Bish v. Bish

• Decision Date: 09 April 1943
• Docket Number: 42.
• Parties: BISH v. BISH et al.
• Court: Maryland Court of Appeals

31 A.2d 348

181 Md. 621

BISH v. BISH et al.

No. 42.

Court of Appeals of Maryland

April 9, 1943

Dissenting Opinion April 16, 1943.

Appeal from Circuit Court, Carroll County; William Henry Forsythe Jr., Judge.

Suit by Alverta J. Bish against Milton W. E. Bish and others to enforce the plaintiff's undivided one-third interest in real estate. From a decree for defendants, plaintiff appeals.

Affirmed.

MARBURY DELAPLAINE, and GRASON, JJ., dissenting.

Theodore F. Brown, of Westminster (A. Earl Shipley of Westminster, on the brief), for appellant.

F. Neal Parke, of Westminster, for appellees.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, MELVIN and ADAMS, JJ.

COLLINS Judge.

Nelson G. Bish, a resident of York County, State of Pennsylvania died on January 29, 1939, seized and possessed of real estate in Pennsylvania and in Carroll County, Maryland. He left a will which was admitted to probate in York County, Pennsylvania, on February 4, 1939, and letters testamentary were immediately granted to Theodore H. Bish. The pertinent parts of the will are as follows:

'II. I will to my wife Alverta J. Bish the income of three thousand (3000.00) dollars and the property along the State Highway as long as she may live. At her death to ---- sold and the proceeds to be divided, Share and share alike among my six children, except Milton W. E. Bish the sum of five ($5.00) dollars.

'Curley L. S. Bish share to have seven hundred ($700) dollars deducted for payment of notes, then his heirs to have share as amount remains Theodore H. Bish, Ellen S. M. J. Lohr (nee Bish), Goldie M. A. Noble (nee Bish), J. Paul A. Bish, my executor to to see that the three thousand ($3000) dollars are safely invested for my wife Alverta J. Bish. Her income to be paid every six month. The home to by hers till her death when it shall be sold by my executors and divided among my six children share share and share alike, except Milton W. E. Bish to have only five ($5.00) as his share.

'And I hereby nominate, constitute and appoint Theodore H. Bish and Benjamin Noble Executors of this, my last will and testament.'

There is no separate mention of the land in Carroll County, Maryland. On February 6, 1939, the widow, Alverta J. Bish, the appellant here, and the second wife of Nelson G. Bish, filed in the Orphans' Court in York County, Pennsylvania, in writing, her election to take under the last will and testament of the deceased. On August 8, 1939, a certified copy of the record of proceedings in the Orphans' Court of York County, Pennsylvania, was filed in the Orphans' Court of Carroll County where Ancillary Letters of Administration were immediately granted to the said Theodore H. Bish.

Later, on November 13, 1940, which was more than one year and nine months after the granting of letters testamentary, Alverta J. Bish filed in the Orphans' Court for York County, Pennsylvania, a petition in which she alleged that when she filed her election to take under the will, she did not have full understanding of her rights and asked the Court there to set aside her election and that she be allowed to file her election to take against the will. On December 19, 1940, an order was passed by that Court cancelling the election of the said Alverta J. Bish to take under the will and ordered that her election to take against the will be entered on record. A certified copy of these proceedings was filed in the Orphans' Court for Carroll County, Maryland, after December 31, 1940.

The heirs at law of the said Nelson G. Bish were his widow, Alverta J. Bish; a son, Milton W. E. Bish; a son, Theodore H. Bish; a daughter, Ellen S. M. J. Lohr; a daughter, Goldie M. A. Noble; a son, J. Paul A. Bish; and two grandchildren, the children of a deceased son, Curly L. S. Bish, namely, Wilmas Bish and Effie Strickler.

On December 9, 1942, the widow, Alverta J. Bish, filed a bill of complaint against the other heirs in the Circuit Court for Carroll County, Maryland, alleging the facts hereinbefore set forth and that, by reason of her renunciation of the aforesaid will, she was entitled to an undivided one-third interest in the real estate in Carroll County, Maryland, and that it was to the interest and advantage of all parties that this real estate be sold under decree of the Equity Court for Carroll County and that one-third of the proceeds be paid to her and the remainder, according to the last will and testament of Nelson G. Bish. The Union Mills Savings Bank was made a party defendant by reason of a judgment obtained against some of the heirs. Filed with this bill of complaint was an Exhibit A, which she stated was the last will and testament of the deceased.

