Bartlett v. Ligon

• Decision Date: 16 January 1920
• Docket Number: 74.
• Parties: BARTLETT v. LIGON et al.
• Court: Maryland Court of Appeals

109 A. 473

135 Md. 620

BARTLETT v. LIGON et al.

No. 74.

Court of Appeals of Maryland

January 16, 1920

Appeal from Orphans' Court of Baltimore City.

Petition by the Safe Deposit & Trust Company of Baltimore administrator c. t. a. of estate of Mary W. Jordan, for distribution. From a decree in favor of W. D. Ligon and others, George W. B. Bartlett appeals. Affirmed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER, and ADKINS, JJ.

Frank Gosnell, of Baltimore (Frank Gosnell, Jr., and Marbury Gosnell & Williams, all of Baltimore, on the brief), for appellant.

Philip H. Close, of Bel Air, and George P. Bagby, of Baltimore (James T. Carter, of Baltimore, on the brief), for appellees.

BOYD C.J.

This is an appeal from a decree of the orphans' court of Baltimore city directing the Safe Deposit & Trust Company of Baltimore, administrator c. t. a. of the estate of Mary W Jordan, to make distribution of the personal estate and property of the said Mary W. Jordan remaining in its hands, by dividing the same equally, share and share alike, among the persons therein named as her next of kin. That decree was the result of a petition filed by the administrator c. t. a. under the provisions of section 143 of article 93 of the Code.

Mrs. Jordan made a will on the 2d of April, 1904, by which she willed and bequeathed all of her estate to her son by a former marriage, Dr. Charles F. Nolen. He died on June 30, 1916, and Mrs. Jordan died on June 23, 1918, without leaving a husband or issue surviving her, and without having changed her will. On a petition filed in the circuit court for Baltimore county by Dr. Nolen, a writ de lunatico inquirendo was issued a few days before his death, and by an inquisition taken July 5, 1916, the jurors found that Mrs. Jordan was "of unsound mind and a lunatic without lucid intervals, so that she is not capable of the government of herself or the management of her estate, and that she has been in such state of mind for more than a year past." The next day the circuit court confirmed the inquisition, and appointed the Safe Deposit & Trust Company committee of her person and of her estate, which consists entirely of personalty. The main controversy is whether the bequest to Dr. Nolen lapsed, and hence the estate passed to the next of kin of Mrs. Jordan, or whether it was saved from lapsing, and therefore went to the next of kin of Dr. Nolen. That depends upon the construction and effect of Acts 1910, c. 37, which amended section 313 of article 93 of the Code of 1888 (now section 326 of article 93 of Ann. Code). In 1810 a statute was passed to prevent the lapsing of a devise, legacy, or bequest by reason of the death of the devisee or legatee in the lifetime of the testator, which continued in force in this state without any modification or change which would affect this case until 1910. The language used in the Codes of 1860 and 1888 is the same as that in the act of 1910, with the exception of a proviso added by that act, and the words "except as hereinafter provided," inserted by reason of the proviso being added. But for the change made by the act of 1910 there could have been no question about the right of Dr. Nolen's next of kin to take the estate, and hence we will only quote the new part of the act, which is:

"Provided, however, that this section shall not apply to the last will, testament or codicil of any person dying after [the passage of this act] March 31, 1910, where the maker of said last will, testament or codicil, after the execution thereof and before the death of such devisee or legatee, shall become insane or otherwise incompetent to cancel, revoke, annul, obliterate or alter said last will, testament or codicil."

Under our construction of the statute in Hemsley v. Hollingsworth, 119 Md. 431, 87 A. 506, it "must be construed to mean shall become insane or otherwise incompetent, and so continue to be, that the testator is unable to change his will." Therefore, if a testator recovered or had such lucid intervals as would enable him to cancel, revoke, annul, obliterate, or alter his will, the proviso would not apply. But the important question now to be determined is whether it was intended that the act should apply to wills made before the act was passed, if the testator became insane or incompetent after it passed, but before the devisee or legatee died, and then survived such devisee or legatee.

