Evans v. McCoy

• Decision Date: 23 October 1981
• Docket Number: No. 115,115
• Citation: 436 A.2d 436,291 Md. 562
• Parties: Standley EVANS et al. v. Lowell W. McCOY et al.
• Court: Maryland Court of Appeals

Page 562

291 Md. 562

436 A.2d 436

Standley EVANS et al. v. Lowell W. McCOY et al.

No. 115.

Court of Appeals of Maryland.

Oct. 23, 1981.

Melvin J. Sykes, Baltimore (William B. Evans, Elkton, on the brief), for appellants.

William W. Cahill, Jr., Baltimore (William H. Holden, Jr., Richard C. Burch and Weinberg & Green, Baltimore, Leonard H. Lockhart, Elkton, on the brief), Diana G. Motz, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

RODOWSKY, Judge.

This case involves whether adopted adults are "issue" under a will effective before the general adoption statute provided for adult adoptees. At stake is a farm devised to the testator's children, none of whom had natural offspring. The devise in is fee, determinable "(i)n the event all of (the testator's) children ... shall die without leaving issue living at the time of there death ...." The surviving child made the adoptions late in life, as a step in her sale of the farm. Those who would take the gift over claim that the adoptions do not avoid the condition of defeasance and that the expressly retroactive statutory rule, under which "issue" includes any adopted person, absent a contrary intent plainly appearing from the will, is unconstitutional. Our opinion is that the statute is valid and controlling, and that the condition does not operate.

The testator, Amos S. Evans, late of Cecil County, Maryland, died in 1899. Amos owned a farm of over 200 acres near Rising Sun. He was survived by his widow, Agnes, by a daughter, Rebecca, born November 21, 1896, by a posthumously born son, James Hugh, and by two bothers, James Hugh Evans and William S. Evans. William S. Evans, a practicing attorney in Elkton, prepared Amos' longhand will of June 4, 1897. We are concerned here with the disposition of the residue under paragraphs 3 and 4 of the will which provide:

3-The rest and residue of my property and estate real, personal and mixed, I give devise and bequeath unto my daughter Rebecca S. Evans and any other children who may be born to me hereafter, either before or after my death, and the survivor and survivors of them share and share alike.

4-In the event that all of my children (born in my lifetime or posthumous) shall die without leaving issue living at the time of their death, or in the event that I shall die leaving no children surviving me, whether born in my life time or posthumous, then I give devise and bequeath the said rest and remainder of my estate mentioned in paragraph three aforesaid hereof equally unto my brothers James H. Evans and William S. Evans and their heirs, it being my intention, and I so devise give and bequeath that if either or both or my said brothers should be deceased at the time of the happening of said contingency, the share to which they (my said brothers) would each be entitled under the provisions hereof shall vest in their respective heirs at law.

The testator's son died in 1962 without issue but survived by a widow, Helen. Rebecca married Earl R. Kirk who died in May 1977. Rebecca died on May 27, 1978 without having had any natural children but after she and her husband had adopted two adults. Amos' brother, James Hugh, died without issue in the 1920's. Amos' brother, William, died in 1919. He had eight children. The heirs of William are the plaintiffs-appellants in this case.

Following the death of her brother in 1962, Rebecca leased the farm but she was not receiving sufficient income from it to suit her. Over the years she made repeated efforts to sell the property.

In about 1970 Rebecca, who resided in Wilmington, engaged Delaware counsel to assist in a sale of the property. On August 14, 1973 a contract of sale was signed. The contract covered 208 acres at a purchase price of $187,200, of which 71% was payable in four equal annual installments to be secured by a take-back purchase money mortgage. The buyer was an agent for appellee Lowell W. McCoy (McCoy). William B. Evans, one of the appellants, put counsel for McCoy on notice of the provisions of Amos' will. On November 7, 1973 counsel for McCoy wrote to Rebecca's attorney rejecting the title. The letter enclosed a memorandum from a legal research service which suggested that an adoption by Rebecca might solve the title problem. In a letter which Rebecca's attorney wrote in 1979, in connection with his claim against Rebecca's estate for legal services, he described the adoption procedure as having been worked out in consultation with, inter alia, McCoy's attorney, and that it "was our thought that we may by pass the contingent remaindermen in the Amos S. Evans' estate by seeking relief offered under" the section of the Maryland adoption statute dealing with construction of wills.

