Harrison v. Prentice

• Decision Date: 14 June 1944
• Docket Number: 34.
• Citation: 38 A.2d 101,183 Md. 474
• Parties: HARRISON v. PRENTICE et al.
• Court: Maryland Court of Appeals

38 A.2d 101

183 Md. 474

HARRISON v. PRENTICE et al.

No. 34.

Court of Appeals of Maryland

June 14, 1944

Appeal from Circuit Court, Anne Arundel County; James E. Boylan Jr., Judge.

Suit by Robert Harrison against Richard Lindsay Wilson Prentice and another, individually and as executors of the will of Constance Hart Harrison, deceased, and others, to enforce plaintiff's statutory interest, as surviving spouse, in the real estate of deceased. From an order sustaining demurrers to the petition, petitioner appeals.

Reversed and remanded.

William J. McWilliams, of Annapolis (McWilliams, Duckett & Haley, of Annapolis, on the brief), for appellant.

Carlyle Barton, of Baltimore, Md. (Wm. A. Andrews, of Baltimore, on the brief), for appellees Richard Lindsay Wilson Prentice and others.

Linwood L. Clark, of Annapolis, for appellee Lizzie Ennis.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, BAILEY, and CAPPER, JJ.

DELAPLAINE, Judge.

Walter H. Hart, of Annapolis, died in 1937 leaving an estate appraised at several hundred thousand dollars, consisting principally of a number of parcels of land situated in this State. His will, admitted to probate in the Orphans' Court of Anne Arundel County, appointed Mercantile Trust Company of Baltimore his executor, directed the executor to convert his entire estate into cash, gave each of his daughters, Grace Hart and Constance Harrison, an annuity of $200 per month for a period of ten years, made certain specific bequests, and gave the residue of his estate to the Salvation Army, a body corporate, for the use of its Annapolis branch.

On January 20, 1939, a caveat filed by the daughters was settled by an agreement, which contains the following provisions: (1) that the executor is authorized to sell such parcels of real estate as the daughters and the Salvation Army may in writing direct for the purpose of raising money to pay debts legacies, taxes and costs of administration; (2) that the daughters will assign their annuities to the Salvation Army upon its request; (3) that the Salvation Army will thereupon file its election with the executor to receive the real estate remaining unsold 'in its unconverted form,' so that it will be reconverted and thus remain unaffected by the testator's direction to sell, and become vested in the Salvation Army as sole residuary devisee; (4) that the Salvation Army, after acquiring title to the unsold real estate, will give the daughters one-half of the money distributed in the Orphans' Court, and convey to them as tenants in common one-half of the real estate at its appraised value, to be selected by lot, the daughters and the Salvation Army drawing alternately, all adjustments of taxes and rents to be made before the Salvation Army conveys the real estate to them, provided that the total value of money and real estate delivered to them shall not exceed $100,000. On March 20, 1939, Linwood L. Clark, who was bequeathed a stick pin and requested to see that the will 'is faithfully carried out with justice to everyone,' instituted the pending equity proceedings in the Circuit Court for Anne Arundel County to test the validity of the agreement. The Court, upholding the agreement, ordered the estate to be distributed in accordance with its provisions. On May 3, 1940, the daughters and the Salvation Army applied for a judicial declaration of the proper rate of State inheritance tax payable on the residue. It was finally determined by the Court of Appeals that, when a caveat proceeding has been compromised, the rate of inheritance tax is controlled, not by the provisions of the will, but by the amount received under the terms of the agreement. Hart v. Mercantile Trust Co. of Baltimore, 180 Md. 218, 23 A.2d 682.

On March 20, 1942, Mercantile Trust Company reported that Constance Harrison, whose domicile was in Suffolk County, England, had died and that her will had been probated in Ipswich, and thereupon asked for instruction as to the proper method of determining the interests of the parties under the settlement agreement. At that time the executor had about $40,000 more cash than necessary for payment of debts, legacies, taxes and costs of administration; but it was considered advisable to offer the remaining real estate for sale without waiting for a final decision on the subject. Accordingly, on January 8, 1943, the Chancellor ordered the executor to continue making sales, and to hold the proceeds subject to future determination of the interests of the parties, provided that in such determination 'the proceeds of said sales shall be considered to be the real estate itself, to all intents and purposes and as fully as though said sales had not been made.' Robert Harrison, appellant, filed his petition on February 16, 1944, claiming that his deceased wife, Constance Harrison, left an interest in real estate in Maryland in which he is entitled to share under the law of this State. He alleged that his wife had sued him for divorce but had never obtained a decree, and while he had seven children of his own, she had none. If Mrs. Harrison left any personal estate in Maryland, it would be distributed according to the Act of Parliament, which provides that where a person dies domiciled in England, leaving a wife or husband or dependent child, and leaving a will, 'then, if the court * * * is of opinion that the will does not make reasonable provision for the maintenance of that dependent, the court may order that such reasonable provision as the court thinks fit shall * * * be made out of the testator's net estate for the maintenance of that dependent.' Inheritance (Family Provision) Act, 1938; Public General Acts of Parliament, 1937-38, ch. 45. For it is recognized that the transfer of personal property is governed by the lex domicilii. When the owner of personal property dies, the law of the country in which he has his domicile, and not the law of the country in which the property is found, regulates the succession. Noonan v. Kemp, 34 Md. 73; Craig v. Craig, 140 Md. 322, 328, 117 A. 756. But the interest of the surviving spouse in the real estate of a deceased spouse is determined by the lex loci rei sitae. Restatement, Conflict of Laws, sec. 248. The State has plenary power to determine the manner in which real estate therein may be conveyed or devised, and to prescribe the succession in case of intestacy. Bish v. Bish, Md., 31 A.2d 348; Roach v. Jurchak, Md., 35 A.2d 817.

The Maryland testamentary statute provides that, if in effect nothing passes to the surviving husband under a devise in the will of a deceased wife, he is not barred thereby, whether he makes a renunciation or not, but he takes one-third of the real estate as heir and one-third of the surplus personal estate, if his wife is survived by descendants; or one-half of the real estate as heir and one-half of the surplus personal estate, if his wife is not survived by descendants, but is survived by father or mother. Code, art. 93, secs. 318, 330. Our inheritance statute also provides that a surviving spouse shall take as heir the same share in any real property within this State, belonging to the deceased spouse at the time of his or her death, though the deceased spouse dies testate, which the surviving spouse would take in the personal property of a resident spouse dying testate. Code, art. 46, sec. 3. If a wife makes no provision in her will for her husband, no renunciation is necessary in order to receive his lawful share in her estate. Pacholder v. Rosenheim, 129 Md. 455, 99 A. 672, L.R.A.1917D; 464 Marriott v. Marriott, 175 Md. 567, 575, 3 A.2d 493. Hence, if Mrs. Harrison is survived by her mother, but not by any descendant, her husband is entitled to one-half of her real estate. However, the Chancellor held that the did not leave any interest in real estate in Maryland. The surviving husband is now appealing to this Court from an order sustaining demurrers to his petition.

It is a familiar doctrine of equity that where a testator manifests a clear intention that his real estate shall be sold and the proceeds thereof distributed, the court considers the real estate converted into...