Barrett v. Clark

• Decision Date: 08 July 1947
• Docket Number: 25.
• Parties: BARRETT v. CLARK et al.
• Court: Maryland Court of Appeals

54 A.2d 128

189 Md. 116

BARRETT v. CLARK et al.

No. 25.

Court of Appeals of Maryland

July 8, 1947

Appeal from Orphans' Court of Baltimore City; Leo J. Cummings Chief Judge, and Samuel Lasch and Dulany Foster, Judges.

Proceeding by Elizabeth L. Barrett against Harper R. Clark and others executors of the last will and testament of Arthur G Barrett, deceased, and others for an extension f time within which to make election to accept or renounce provisions of decedent's will. From an order of dismissal on ground of lack of jurisdiction to extend the time for making election petitioner appeals.

Order affirmed.

MARBURY, C.J., and DELAPLAINE, J., dissenting.

Samuel J. Fisher and Philip L. Sykes, both of Baltimore, for appellant.

Joseph T. Brennan, of Baltimore (Brown & Brune, of Baltimore, on the brief), for executors, appellees.

p>Page Wilson K. Barnes, of Baltimore (Carman, Anderson & Barnes, and G. C. A. Anderson, all of Baltimore, on the brief), for Rosen and Brown, appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

COLLINS Judge.

A petition was filed in the Orphans' Court of Baltimore City on April 10, 1947, by Elizabeth L. Barrett, surviving widow of Arthur G. Barrett, alleging that her husband died testate on August 21, 1946, and that Letters Testamentary have been granted on his estate. She also made the following allegations. The deceased bequeathed to the petitioner, appellant here, one-sixth of his estate. After the death of Arthur G. Barrett, the appellant was informed of the existence of an alleged agreement between her and the deceased. She says that the contents of this alleged agreement, prior to the time when it was brought to her attention and when she was informed that it was recorded in the Superior Court of Baltimore City, were unknown to her. She filed in the Circuit Court of Baltimore City a bill of complaint, Petitioner's Exhibit No. 1, here, against the executors of her husband's will as defendants, stating that the alleged agreement of June 8, 1944, with her husband was fraudulently secured and praying that it be decreed null and void. She alleges that, according to the inventory filed, the total personal estate of her husband is $294,697.12. She claims that the amount of his estate is considerably larger than the inventory filed. She says that the entire amount of her estate at the time of her marriage to the deceased did not exceed $15,000.00. She alleges that she has been advised that, under the provisions of Code Article 93, Section 314, 1943 Supplement, she will be barred of her legal share in the real and personal estate of her husband unless, within thirty days after the expiration of the notice to creditors, she transmits to the Orphans' Court or the Register of Wills of Baltimore City a written renunciation of the will of her said husband and of all claim to any devise or bequest made to her thereby.

The notice to creditors aforesaid expired on March 27, 1947.

She further alleges that since the death of her husband she had been represented by an attorney of New York City, who has been in communication with the executors named in the will, in an effort to effectuate a settlement of her legal rights. At the time when these negotiations failed, the New York attorney became ill and has not recovered sufficiently to take charge of her case. She consulted, on February 28, 1947, Attorney Samuel J. Fisher, of Baltimore, whom she has retained to establish her legal rights. She says that Mr. Fisher has advised her of the provisions of Code Article 93, Section 315, 1943 Supplement, Acts of 1943, Chapter 133, and that it is not possible to obtain a final adjudication of the issues raised in the bill of complaint aforesaid said filed in the Circuit Court of Baltimore City within thirty days after March 27, 1947. She alleges that should the Circuit Court of Baltimore City decree that the alleged agreement of June 8, 1944, is null and void, then it will be to her advantage to renounce the will of her husband. However, should the Circuit Court of Baltimore City decree adverse to her contention in said equity proceedings, such renunciation may prevent her from receiving any part of her husband's estate.

She prayed in her petition to the Orphans' Court of Baltimore City that the Court enlarge the time within which she may renounce and quit claim any and all bequests or devises in her husband's will for a further period of six months as provided by Article 93, Section 315, 1943 Supplement of the Maryland Code, supra.

