Whitehill v. Thiess

Bond, C. J., delivered the opinion of the Court. The appellee, husband, and now widower, of Mary O. Thiess, deceased, has obtained a decree for sale of leasehold property held by the wife in her lifetime, and for distribution of one-third of the proceeds to him as his marital share; the remaining two-thirds to be divided among children and grandchildren of the couple. The children and grandchildren, on appeal, contend that as the property was vested in the wife only for and during her life, with remainder to them, the children and grandchildren, no marital rights in the husband attached, and the remaindermen are entitled to the whole. And to this the husband replies that while, by the terms of the conveyance, the title in the mother may have been restricted to a life estate, that estate had joined with it all rights of disposition and enjoyment regularly incident to complete ownership, except the one incident of forming part of her estate upon death, and.that incident was cut off in an effort by her to defraud the husband of his marital rights in her property, and the restriction to the life estate is, because of the fraud, ineffectual, and the estate is now to be treated as subject to those marital rights.

It appears from evidence taken that the husband left his wife and children in the year 1912. The wife brought suit for divorce a vinculo matrimonii, but her evidence of the ground for divorce was found lacking in the requisite certainty. Thiess v. Thiess, 124 Md. 292 , 92 A. 922 . After that time, the wife cared for and reared the five younger children of six at home with her, having apparently only small help contributed by the husband under orders of court.

He had nothing to do with his family otherwise, paid no attention to the wife’s final illness and death, and contributed nothing toward the resulting expenses. He says he was not allowed by the family to come near them. The wife and the children lived a close community life until marriage took some of the children off to separate homes. All the children ⁶⁵⁹ took employment, and the testimony is that they turned their earnings over to the mother, and that out of the common fund thus created she maintained the house in which they lived, and supported the children and herself otherwise.

There seems to have been no thought among them of any individual rights in the money so collected. One of the sons testified that they just trusted the mother to provide for all from the fund. The property concerned in this proceeding, it was testified, was bought and paid for chiefly, if not altogether, out of this money collected from the children’s earnings. It is left uncertain whether any money other than the earnings was used; the oldest daughter testified that there was no other money to go into the purchase, and a son testified that one-third may have come from the mother’s share in an estate of her own mother’s.

In 1923, seven years before the death of Mary C. Thiess, Joseph T. Zoubeck and wife conveyed the property to her, “for and during the term of her natural life only with full power in the said Mary C. Thiess to lease, mortgage, deed or in any otherwise encumber the property absolutely and after her death and without the exercise of the aforesaid power then an undivided fifth interest each to Anna K. Wkitehill, Charles II. Thiess, Hose K. Thiess, Leona Gately and a one-tenth interest each to Evelyn Thiess and Ferdinand G. Thiess as tenants in common.” The habendum clause in the deed defined the estate in the same words. The wife died in 1930 without having exercised the power to dispose of or encubmer the estate. That by its terms the deed conveyed only a life interest to Mary C. Thiess, notwithstanding the addition of the powers, seems clear.

Several decisions of this court settle the construction in that way. Benesch v. Clark, 49 Md. 497 ; Cadle v. Cadle, 152 Md. 459 , 136 A. 895 ; Foos v. Scarf, 55 Md. 301 . It follows that, according to the terms of the conveyance as they stand, there has been nothing to which marital rights in the husband could attach, for such rights attach only to property which forms part of the wife’s estate upon her death. The case is, of course, concerned only ⁶⁶⁰ with rights, or a claim to rights, in the wife’s estate after her death.

Mason v. Johnson, 47 Md. 347, 358 . There is no direct testimony that the wife and the grantor in this deed arranged the title so as to avoid the attaching of marital rights in the husband, but it may be presumed that they did so. Then the principles to be considered are those which have been recently explained in the case cited in argument. Jaw orski v. Wisniewski, 149 Md. 109, 115 , 131 A. 40 .

An attempt to evade the marital rights of one spouse in the estate of the other after death, by preserving to the latter all that complete ownership would give up to death, but disposing in advance of the estate after death, so as to put it out