Rowe v. Rowe

KENNEY, Judge. Appellee, Kathleen C. Rowe (“Kathleen”), filed a Petition to Construe Will (“the Petition”) on October 27, 1997, in the Circuit Court for Montgomery County, sitting as the Orphan’s Court. In the Petition, she sought a one-half share of the residuary estate of Margaret J. Rowe (“Margaret”), the deceased mother of appellee’s late husband, L. Maurice Rowe, III (“Maurice”). Appellant, Ronald J. Rowe (“Ronald”), Margaret Rowe’s other son, defended, arguing that he was entitled to his mother’s entire residuary estate.

After a hearing on January 13, 1998, the circuit court granted appellee’s Petition and ordered appellant, as Personal Representative of his mother’s estate, to distribute one-half of Margaret’s residuary estate to the estate of L. Maurice Rowe, III. Appellant noted a timely appeal. Appellant raises one question for our consideration: Did the trial court err in directing that one-half the residuary estate [of the testatrix Margaret Rowe] be distributed to the personal representative of predeceased beneficiary L. Maurice Rowe III? Because the terms of the testatrix’s will do not express a contrary intent, we shall apply Maryland’s anti-lapse statute, Md.Code (1974, 1991 Repl.Vol., 1998 Cum.Supp.), § 4-403 of the Estates and Trusts Article (“E.T.”), to hold that appellee, as the heir of her late husband, inherits one-half of Margaret Rowe’s residuary estate.

Facts When Margaret executed her will in 1979, her husband and her two sons were alive, however, her husband and her son, Maurice, predeceased her. Maurice was survived by his spouse, Kathleen, and their three children. Kathleen is the ⁹³ Personal Representative and sole residuary legatee of Maurice’s estate. Margaret died on December 29, 1996.

Her will was admitted into probate on July 11, 1997, and Ronald, her surviving son, was appointed the Personal Representative of her estate. Margaret’s will stated, in pertinent part: I give, devise and bequeath all the rest, residue and remainder of my estate and property, real and personal and mixed unto my said husband, absolutely. In the event he does not survive me, then I give, devise and bequeath the rest, residue and remainder of my estate and property unto my own two sons, L. Maurice Rowe, III and Ronald David Rowe equally, share and share alike. Understanding that Ronald believed that he was entitled to all of Margaret’s residuary estate, Kathleen filed a Petition to Construe Will in the Circuit Court for Montgomery County.

She contended that, as sole residuary heir to her late husband’s estate, she was entitled to his one-half share of Margaret’s residuary estate. After oral argument on January 13, 1998, the court granted appellee’s Petition and ordered appellant, as Personal Representative, to distribute one-half of Margaret’s residuary estate to the estate of L. Maurice Rowe, III. Discussion “In the construction of wills, the sole object of the inquiry is to ascertain the intention of the testator.” Patchell v. Groom, 185 Md. 10, 14-15 , 43 A.2d 32 (1945). In Payne v. Payne, 136 Md. 551, 554-55 , 111 A. 81 (1920), the Court of Appeals observed that there is no other class of cases where [previous appellate] decisions are of so little aid in reaching a correct conclusion .... because, of all the cardinal rules governing the interpretation of wills, by far the most important ... is the rule that the intention of the testator, where that can be ascertained from the language of the will and from the circum ⁹⁴ stances surrounding the testator at the time of its execution, must control....

The circuit court tried this case without a jury. We will review the case on both the law and the evidence, and will not set aside the judgment on the evidence unless the trial court was clearly erroneous. Md. Rule 8 — 131(c); see Oliver v. Hays, 121 Md.App. 292, 305-306 , 708 A.2d 1140 (1998); Nicholson Air Services., Inc. v. Board of County Comm’rs of Allegany County, 120 Md.App. 47, 66-67 , 706 A.2d 124 (1998); In re Joshua David C., 116 Md.App. 580, 592 , 698 A.2d 1155 (1997). When substantial evidence exists to support the trial court’s findings, the findings are not clearly erroneous.

Ryan v. Thurston, 276 Md. 390, 392 , 347 A.2d 834 (1975). When “competent material evidence” supports the trial court’s findings, we must uphold them and cannot set them aside as clearly erroneous. State v. Johnson, 108 Md.App. 54, 70-71 , 670 A.2d 1012 (1996). An appellate court should not substitute its judgment for that of the fact finder, even if it might have reached a different result.

Oliver, 121 Md.App. at 306 , 708 A.2d 1140 . The trial court’s conclusions of law are not entitled to the deference of the clearly erroneous standard, however. When examining the trial court’s application of the law to the facts, we use an abuse of discretion standard. Oliver, 121 Md.App. at 306 , 708 A.2d 1140 ; Pierce v. Montgomery County, 116 Md.App. 522, 529 , 698 A.2d 1127 (1997); In re Michael G., 107 Md.App. 257, 265 , 667 A.2d 956 (1995).

I. Presumption against disinheritance In Maryland, there exists a common law presumption against disinheritance of heirs at law, next of kin, and statutory distributees. Payne, 136 Md. at 553-555 , 111 A. 81 . Where no contrary indications exist, [i]t is a rule of construction that an equitable distribution of one’s property among the natural objects of his bounty must be given consideration and weight, and that his legal ⁹⁵ heirs should be regarded as possessing the same consideration unless otherwise clearly provided .... those who have equal claims in law or in affection upon the testator should be placed in equal positions where it can be done without doing violence to the written word. Adams v. Safe Deposit & Trust Co. of Baltimore, 178 Md. 360, 366 , 13 A.2d 546 (1940).

