Stein v. Stein

McSherry, J., delivered the opinion of the Court. This is an appeal from a pro forma decree passed in a special case stated under rule forty-seven of the General Equity Rules. The facts are these: Annie Stein has a dower interest in certain property, which property was directed by the will of her deceased husband to be divided into four equal parts that were then given in trust for the testator’s children. This property cannot be divided, and the widow’s dower cannot be laid off.

To carry out the provisions of the will, a sale and a division of the proceeds is necessary. The questions which the Court is asked to determine are: Can the trustees, appointed by a decree of a Court of Equity to make sale of this property for the purposes of a division, sell the same free from the widow’s dower, without her consent, upon awarding to her for her life one-third of the income derived from the invested proceeds of such a sale ? Or, if the widow should consent to the sale, will she become entitled during her life to one-third of the income derived from the invested proceeds of such sale ? A pro forma decree was passed adjudging that upon a sale of the property, with or without the consent of the widow, she would become entitled to one-third of the income derived from the proceeds of sale; indieu of dower.

From that decree this appeal was taken. It is perfectly obvious that this pro forma decree is wrong. ³⁰⁸ Before, however, proceeding to state the reasons in support of this conclusion, we must advert to the fact that the questions we are called on to decide, have been propounded in a cause in which the same person appears upon both sides of the controversy. Whether the controversy be amicable or hostile, such a procedure is anomalous. A person cannot be both plaintiff and defendant at the same time in the same cause.

Diverse and conflicting interests .cannot be represented on opposite sides of the docket by the same' individual at one and the same time. This Court had occasion to express .its strong disapproval of such a course in Owens & Crow v. Crow & Hubbard, 62 Md. 497 . It was there said, and we now repeat: “We feel obliged to express our disapproval of a practice which has to some extent prevailed, namely, that of putting the same individual on opposite sides of the record. * * * * * It is a solecism in jurisprudence for a party to sue himself. The same will would control both the prosecution and the defense, and there would be no real contestation.

There is no propriety in such a practice, and no necessity for it. * * * * We cannot tolerate such a practice.” Coming now to the questions propounded, it is clear that there are but two conditions under which, in proceedings like this, the inquiry as to what disposition is to be made of the widow’s dower can arise. And these are, first, where she consents to a sale of her deceased husband’s real estate, clear and discharged of her dower right; and secondly, where she does not so consent. In both instances the law .is explicit. As to the first, it is prescribed by sec. 43 of Art. 16 of the Code, that “ in all cases where lands and tenements are to be sold under a decree, and the widow, who is entitled to dower in such lands, will consent in writing to the sale of the entire