Silberman v. Jacobs & Silberman

Barnes, J., delivered the opinion of the Court. The General Assembly of Maryland, by the Acts of 1969, Chapter 3 enacted a statute governing the estates of decedents generally. The new statute, Code (1957, 1969 Repl. Vol.), included the following sections: “Subtitle III” “Sec. 3-202.

Dower and curtesy abolished. The estates of dower and curtesy are abolished.” * * * “Subtitle XII” “Sec. 12-102. Applicability. Unless otherwise specifically provided in another section of another subtitle of this article, the provisions of this article shall apply as follows : (a) Subtitles. . .III. . .shall apply to estates of decedents dying on or after January 1,1970.” The present appeal presents to us for resolution questions in regard to the constitutionality and effect of these sections.

The facts are not in dispute. The bill of complaint for declaratory judgment filed on February 11, 1970, in the Circuit Court of Baltimore City by appellees, Carol Joan ³ Jacobs and Morton L. Silberman, plaintiffs below, against the appellant, Stanley James Silberman, alleged and the answer admitted the following: The defendant, Stanley J. Silberman, was the contract purchaser under two contracts for the sale of two fee simple parcels of land in Baltimore City, being two annual ground rents for $21.50 and $36.00 respectively. These contracts of sale provided for settlement on February 2, 1970. The plaintiff, Carol Joan Jacobs, a married woman, was married to her present husband prior to January 1, 1970, and had not been previously married.

The plaintiff, Morton L. Silberman, was married to his present wife prior to January 1, 1970, and had not been previously married. The ground rents owned by the respective plaintiffs had been acquired by them prior to January 1, 1970. It had been stipulated between the parties that the ground rent owned by Carol Joan Jacobs was not acquired by her as part of her sole and separate estate and that the ground rents owned by both of the plaintiffs were acquired by their own funds prior to their respective marriages. At the time of settlement, the plaintiffs were ready, willing and able to settle, but the defendant refused to settle because the spouses of the respective plaintiffs would not join in the respective deeds of conveyance.

The defendant advised the plaintiffs at the time of settlement that the joinder of the spouses of the respective plaintiffs was a necessary condition of the defendant’s obtaining a title free from any claims of dower or curtesy, notwithstanding the purported abolitions of the estates of dower and curtesy by Section 3-202 of the new Article 93 enacted by Chapter 3 of the Acts of 1969. Title insurance companies, which maintain offices in Baltimore City, have taken and continue presently to maintain the position that they will require the joinder of spouses to deeds of real property inasmuch as questions have been raised in regard to the validity and the application of Section 3-202. Attached as Exhibit B to the bill of complaint was a notice directed by the Title Guarantee Company to “All Title Examiners, Agencies and ⁴ Approved Attorneys” on December 19, 1969, stating that “the company will continue as in the past to require the signature of spouses after January 1, 1970 until such time as the Court of Appeals has construed the above section [Section 3-202] which we understand will be in the very near future.” The case because of its public importance was advanced for oral argument and was duly heard by Judge Perrott in the Circuit Court of Baltimore City on February 25, 1970. On April 23, 1970, the Circuit Court entered a decree declaring that the provisions of Section 3-202 are constitutional, valid and effective in regard to all fee simple properties owned by married persons on and after January 1, 1970, whether acquired by them before or after January 1, 1970, and that the joinder of spouses of the respective plaintiffs- was not required for them to convey a good and merchantable title to the ground rents.

A timely appeal was filed to this Court from that decree. Judge Perrott filed a comprehensive and helpful opinion which we have carefully considered. Two basic questions are presented to us by the appeal: (1) Do the Constitutions of the United States and of this State prohibit the General Assembly of Maryland from enacting a statute abolishing inchoate rights of dower ? (2) Does Section 3-202, which provides that the “estates” of dower and curtesy are abolished, abolish inchoate rights of dower, not normally considered to be “estates”?

In our opinion there is no constitutional prohibition preventing the enactment of Section 3-202 and, as properly construed, the statute effectively abolishes inchoate rights of dower. Thus, we shall affirm the decree of April 23,1970. (1) In our opinion, no provisions of either the Constitution of the United States or the Constitution of the State of Maryland prohibit the enactment by the General Assembly of Maryland of a statute abolishing inchoate rights of dower. ⁵ We should first consider the nature of dower at common law and in Maryland at the time the Act of 1969, Chap. 3 was passed and became effective. The history of dower is carefully traced by Professor George L. Haskins of the University of Pennsylvania Law School in Part 5 “Marital Estates,” Chapter 1 “Dower” in 1 American Law of Property (1952) § 5.1 et seq.