Where an ambiguity exists as to the testator’s intent, it will be interpreted against disinheritance unless there is a manifest intention to the contrary. Saylor v. Plaine, 31 Md. 158, 164 , 1 Am. Rep. 34 (1869). Were we to accept appellant’s contentions, the family of one of the testatrix’s sons would be disinherited, to the sole benefit of the other son.

Had the testatrix clearly expressed this intent, there would be no doubt as to our decision. Because this intent has not been clearly identified, however, and because a quite opposite intent may actually be apparent, we are disinclined to interpret the will in such a way as to prevent Maurice’s family from inheriting his share of his mother’s estate.

II

The anti-lapse statute Maryland’s anti-lapse statute, E.T. § 4-403, provides, in pertinent part: (a) Death of legatee prior to testator. -Unless a contrary intent is expressly indicated in the will, a legacy may not lapse or fail because of the death of the legatee after the execution of the will but prior to the death of the testator if the legatee is: (1) Actually and specifically named as legatee; (2) Described or in any manner referred to, designated, or identified as legatee in the will; or (3) A member of a class in whose favor a legacy is made. (b) Effect of death of legatee.-A legacy described in subsection (a) shall have the same effect and operation in law to direct the distribution of the property directly from the estate of the person who owned the property to those ⁹⁶ persons who would have taken the property if the legatee had died, testate or intestate, owning the property. Maryland’s anti-lapse statute is broader than that of many other states. Mayor & City Council of Baltimore City v. White, 189 Md. 571, 574-575 , 56 A.2d 824 (1948).

The Court of Appeals has observed that “[t]he [anti-lapse] statute has been liberally construed---- The statute expresses a presumed intent of the testator. The presumption may be overcome by expression of a contrary intent in the will, but is supported by the presumption that the will is made in view of the statute.” Id. at 574-75 , 56 A.2d 824 (citations omitted); Duering v. Brill, 127 Md. 104, 111-12 , 96 A. 269, 272 (1915); See E.T. § 4-403(a). Therefore, unless we can find a contrary intent “expressed” in the testatrix’s will, the anti-lapse statute will dictate that the legacy to Maurice will not lapse but will pass to appellee. Appellant, as the party asserting a contrary intent, has the burden of demonstrating that intent and overcoming the presumption that the will was made “in view of the statute.” Mayor and City Council of Baltimore, 189 Md. at 575 , 56 A.2d 824 ; Vance v. Johnson, 171 Md. 435, 441 , 188 A. 805 (1937).

III. “Equally, share and share alike” Appellant argues that E.T. § 4-403 should not be applied to the present case because it is “overridden” by the testatrix’s expressed intent to have a per capita distribution. Appellant contends that the phrase “equally, share and share alike” in the residuary clause of the will requires that distribution be per capita. A per capita distribution is dependant upon survivorship of the person named as the legatee, whereas a per stirpes distribution can pass to the heirs of a legatee if the legatee predeceases the testatrix. Appellant contends that both “equally” and “share and share alike” connote per capita.

The phrase “equally, share and share alike” generally indicates an intention for a per capita distribution, but it does not always necessitate such a result. When the meaning that the testatrix intends for a phrase is indefinite, a court ⁹⁷ should look to the rest of the will. In Patchell, 185 Md. at 14-15 , 43 A.2d 32 , the Court of Appeals stated: In the construction of wills, the sole object of the inquiry is to ascertain the intention of the testator. When ordinary words are used, these are to be taken in their ordinary meaning unless a contrary intention clearly appears.

Likewise, when recognized legal terms are used, the testator is presumed to have used such terms with the knowledge of their technical meaning, and with the purpose of employing that meaning in the disposition of his property. But even technical meanings may vary with surrounding circumstances, and legal terms may mean one thing in one will and have a different meaning in another. The final inquiry in each such case is what did this testator mean by the use of this term in this will [Emphasis in original.] In Cole v. Bailey, 218 Md. 177 , 146 A.2d 14 (1958), a will specified that a trust should be divided between the testator’s nephews, nieces, and sister “share and share alike per representation.” Id. at 179-180 , 146 A.2d 14 . Because the phrase “share and share alike” is often used to reflect per capita distributions, and “per representation” generally indicates a per stirpes distribution, the Court of Appeals held that the utilization of both terms in the phrase created an ambiguity.

The Court, therefore, looked to the rest of the will for an indication of the testator’s intent. Based on its review, the Court found that the testator intended a per stirpes distribution. In Stahl v. Emery, 147 Md. 123 , 127 A. 760 (1925), a testator left his wife a life estate and directed that, upon her death, the remainder was “to be equally divided among our children, share and share alike.” Id., 147 Md. at 125 , 127 A. 760 . The testator had two daughters and two sons at the time he created the will, but both daughters predeceased the testator, leaving children.

The Court of Appeals held that the testator’s intention was to leave the estate to his children as a class and not as individuals. The Court held that, because the gift was to a class, the version of the anti-lapse statute then in effect did not apply. The two sons, therefore, received the ⁹⁸ entire estate, and the children of the two daughters received nothing. The Stahl Court’s interpretation of the will to direct a per capita distribution was not based solely on the “equally divided ... share and share alike” language; rather, the Court held that the testator had given the estate to his children as a class (“among our children”), the members of which were not ascertainable until the life tenant’s death. 1 Because the children were not specifically identified