As a devise or bequest did lapse at common law, if the devisee or legatee predeceased the testator, unless there was something in the will to save it, it was only by reason of the act of 1810 that such lapses were avoided in this state during the 100 years that act was in force before the act of 1910. The Legislature could have entirely repealed the act of 1810, instead of repealing and reenacting it with an amendment, as it did in 1910, and, if it had done so, all wills made prior to the passage of such an act, if the testators died afterwards, would have been affected by the repeal, so that the devises and bequests to devisees and legatees who predeceased the testators would have lapsed. We do not, of course, refer to wills in which there were provisions which would have prevented them from lapsing. It will be well to recall some of the decisions which this court has rendered which may aid us in determining this case. In Glenn v. Belt, 7 Gill & J. 362, 367, the court held in reference to the act of 1810 that-

"The time of the transfer is the death of the testator; and, as the legatee died before the testator, he would not be the person meant as the object of the statutory transfer. But the law refers to such persons then in esse, entitled by law to the distribution of the legatee's estate in case of intestacy-that is, his representatives."

The court referred to the unreported case of Spence v. Gillis, decided by the Court of Appeals on the Eastern Shore, June term, 1824, as decisive of the one then before it. In that case Mary Spence made her will October 28, 1809, and died September 1, 1821. She made Sally Spence, who died in 1812, her residuary legatee. Ara Spence administered on the estate of Mary, and there was a residue for which Joseph Gillis, executor of Sally Spence, sued Ara Spence. The county court gave judgment for the plaintiff, but upon appeal it was reversed, and the residue was distributed to the representatives of Sally Spence. It will thus be seen that, although the will of Mary Spence was made in 1809, and she died in 1821, the act of 1810 was held to be applicable to her will, and the residue went to the representatives of Sally Spence who had died in 1812. If that had not been so, then a devise or legacy in any will made before the act of 1810 would have lapsed if the devisee or legatee had predeceased the testator. Such a construction might have affected many wills made before the act of 1810, and there is no case in this state holding that a devise or bequest in a will made before the act of 1810 by a testator who died after the passage of the act lapsed because the will was made before 1810. As the act of 1810 was held to be applicable to wills made before its passage, it is difficult to see why the act of 1910 should not be.

In Magruder v. Carroll, 4 Md. 335, our predecessors held that Acts 1849, c. 229, relating to wills passing real estate afterwards acquired of which the testator died possessed, included wills executed prior to the passage of the act, although Chief Justice Taney had in the United States Circuit Court held to the contrary. The Supreme Court of the United States also held contrary to the Court of Appeals in a case before it (Carroll v. Carroll, 16 How. 275, 14 L.Ed. 936), but our predecessors in Alexander v. Worthington, 5 Md. 471, followed the ruling in Magruder v. Carroll, in a vigorous opinion delivered by Chief Judge Le Grand, notwithstanding the decision of the Supreme Court; it not being a question of which the decision of that court was necessarily controlling.

In Trustees of Western Md. College v. McKinstry, 75 Md. 188, 23 A. 471, Mary M. McKinstry died on the 28th of December, 1890, and letters of administration were granted to her brother. On the 25th of the following March the administration took to the orphans' court a Bible which had belonged to the deceased, and upon a leaf in the back of it there was written in the handwriting of the deceased gifts to the Western Maryland College, the Theological Seminary, and to Ward Hall, dated July 18, 1883, and signed Mamie McKinstry. Prior to the adoption of Acts 1884, c. 293, which required two or more witnesses, no more formality was required in the execution of a will disposing of personal property than in that paper, and the second section of the act of 1884 expressly saved from its operation all wills bequeathing only personal property executed before August 1, 1884. But as in the Code of 1888 that saving clause was omitted, and Miss McKinstry died after that Code went into effect, it was held that the paper was not entitled to be admitted to probate as a valid will of personal property. See, also, Remington v. Met. Savings Bank, 76 Md. 546, 25 A. 666. In Colonna v. Alton, 23 App. D.

C. 296, the Court of Appeals of the District of Columbia, through Chief Judge Alvey, held that, as a will did not comply with the formalities required by a statute passed after the will was executed and before the death of the testator, it was invalid. There are many other cases to the same effect.

Without quoting from other cases to illustrate the position this court has taken, the doctrine is settled beyond controversy here and elsewhere, that, as wills are ambulatory, they do not take effect until the death of the testator. Wills of personal property speak and take effect as if...