See also 3 Vernier, American Family Laws (1935) and Has-kins, The Development of Common Law Dower, 62 Harv.L.Rev. 42 (1948). Professor Haskins points out that dower was long known in the English law and antedated the Norman Conquest in 1066. He states “. . .its precise beginnings are lost in the dim antiquities of the Germanic law which prevailed in England before the Conquest.” Id. § 5.2, p. 618. At the time of Littleton (c. 1475) see Littleton’s Tenures, § 51, there were five species of dower in England: (1) dower ad ostium ecclesiae, where a man of full age, on coming to the church door to be married, endowed his wife with a certain portion of his lands; (2) dower ex assensu patris which was different from dower ad ostium ecclesiae only in being made out of the lands of the father of the husband and with the father’s consent; (3) dower by common law, where the widow was entitled during her life to a one-third part of all the lands of which her husband was seised in law or in fact during coverture and which any issue she might have had might by possibility have inherited; (4) dower by custom, where a widow became entitled to a specified portion of her husband’s lands as a consequence of some local or particular custom; and, (5) dower de la pluis belle (or de la pluis beale), where the widow on suing the guardian in chivalry for dower, was required by him to endow himself of the fairest portion of any lands she might hold as guardian in socage, and thus released from dower the lands of her husband held in chivalry.

When military tenures were abolished, this form of dower was abolished also. See Blackstone, Commentaries (Lewis ed.), book 2, p. 132. ⁶ The dower by custom was of a local nature and did not continue into the later common law. As Mr. Justice Swayne stated, for the Supreme Court of the United States, in Randall v. Kreiger, 23 Wall. (90 U. S.) 137, 147-148 (1874) : “Dower by the common law was of three kinds: Ad ostium ecclesiae, Ex assensu patris, and that which in the absence of the others the law pre7 scribed.

The two former were founded in contract. The latter was the creature of the law. Dower Ad ostium ecclesiae and Ex assensu patris were abolished in England by a statute of the 3rd and 4th William IV, Ch. 105. The dower given by law is the only kind which has since existed in England, and it is believed to be the only kind which ever obtained in this country.” Dower was not a part of the feudal system of tenure but was rather a survival of more ancient concepts.

It was inconsistent with the emphasis on succession to blood kin in the feudal system of tenure and “it became a great clog to alienations, and was otherwise inconvenient to families” as Sir William Blackstone stated. See Blade-stone, Commentaries, supra, p. 136. Professor Haskins observed in 1 American Law of Property (1952), Section 5.4, p. 631: “The chief changes in the law of dower after Littleton’s time were in the direction of devising expedients for defeating it. Because dower was one of the few restrictions on the free alien-ability of land, methods of defeating it were worked out by parliament, by the courts and by conveyancers.

Briefly, it may be said that those methods were: (1) jointures created under the Statute of Uses; (2) trusts, out of which courts of equity refused dower; and (3) powers of appointment, under which a wife might be deprived of dower and yet the husband might have all the advantages of an estate of inheritance. ⁷ “Dower de la pluis beale was abolished in 1660, dower ad ostium ecclesiae and ex assensu patris in 1833. The Dower Act of 1833 empowered a husband to deprive his wife of common law dower by his express act. The Administration of Estates Act of 1925 abolished dower completely.” In Maryland only dower by common law became part of the Maryland system of tenure. Judge (later Chief Judge) Prescott, for the Court, in Lefteris v. Poole, 234 Md. 34, 38 , 198 A. 2d 250, 252 (1964), defined dower in Maryland as follows: “Dower is a common-law right of a surviving widow to a life estate in one-third of the inheritable real estate owned by the husband during the coverture, which right, prior to the husband’s decease, is said to be inchoate, and after his death it becomes consummate.

Chew v. Chew, 1 Md. 163, 172 ; Venable, The Law of Real Property, Leasehold Estates in Maryland, pp. 21, 22; 4 Kent Com. 35-72; United States v. Certain Parcels of Land,, Etc., 46 F.Supp. 441 (D.C., D.Md.).” See Buchanan v. Deshon, 1 Har. & G. 280, 289 (1827). In United States v. Certain Parcels of Land, 46 F.Supp. 441, 444 (D.Md. 1942), Judge Chesnut reviewed the applicable Maryland law in regard to dower and summarized the Maryland law as follows : “No Maryland partition or condemnation case has been found where an award for inchoate dower has actually been made. In two early Maryland partition cases, . . .it was intimated that such an allowance might possibly be made in a proper case; but the most significant Maryland decision is Reiff v. Horst, 55 Md. 42, 47, 49 . In that case the wife by agreement had released her inchoate dower in certain lands for a stipulated consideration.