Under a decree entered November 16, 1973 by the Superior Court of New Castle County, Delaware, Rebecca and Earl Kirk adopted a married 21-year-old, Kathleen Lucille Husfelt. Rebecca was then 76 years of age. Delaware procedure for adult adoptions required no notice to any of the relatives of Rebecca nor any evidentiary hearing concerning the reasons for the adoption. On her deposition in these proceedings Mrs. Husfelt testified that the idea of the adoption originated with Rebecca and that the adoption made no practical difference in her relationship with Rebecca. Mrs. Husfelt had known the Kirks as neighbors for 10 or 11 years. Mrs. Husfelt said she was at the Kirks' home "every weekend, maybe during the week a couple of times" and that she and the Kirks went on trips together.

The sale to McCoy closed on July 12, 1974 under a written escrow agreement between McCoy and Rebecca and her sister-in-law, the widow of James, as "obligees" ¹ which recited "the uncertainty recognized by all parties of whether or not the said Deed vests or will vest fee simple absolute title in McCoy ...." In broad outline the escrow agreement provided that the cash deposit and the cash paid at closing would be held in escrow and that the deferred payments would be made into escrow. The condition of the escrow turned on the title, if any, to be obtained by McCoy at Rebecca's death. If a "court of final jurisdiction" decreed that McCoy had good fee simple absolute title to the property, then the escrowed funds, less a legal fee not to exceed $50,000, were to be paid equally to the obligees, their representatives and assigns. If McCoy did not obtain title, the escrowed funds, and accrued interest thereon, were payable to McCoy. In addition, and outside of the escrow, interest at the rate of 7% per annum was payable on the unpaid balance of the deferred portion of the purchase price to the obligees during Rebecca's life, and thereafter into escrow. During Rebecca's life, and beginning with the fifth year from the date of closing, McCoy was to pay to the obligees $2,212 annually which was agreed to represent the then present annual net income from the farm.

In August 1975 McCoy's counsel, in a letter to Rebecca's counsel, pointed out the possibility that the adoptee, Mrs. Husfelt, might predecease Rebecca and suggested that Rebecca "consider adopting at least one more person so that the odds will be increased that (Rebecca) will leave adopted issue surviving."

On March 26, 1976 in the New Castle County, Delaware court, Rebecca and Earl Kirk adopted Janet Ann Facciolo, who was married and age 53. Rebecca was then age 79. Mrs. Facciolo was a first cousin of Rebecca on Rebecca's mother's side. Rebecca and Mrs. Facciolo would visit occasionally. Rebecca told Mrs. Facciolo that she wanted to adopt her "on account of this land in Maryland."

Neither of the adoptees was promised any money or other advantage in return for her consent to be adopted.

Rebecca executed her Last Will and Testament July 29, 1976. It appointed Mrs. Husfelt and Mrs. Facciolo as co-executrices, without bond, and gave them her estate in equal shares in the event, as was the case, that Rebecca's husband predeceased her. Both adoptees survived Rebecca.

In October 1978 the appellants brought this action of ejectment. The trial court entered summary judgment in favor of the appellees. ² We granted certiorari prior to consideration of the case by the intermediate appellate court.

I

The ultimate question is whether the adoptees are "issue" of Rebecca under her father's will. In order better to understand the arguments advanced, it is desirable to review the general legal background out of which the case arises. The first adoption statute in Maryland was Chapter 244 of the Acts of 1892. It applied only to minor children. Md. Code (1888, 1898-1900 Supp.), Art. 16, § 62A. Under that Act the effect of a decree of adoption was "to entitle the child so adopted to the same rights of inheritance and distribution as to the petitioner's estate ... as if born to such petitioner in lawful wedlock ...." Id., § 62C. (Emphasis added). Section 62E provided that the "term 'child' or its equivalent in a deed, grant, will or other written instrument shall be held to include any child adopted by the person executing the same, unless the contrary plainly appears by the term (sic) thereof, whether such instrument be executed before or after the adoption." (Emphasis added). These provisions were in effect at the time of Amos' 1897 will.

Special laws had occasionally been passed by the General Assembly providing that a certain named adult person should thereafter be the adopted child of another named person, ³ but the general adoption statute was not amended to include the adoption of adults until the enactment of Chapter 172 of the Acts of 1937.

The rule embraced in the 1892 general adoption statute, by which the presumed inclusion of an adopted child within the term "child," or its equivalent, was limited to instruments executed by the adoptive parent, is known as the "stranger to the adoption rule." See Halbach,...