Webster v. Larmore

Singley, J., delivered the opinion of the Court. This is the second time that the will of Julia Eva Pollitt has occupied the attention of this Court. In Webster v. Larmore, 268 Md. 153 , 299 A. 2d 814 (1973), we vacated a jury verdict that Julia lacked testamentary capacity at the time she executed her will on 28 December 1964, and entered a judgment n.o.v. in favor of the caveatee. The facts in that case were that in February, 1965, shortly after the execution of the December, 1964 will, which left the residue of her estate to Austin G. Brumley, Julia had married Brumley, lived with him for about a month, and obtained an absolute divorce from him in June, 1966.

In returning the determination of the issue to the Orphans’ Court for Wicomico County, we suggested that consideration might well be given to Chapter 106 of the Laws of 1964, Maryland Code (1957, 1964 Repl. Vol.) Art. 93, § 351 (d) which provide that a will, insofar as it made provision for a testator’s spouse, was revoked by a final decree of absolute divorce granted subsequent to the execution of the will and after 1 June 1964, unless the will or the divorce decree contained a contrary provision, Webster v. Larmore, supra, 268 Md. at 169 , 299 A. 2d at 822 . It was noted that Art. 93, § 351 (d) was in effect when the will was executed, when Julia was married to Brumley, and when she was divorced from Brumley. We might also have pointed out that neither the will nor the divorce decree contained a provision contrary to that contained in Art. 93, § 351 (d).

When the case reached the orphans’ court, Walter D. Webster, Julia’s personal representative, sought an order directing distribution of the residue of Julia’s estate to Brumley’s widow and children, as contemplated by Code (1957, 1973 Supp.) Art. 93, § 9-112 (a), on the theory that Art. 93, § 351 (d) was inapplicable. After a hearing, the court ordered that the residue of Julia’s estate was properly distributable to Julia’s next of kin. Webster sought and obtained authority from the orphans’ court to appeal to this Court at the expense of the estate. We ³⁵³ regard this order as having been improvidently entered.

Although Code (1957,1968 Repl. Vol.) Art. 5, § 9, which deals with appeals from orphans’ courts, seems to speak in absolutes: “Any party may appeal to the Court of Appeals from any decree, order, decision or judgment of an orphans’ court,” it must be construed in the light of the restrictive gloss imposed by our decisions. Admittedly, until the enactment of Chapter 399 (4) of the Laws of 1957, the progenitors of Art. 5, § 9 — Code (1951) Art. 5, § 64; Code (1939) Art. 5, § 64; Code (1924) Art. 5, § 64 — were identical: “From all decrees, orders, decisions and judgments, made by the orphans’ court, the party, who may deem himself aggrieved by such decree, order, decision or judgment, may appeal to the court of appeals.” (Emphasis supplied.) It was the italicized language which was omitted, presumably as surplusage,