The court enforced the ⁸ agreement but, in discussing the general question of compensation for inchoate dower, it was said: “ ‘The interest of the wife in her husband’s real estate is inchoate only during his life, it requires the husband’s death to occur before it becomes a vested right. As this Court defines it in Buchanan v. Deshon, 1 Har. & G. 280, “she has no vested right, it is altogether contingent, depending upon her surviving her husband.” In Hawley v. Bradford, 9 Paige, [200], 201 [ 37 Am. Dec. 390 ], the Chancellor says: “Strictly speaking, the wife has no interest or estate in the lands of her husband during his life, which is capable of being mortgaged or pledged for the payment of his debt. Her joining in a mortgage therefore merely operates by way of release or extinguishment of her future dower as against the mortgagor, if she survives her husband, but without impairing her contingent right of dower in the equity of redemption.

If the mortgage be foreclosed in the life-time of the husband, she has no claim on the surplus proceeds of sale; but if her husband be dead when foreclosure takes place her dower right in the equity of redemption having then become consummate, she would be endowed of the surplus proceeds.” 1 Scribner on Dower, 478; [Titus v. Neilsen], 5 Johns. Ch. 452 . In the last cited case, Chancellor Kent says, it is very clear this is the law. It results from these authorities that the wife’s inchoate right is not such a right as may be bargained and sold.

Her deed does not pass any title. It operates only by way of estoppel or release. And any words of release would be as effectual as words of grant. She cannot convey it to a stranger.

It is only released to the owner of the fee. * * * Regarding her right, as the law does, during the husband’s life, ⁹ as having no present value, as it is not the subject of sale, but only of release to the owner of the fee, we have no scale or standard for ascertaining its present worth * * *.’ “I have not been able to find that this view of the nature of inchoate dower as expressed by the Maryland Court of Appeals in Reiff v. Horst, has been subsequently modified in any way. It was cited with approval in the recent case of Roth v. Roth, 144 Md. 553, 555 , 125 A. 400 . In Hopkins v, Magruder, D. C. Md., 34 F.Supp. 381 , Judge Coleman, in applying the federal gift tax statute * * * held that where a husband made a deed of gift to his wife of certain real estate, no deduction from the whole value thereof could be made on account of her inchoate dower for the computation of the tax. After stating the nature of inchoate dower in Maryland (34 F.Supp. page 383) he said, at page 384 of 34 F.Supp.: ‘In short, we are being asked to place a value upon something, the present worth of which the Court of Appeals of Maryland has said can be ascertained by no scale or standard, Reiff v. Horst, 55 Md. 42 .’ ” “It will thus be noted that the view of the Maryland Court of Appeals as to inchoate dower is that it has no present value and there is no scale or standard for ascertaining its present worth.” (Emphasis in the opinion of the District Court.) See also the informative review of Maryland statutes and cases by Chief Judge Bruñe, speaking for the Court, in Kreamer v. Hitchcock, 207 Md. 454 , 115 A. 2d 255 (1955); Alexander’s British Statutes, p. 306 et seq., and Venable, Law of Real Property and Leasehold Estates in Maryland, p. 21, et seq.

In Key v. Key, 134 Md. 418, 421-423 , 106 A. 744 ¹⁰ (1919), our predecessors held that the Act of 1916, Ch. 325 which enlarged the share in real property of a surviving spouse, electing to take against a will, could be validly applied retroactively. Judge Briscoe, for the Court, stated: “The second objection that the Act is invalid because it disturbs and impairs existing and vested property rights is manifestly not tenable. “The language of the third section of the Act is clear and definite that the surviving husband or widow shall take as heir a certain share in lands, tenements or hereditaments, within this State belonging to the deceased spouse at the time of his or her death, though such deceased spouse die testate. “The statute it will be seen operates only upon property owned and belonging to a person at the time of his or her death, and does not in any way change or divest rights or estates in property already descended or vested, nor does it affect the enjoyment and ownership of property by the owner during his life. “Similar laws of this character have been held valid and constitutional, and approved by the Supreme Court of the United States in a number of cases and by the Appellate courts of the various states. “In Noel v. Ewing, 9 Indiana 38, the Supreme Court of Indiana in applying a statute of that State which provided that if a husband die, testate or intestate leaving a widow, one-third of his real estate shall descend to her in fee simple, held that husbands as a class were embraced in the language used, and that it included all those who sustained this relation at the date of the statute or might sustain that relation in the future. The Court said: ‘Upon the dissolution of marriage by death the law applies. If persons ¹¹ married before the Act were intended to be excepted the law would have been so written.