An Order Nisi was passed on this petition by the Orphans' Court of Baltimore City. Answers were filed by the executors of her husband's will and by two of the daughters of the deceased, named in his will. These answers, among other things, stated that there is doubt whether the Orphans' Court of Baltimore City had legal authority to extend the time within which the petitioner, Elizabeth L. Barrett, must elect to accept or renounce the provisions of the will of the said Arthur G. Barrett, deceased, as provided by Article 93, Section 314, of the 1943 Supplement of the Code, and submitted the matter for the determination of the Orphans's Court. After hearing on the petition and answers, the Orphans' Court filed an order on April 25, 1947, that, being of opinion that that Court was without jurisdiction to enlarge the time for filing the renunciation as prayed, the petition filed on April 10, 1947, be dismissed. From that order the appellant appeals to this Court.

The appellees claim that, because the time for filing the renunciation in this case expired on April 26, 1947, it would now be impossible for the Orphans' Court of Baltimore City to pass an order before the expiration of that time, whatever disposition is made of the case by this Court, and therefore the question before us is moot. We do not agree with this contention of the appellees. If we find that such action of the Orphans' Court of Baltimore City should be reversed and send that case back for the passage of a correct order, we would not hold that we could not order the Orphans' Court to later correct that order, because the original time for filing had expired before this Court decided the case.

By the Acts of 1924, Chapter 223, Article 93, Section 311 of the 1924 Code, a surviving husband or widow was permitted to file renunciation only within six months after the probate of the will. By Chapter 142, of the Acts of 1941, Article 93, Section 314 of the 1943 Supplement of the Code, an amendment was made to permit the renunciation to be made until thirty days after the expiration of the notice to creditors. Code, Article 93, Section 314, Chapter 128 of the Acts of 1943, now provides in part as follows:

'314. A surviving husband or widow shall be barred of his or her right of dower in land or share in land or share in the personal estate by any such devise or bequest, unless within thirty days (30) after the expiration of the notice to creditors in the wife's or husband's estate, as the case may be, he or she shall deliver or transmit to the Court or Register of Wills where administration has been granted a written renunciation in substantially the following form or to the following effect:'

An Act was passed by the Legislature at the 1933 Session, Chapter 588, now Article 93, Section 315, 1939 Code, which follows:

'An act to add a new section to Article 93 of the Annotated Code of Public General Laws of Maryland, Edition of 1924, the said new section to follow immediately after Section 311 of said Article, sub-title 'Widows,' and to be known as 311A, providing for the execution of renunciation on behalf of an infant or the person incompetent to execute such renunciation, and providing for a further period of time for the filing of such renunciation.

'Section 1. Be it enacted by the General Assembly of Maryland, That a new section be, and the same is hereby added to Article 93 of the Annotated Code of Public General Laws of Maryland, Edition of 1924, entitled 'Testamentary Law,' subtitle 'Widows,' said new section to follow immediately after Section 311 of said Article, to be known as Section 311A. and to read as follows:

'311A. The renunciation as provided in Section 311, be made by the guardian of an infant spouse, when authorized so to do by the Court having jurisdiction of the infant's estate, or may be made on behalf of an incompetent when authorized by the equity court having jurisdiction of the person of said incompetent. The time to make such renunciation may be enlarged before its expiration by an order of the Orphans' Court where such will was probated for a further period of not exceeding six months upon any one application, upon a petition showing reasonable cause and on notice given to such persons and in such manner as the Orphans' Court may direct.'

'Approved April 21, 1933.'

It will be noted that after 'Section 311' in 311A, supra, the word 'may' is missing. By the Act of 1943, Chapter 133, Article 93, Section 315, of the 1939 Code, supra, was repealed and re-enacted and the missing word 'may' was supplied so that Article 93, Section 315, of the 1943 Supplement of the Code, now provides:

'315. The renunciation as provided in Section 314 may be made by the guardian of an infant spouse, when authorized so to do by the Court having jurisdiction of the infant's estate, or may be made on behalf of an incompetent when authorized by the equity court having jurisdiction of the person of said incompetent. The time to make such renunciation may be enlarged before its expiration of an order of the Orphans' Court where such will was probated for a further period of not exceeding six months upon any one application, upon a petition showing...