Bruce v. Dyer

• Decision Date: 01 September 1985
• Docket Number: No. 1079,1079
• Citation: 67 Md.App. 499,508 A.2d 510
• Parties: , 55 USLW 2011 Nancy Lee BRUCE v. Linda Lee DYER, Personal Representative of the Estate of Horace Allen Bruce. ,
• Court: Court of Special Appeals of Maryland

Page 499

67 Md.App. 499

508 A.2d 510, 55 USLW 2011

Nancy Lee BRUCE v. Linda Lee DYER, Personal Representative of the Estate of

Horace Allen Bruce.

No. 1079, Sept. Term, 1985.

Court of Special Appeals of Maryland.

May 13, 1986.

Peyton Paul Phillips (Frederick J. Bower, on brief), Frederick, for appellant.

Laurie R. Gitajn (Alan D. Massengill, on brief), Gaithersburg, for appellee.

Argued before WILNER, BELL, ROSALYN B., and KARWACKI, JJ.

KARWACKI, Judge.

In this case we shall hold that a separation and property settlement agreement, providing certain real property of the parties held as tenants by the entireties should be sold and the proceeds divided between the estranged spouses, created an enforceable interest in that real property which formed part of the estate of the spouse who unexpectedly died prior to any sale being negotiated. The facts on which this holding is based are not in dispute.

Nancy Lee Bruce, the appellant, and her late husband, Horace Allen Bruce, voluntarily separated on July 12, 1984. They executed the separation and property settlement agreement in question on October 11, 1984. That agreement provided, inter alia:

MARITAL HOME TO BE SOLD

The parties own, as tenants by the entireties, improved premises known as 10826 Easterday Road, Myersville, Maryland 21773 (the "Home"). The Home is subject to the lien of a mortgage. The parties shall sell the Home putting it up for sale and putting it on the market by October 15, 1984, either directly or through a broker of their choice, at a price agreed upon by the parties, or, if they are unable to agree, at a price determined by a broker selected by Husband and Wife or their counsel. The parties shall execute any contract to make a sale of the Home and any deed and/or other document necessary to consummate the sale under contract and in accordance with this Paragraph. If for any reason either party does not, within 21 days of delivery to him, execute any listing contract or contract to make a sale of the Home, in accordance with the provisions of this Paragraph, or any deed, instrument or other such document, then the other party may execute the same on his or her behalf as his or her agent pursuant to any agency coupled with an interest, and each party hereby irrevocably appoints the other with the full power of an attorney-in-fact for him or her to execute, acknowledge and deliver any and all necessary or desirable contracts, deeds, releases, mortgages, instruments or documents for the purpose of listing, conveying, clearing or waiving any interest or right in the Home as fully as he could do personally, with full power of substitution and confirming all that the agent and attorney-in-fact or substitute may do or cause to be done. Upon the sale of the Home in accordance herewith, the net proceeds of sale shall be divided 55% to Husband and 45% to Wife. The net proceeds of sale shall mean such sum as remains after deducting from the gross sales price (1) any broker's commissions and/or attorney's fees incurred in connection with the sale, (2) all expenses of the sale and closing costs, (3) the principal, accrued interest and any prepayment penalty due on the mortgage.

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G. As to these covenants and promises, the parties hereto severally bind themselves, their heirs, personal representatives and assigns.

On December 14, 1984, subsequent to the time that the marital residence was offered for sale, but prior to the receipt of any offers of purchase, and while the parties were still married, Horace died as a result of injuries sustained in an automobile accident. Thereafter, the appellant instituted an action against the personal representative of her husband's estate, the appellee, seeking a declaratory judgment that the appellant was the sole owner of all interests in the marital home free of any claims thereto by the appellee. In her answer to this complaint, the appellee asked the court to "... determine the interest of the Plaintiff and the estate of Horace Allen Bruce in the real property in question by declaring that the Voluntary Separation and Property Settlement Agreement established those interests." The issue thus joined was resolved by the Circuit Court for Frederick County on the appellee's motion for summary judgment. In granting the appellee's motion the court entered a declaratory judgment that "... the interests of the Plaintiff, Nancy Lee Bruce, and the Estate of Horace Allen Bruce are as set out in the Voluntary Separation and Property Settlement Agreement between Nancy Lee Bruce and the late Horace Allen Bruce." In its oral opinion delivered at the conclusion of argument on the motion the court explained its rationale for that judgment, as follows:

It's clear that the intent of the parties by the agreement was to, in effect, terminate the tenancy by the entireties; that they each spelled out their respective rights in the estate, fifty-five/forty-five percent, as shown; and contractually, I see no reason, by reference to any of the cases, why the parties cannot terminate the estate by a valid contract.

And for that reason I will find that the estate was terminated by the valid contract between the parties, and that Mrs. Bruce did not take the entire property by operation of law upon the death of Mr. Bruce, while they were still married; and I will grant the motion for summary judgment filed by the defendant.

We will vacate the declaratory judgment which was entered for reasons we now explain.

We reject the notion that the tenancy by the entireties in the subject property was converted into a tenancy in common when the tenants executed their separation and property settlement agreement on October 11, 1984. Since the tenants remained married, legal title to the premises continued vested in them as a team, reflecting the traditional view of this tenancy based upon the common law fiction of the "oneness" of a husband and wife. Beall v. Beall, 291 Md. 224, 234-35, 434 A.2d 1015 (1981); Spessard v. Spessard, 64 Md.App. 83, 91, 494 A.2d 701 (1985). This would be so, even if the agreement had been recorded as permitted by Md.Code (1974, 1981 Repl.Vol.), § 3-102 of the Real Property Article. Kingsley v. Makay, 253 Md. 24, 27, 251 A.2d 585 (1969). While they remained husband and wife the tenancy of these spouses could only have been severed by their execution of a deed meeting the requirements of Md.Code, supra, § 4-101 and 4-108 of the Real Property Article and its recording pursuant to Md.Code, supra, § 3-101. East. Shore v. Bank of Somerset, 253 Md. 525, 532, 253 A.2d 367 (1969); Kingsley v. Makay, supra, [253 Md. 24] at 27, 251 A.2d 585. Consequently, on the death of her co-tenant by the entireties, the appellant gained sole legal title to the property. State v. Friedman, 283 Md. 701, 705, 393 A.2d 1356 (1978).

Whether the appellee is possessed of any enforceable interest in the property, therefore, depends on the effect of her decedent's death upon the promises of the spouses with regard to their former marital home. These promises were incorporated in a comprehensive agreement they executed in light of their domestic discord in an attempt

... to settle all questions of custody of their Child, maintenance and support, alimony, counsel fees, their respective rights in the property or estate of the other, and in property owned by them jointly or as tenants by the entireties, and in marital property, and all other matters of every kind and character arising from their marital relationship.

Recognizing the uncertainties of life they expressly bound "themselves, their heirs, personal representatives and assigns" to the performance of the agreement. Nothing in the agreement suggests that the parties intended that their mutual promises to sell their marital home and divide the proceeds should not survive their possible deaths prior to such a sale being consummated.

Under Md.Code (1974), § 1-101(p) of the Estates and Trusts Article, the property which passes to the personal representative of a decedent

... includes both real and personal property, and any right or interest therein. "Property" refers to (1) all real and personal property of a decedent and (2) any right or interest therein which does not pass, at...