An answer to the bill of complaint, filed by Theodore H. Bish, one of the heirs, alleged, in part, that the statute law of the State of Maryland was not complied with to make an effective renunciation of the will in Carroll County, Maryland, and denied that the plaintiff was entitled to an undivided one-third interest in the real estate and after other allegations, asked that he be dismissed with costs.

A demurrer to the answer of Theodore H. Bish was filed, whereupon the following agreement for decree was filed: that that land 'be sold by trustees appointed by the Circuit Court for Carroll County, in Equity, and the net proceeds of sale be brought into Court and distributed among the parties entitled, in accordance with their respective interests as the same may be determined by the court in the above entitled cause, the parties to this cause reserving the right of appeal therefrom.'

A decree was then entered decreeing the sale of the farm and providing that: 'net proceeds of sale to be distributed and disposed of under direction of the Court 'in accordance with the respective rights and interest of all the parties to this cause, in accordance with their respective interests and estates, as though the net proceeds of sale were real estate and make distribution as the court shall find the several and respective parties entitled.''

The sale of the real estate for $4,830 was made, reported to the Court, ratified and confirmed, and the purchase money paid to the trustees.

On November 25, 1942, a decree was passed by the Chancellor decreeing that by the failure of Alverta J. Bish to renounce the will in the place and within the time provided by the Maryland statute, that the land and the net proceeds therefrom in Carroll County pass according to the terms and provisions of the last will and testament of Nelson G. Bish. It was further ordered in the decree that testimony be taken before one of the examiners of the Court as to what real and personal estate was taken by the heirs in Pennsylvania in order to redress what inequalities, if any, may result to other beneficiaries by reason of the renunciation of the will by Alverta J. Bish in Pennsylvania and taking under the will with respect to the real estate of the testator in Carroll County, Maryland.

An appeal is taken to this Court by Alverta J. Bish from that decree.

The primary question for our decision is: Is the renunciation made by Alverta J. Bish on November 13, 1940, in Pennsylvania, more than one year and nine months after the granting of letters testamentary, a renunciation of the will in Maryland, where part of the real estate was located?

Code 1924, Art. 93, section 311, in force at the time of the death of the testator, now Code 1939, Art. 93, section 314, provides: '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 six months after the first grant of letters testamentary upon the wife's or husband's will, 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'. The form then follows. Chap. 142 of the Acts of 1941 and Chap. 499 of the Acts of 1939 were not in force at that time. The mode of transfer of land and the right of succession on intestacy is controlled by the law of the place where it is located. Tiffany on Real Property, 2nd Ed., Volume I, § 1, p. 3; Miller's Construction of Wills, p. 11, § 3. This Court said in the case of Collins v. Carman, 5 Md. 503, at page 530: 'If she makes no election within the time prescribed, the law makes it, without stopping to enquire why or for what reason she made none.' Gough v. Manning, 26 Md. 347, 366; Kernan v. Carter, 132 Md. 577, 588, 104 A. 530. Chief Judge Bond said in the case of Yungerman v. Yungerman, 165 Md. 609, 611, 170 A. 170, 171, 911 A.L.R. 863: 'Only by positive renunciation within the time limited can the bar be avoided.' Quoting from Miller on Construction of Wills, page 824: 'The law makes failure to renounce, whether voluntary or not, an acceptance of the devise. In legal contemplation a widow who does not renounce the valid gifts made to her by the will does accept or abide by them.' The law in this state could certainly not be more positive that, unless a widow renounces within the time allowed by the statute, she accepts under the will.

Appellant argues that, because Pennsylvania was the state of domicile of the testator, the election to take against the will in Pennsylvania acts as a renunciation of the will everywhere. However, the renunciation in Pennsylvania was not made within the time allowed and only by order of the Orphans' Court of York County, Pennsylvania, was she given the right to file the renunciation after the time had expired. The Maryland statute does not limit the time of the election to the wills of residents only, and there being no such restriction, it must...