured to him the unlimited right of disposing of the property as owner, that he did so deal with it, by having a portion of it mortgaged to obtain money for his own use ; and that he remained in possession of it till his death, conclusively show, that though the deed was absolute on its face, the intent and purpose of the transaction, and of the parties, was, that while Sanborn retained dominion and control .over the property in his life-time, his wife should have no-part or share of it after his death. This being so, the-case falls directly within the principles laid down by the Chancellor in Hays vs. Henry, and by this Court in Feig ley vs. Feigley. The deed was not made tona fide, but. as respects the wife was fraudulent, and cannot operate to deprive her of her legal rights as widow and distributee.” The fair conclusion from these authorities is, that a husband may alienate his personal property and his equitable interest- in land, either by