Hewitt v. Shipley

• Decision Date: 01 November 1935
• Docket Number: 19.
• Citation: 181 A. 345,169 Md. 221
• Parties: HEWITT v. SHIPLEY.
• Court: Maryland Court of Appeals

181 A. 345

169 Md. 221

HEWITT v. SHIPLEY.

No. 19.

Court of Appeals of Maryland

November 1, 1935

Appeal from Orphans' Court of Baltimore City; Philip L. Sykes William M. Dunn, and Leo J. Cummings, Judges.

Proceedings in the matter of the estate of Mary Betts Shipley, deceased wherein Samuel D. Shipley filed petition for revocation of order granting letters of administration to A. Saville Hewitt, and for the appointment in his stead of Samuel D Shipley as administrator. From an order granting the petition, A. Saville Hewitt, administrator of Mary Betts Shipley, deceased, appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

Michael E. Walsh and D. Eugene Walsh, both of Westminster, for appellant.

Robert F. Leach, Jr., of Baltimore, for appellee.

JOHNSON Judge.

This is an appeal from an order of the orphans' court of Baltimore City passed April 3, 1935, revoking its former action in granting letters of administration to A. Saville Hewitt, brother of Mary Betts Shipley, late of Baltimore City, deceased, upon the estate of the latter and appointing in his stead Samuel D. Shipley, surviving husband of the intestate. This action was taken as a result of a petition filed by the husband, in which he claimed he had received no notice before such letters were granted his brother-in-law, and that he was legally entitled to administer and share in the estate of his deceased wife. The answer of the administrator denied the right of the husband to notice of the granting of letters, and rested its defense upon the proposition that he, the husband, had surrendered all his rights in the estate of his deceased wife by virtue of an agreement of separation between him and her dated October 3, 1910.

It is admitted that no notice was given the husband of the application for letters, that no divorce had ever been obtained by the parties, and that they had never lived together since the date of the separation agreement. At the hearing before the orphans' court, counsel for appellant were offered an opportunity to prove whether or not Mrs. Shipley had been represented by counsel in the preparation of the separation agreement; but no proof was produced. The question presented by the appeal is a narrow one, and its ultimate answer is entirely dependent upon the construction to be given the separation agreement in question, for it is conceded that if the husband had no interest in the estate of his wife, the action of the orphans' court in granting letters to some other person without notice to him is not improper. Code, art. 93, § 33. See, also, Dalrymple v. Gamble, 66 Md. 298, 7 A. 683, 8 A. 468.

The provisions of the separation agreement pertinent to this decision are as follows:

"Second: That the said Samuel D. Shipley will and hereby does hand over to the said Mary I. B. Shipley the sum of six hundred and fifty dollars, and will pay the Court the costs in all divorce proceedings now pending in the Circuit Court for Carroll County in Equity and will relinquish any and all claim or right that he has to a bureau and other articles mentioned and described in schedule filed and return made by Benjamin D. Kemper the Sheriff of Carroll County in the case of Mary I. B. Shipley against Walter Shipley in the Circuit Court for Carroll County; these payments being intended to be and being accepted by the said Mary I. B. Shipley as a fair and just provision for her, considering the means, age and station in life of the said Samuel D. Shipley, the needs and requirements of the said Mary I. B. Shipley, and the facts which caused their separation; which said settlement is made in lieu of all the property rights of the said Mary I. B. Shipley, of every kind, character and description vested, inchoate or anticipated, as wife, widow, heir or next of kin, against the said Samuel D. Shipley or his estate.

Third: That all the wearing apparel and personal ornaments of the said Mary I. B. Shipley, and all movable personal property belonging to her, shall belong to the said Mary I. B. Shipley as her separate estate, independently of the said Samuel D. Shipley. All the property of the said Mary I. B. Shipley, both real and personal, now held by her or which shall hereafter come to her, shall be and remain her sole and separate property, free from all rights of the said Samuel D. Shipley, with full power to her to convey, assign, or deal with the same as if she were single. The said Samuel D. Shipley will, from time to time, execute all such deeds and papers as may be necessary to enable her to sell, assign, or deal with her said property. * * *"

This court has from time to time been called upon to construe such agreements of separation, both prenuptial and postnuptial and, while no two are exactly alike, the general rule in this and other jurisdictions as to both classes seems to be that such an agreement will not be construed to bar the right of a surviving spouse in the estate of...