It establishes the death of one of the parties as the future event on which it is to operate. It simply determines the legal effect of death as a future event on the rights of the surviving wife.’ “In U. S. v. Fox, 94 U. S. 315 , the Court there said: ‘The power of the state to regulate the tenure of real property within her limits, and the mode of its acquisition and transfer, and the rules of descent, and the extent to which a testamentary disposition of it may be exercised by its owners is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent or any other mode, is exclusively subject to the government within whose jurisdiction the property is situate.’ “It is very apparent in the present case that there are no vested rights involved and the authorities in support of the validity of such legislation are too numerous and well settled to permit it to be disturbed at the present date. The cases and citations from the various text-writers upon the subject will be found cited and collected in the appellant’s brief in the case of Safe Deposit Co. v. Gittings, 103 Md. 494 , and will be found to fully sustain the conclusion we have reached in this case.

Sturgis v. Ewing, 18 Ill. 176 ; Brettun v. Fox, 100 Mass. 234 and Randall v. Kreiger, 23 Wall. 148 .” It is thus seen that under the Maryland law the inchoate right of dower was not a vested right. It was only upon the death of the spouse that dower became vested. The spouse had no interest or estate in the other spouse’s land prior to the death of that spouse which was capable of being mortgaged, pledged or sold. The Supreme Court of the United States has indicated ¹² that inchoate rights of dower are within the control of the State Legislature and such rights are not protected from State action by the Federal Constitution.

In Randall v. Kreiger, 23 Wall. (90 U. S.) 137, 148 (1874), supra,—cited with approval in Key v. Key, supra —the Supreme Court sustained the retroactive application of a State statute permitting a wife to convey her inchoate dower interest by means of a power of attorney. Mr. Justice Swayne, for the Supreme Court, stated: “During the life of the husband, the right is a mere expectancy or possibility. In that condition of things, the law making power may deal with it as may be deemed proper.

It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish or otherwise alter it, or wholly take it away. It.is upon the same footing with the expectancy of heirs, apparent or presumptive, before the death of the ancestor. Until that event occurs the law of descent and distribution may be moulded according to the will of the Legislature. “Laws upon those subjects in such cases take effect at once, in all respects as if they had preceded the birth of such persons then living.

Upon the death of the husband and the ancestor the rights of the widow and the heirs become fixed and vested. Thereafter their titles respectively rest upon the same foundation, and are protected by the same sanctions as other rights of property.” The Supreme Court cited Randall with approval and followed it in Ferry v. Spokane P. & S. Ry. Co., 258 U. S. 314 , 42 S. Ct. 358 , 66 L. Ed. 635 (1922) in which that Court unanimously sustained a statute of Oregon which divested a non-resident wife of dower rights in property disposed of by her husband prior to his death. In sustaining this statute, Mr. Justice McKenna, for the Supreme Court, stated: ¹³ “Dower is not a privilege or immunity of citizenship, either state or federal, within the meaning of the provisions relied on.

At most it is a right which, while it exists, is attached to the marital contract or relation; and it always has been deemed subject to regulation by each State as respects property within its limits. * * * Neither § 2 of Article IY nor the Fourteenth Amendment takes from the several States the power to regulate this subject; nor does either make it a privilege or immunity of citizenship. * * * “The further contention, based on the Fourteenth Amendment necessarily is, as counsel urge, that dower is ‘fundamental and substantial,’—‘a property right, being, while inchoate, a chose in action, of which no citizen of the United States, wherever he (she) may be resident, can be deprived without “due process of law,” and as to which every person is entitled to the “equal protection of the laws,” as provided in the Fourteenth Amendment of the Constitution.’ “The Court of Appeals considered this contention, and it is difficult to add anything to its opinion. It pointed out that the Oregon statute was taken from the laws of Michigan adopted in 1846 and sustained. The example of Michigan was followed in Wisconsin, Kansas and Nebraska and sustained by the courts of those States. * * * “And Blackstone speaks of dower as having become ‘a great clog to alienation,’ and ‘otherwise inconvenient to families.’ * * * “The cases recognize that the limitation of the dower right is to remove an impediment to the transfer of real estate, and to assure titles against absent and probably unknown wives. And such is the purpose of the Oregon statute, ¹⁴ and the means of executing the purpose appropriate, and a proper exercise of classification.

It satisfies, therefore, the constitutional requirement of the equal protection of the laws; and we proceed to the inquiry whether the statute is otherwise valid. * * * “The granting of dower, therefore, is a matter of statutory regulation. It was so decided by the United States Circuit