Simpson v. Piscano

Cole, J., dissenting: The effect of the majority’s decision today is to hold that, under Maryland’s present antilapse statute, if a legatee died intestate prior to the testatrix, his heirs would take from the testatrix directly as if he died intestate owning the property, but if the legatee died testate, nominating a person to take who is deceased at the time of the testatrix’s demise, his heirs cannot take because the property reverts (as an ineffective disposition) to the estate of the testatrix who then dies intestate and distribution is made to her heirs. This conclusion is incongruous to me and I, therefore, dissent and state my reasons. The seeds to this controversy 1 were sown when the legislature in 1969 enacted a new antilapse statute. Chapter 3, § 1, Laws of Maryland of 1969.

This statute with minor changes in language and style, but identical in substance is presently codified in the Maryland Code (1974), § 4-403 of the Estates and Trusts Article and 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 a 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. ⁵⁶⁸ (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 persons who would have taken the property if the legatee had died, testate or intestate, owning the property. The statute is applicable to wills executed after January 1, 1970.

Maryland Code (1974), § 12-102 (d) of the Estates and Trusts Article; Stewart v. Whitehurst, 268 Md. 589 , 303 A.2d 393 (1973). The prior antilapse statute was last codified in Maryland Code (1957, 1964 Repl. Vol.), Art. 93, § 354. It provided: 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 identified 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.

In enacting the new statute the legislature made two major changes. Eliminated from the old statute was the language "as if such devisee or legatee had survived the testator.” This language had been construed to pass the legacy as if the legatee had died intestate, thus preventing its passing to those the'legatee may have named in a will. Glenn v. Belt, 7 G. & J. 362 (Md. 1835). Added to the new statute was language directing that if the predeceased legatee died with a will, the property should be distributed to those named in his will: "If the legatee had died, testate or intestate, owning the property.” There is no question that under the old statute the subject estate would have been distributed to the legatee’s heirs ⁵⁶⁹ living at the time of the testatrix’s death.

Persson v. Dukes, 33 Md. App. 214 , 364 A.2d 86 (1976), aff'd, 280 Md. 194 , 372 A.2d 240 (1977). The basis for this Court’s holding that under the old statute the property passed to those who would have taken if the legatee had died intestate was the inclusion in the old statute of the fiction that the legatee survived the testator. This fiction led the Court to conclude that the legacy could not pass according to the legatee’s will because at the actual time of his death he had nothing to will. McLaughlin v. McGee, 131 Md. 156 , 101 A. 682 (1917); Glenn v. Belt, supra.

The fiction of the legatee’s survival meant that the time of transfer was the death of the testator. In other words, only those heirs of the legatee alive at the time of the testator’s death were entitled to distribution. Simon v. Safe Dep. & Trust Co., 190 Md. 468 , 59 A.2d 199 (1948). The question then, restated, is whether the changes in the statute dictate a result different than that which would have been achieved under the old statute where as here the only beneficiary named in the legatee’s will is no longer alive at the death of the testatrix.

The relevant legislative history is contained in the Second Report of the Governor’s Commission to Review and Revise the Testamentary Law of Maryland (Henderson Commission Report). 2 That report tells us only that the ⁵⁷⁰ purpose of the changes was to permit a testator’s property, in situations where the predeceased legatee left a will, to pass to those nominated in the will. This report does not expressly indicate the correct disposition where the legatee left a will but those named in it are not alive upon the death of the testator. Important to a resolution of the question before the Court, is an abiding understanding and awareness of the history, purpose and operation of antilapse statutes. At common law, a legacy lapsed where the legatee died in the period between the making of the will and death of the testator.

Billingsley v. Tongue, 9 Md. 575 (1856); 1 Jarmin on Wills 438 (8th ed. London 1951) (1st ed. London 1841-2-3); 6 Page on Wills § 50.10 (Bowe-Parker rev. 1962). The term lapse usually meant the falling back of the legacy into the residue of the estate. 80 Am.

Jur. 2d Wills § 1661 (1975); Black’s Law Dictionary 792 (5th ed. 1979). If a legacy had lapsed and the testator had neither provided for dispostion in case of lapse nor included a general residuary clause in the will, the lapsed legacy passed as intestate property of the testator. 6 Page on Wills, supra at §§ 50.14 — 50.15.- Today most jurisdictions have enacted statutes which prevent the lapse of legacies to persons who predecease the testator, the purpose being to safeguard the interests of those who would take under the legatee. Hemsley v. Hollingsworth, 119 Md. 431 , 87 A. 506 (1913). "These statutes are said to be based upon the presumption that the testator would have made provision for certain relatives of the deceased beneñciary, if his attention had been called to the death of the beneñciary, and he had the opportunity to make such provision.” (Emphasis added). 6 Page on Wills, supra § 50.10.

In addition, this Court has said that the ⁵⁷¹ purpose of the statute is to transfer the legacy to the legatee’s heirs instead of the testator’s heirs and to prevent intestacy or escheat to the state. Mayor & C. C. of Balto. v. White, 189 Md. 571, 575-576 , 56 A.2d 824 (1948). The English antilapse statute, § 33 of the Wills Act of 1837 3 has sometimes been said to be the parent enactment of antilapse statutes, but Maryland’s antilapse statute predates even the English provision, having been enacted in 1810. Chapter 34, § 4, Laws of Maryland of 1810; 4 Hemsley v. Hollingsworth, 119 Md. 431 , 87 A. 506 (1913).

Although the 1810 statute was amended several times, the substance of the portion relevant here remained unchanged until the enactment of the present provision in 1969. Cases under the old Maryland statute involving fact patterns very similar to that in the case at bar were presented to this Court on several occasions. In Glenn v. Belt, supra, a husband and wife made reciprocal wills. The wife died before the husband.

Subsequent to the husband’s death, the administrator of his estate claimed that even if the antilapse statute operated to transfer property to the wife, it came back to his representatives by virtue of her will. This Court declared that her testamentary disposition to him did not include the estate devised to her in his will for ⁵⁷² at her death that property was a mere expectancy of a benefit. The Court held that under the antilapse statute, the property vested in her personal representatives for distribution to her heirs. In a more recent case, Persson v. Dukes, supra, a husband and wife made reciprocal wills.

Following an auto accident, the husband died and the wife survived him by only a few hours. Because the wills were executed prior to 1970 the old statute applied. The Court of Special Appeals affirmed the lower court and ruled that the heirs of the husband were the persons entitled to distribution under the antilapse statute and rejected the contention made by the heirs of the wife that extrinsic evidence could be considered on the issue of intent where the words of the will were plain and unambiguous. We affirmed.

Particularly instructive as to the intended operation of antilapse statutes is the English case of In Re Hensler, 19 Ch. D. 612 (1881). A father devised property to a son who predeceased him leaving issue who survived; the son by his will gave all his estate to his father. It was held that the gift by the son’s will failed and that the devised property went to the son’s heirs.

The court refused to apply the antilapse statute to