Hokamp v. Hagaman

• Decision Date: 20 June 1872
• Parties: JOSEPH G. HOKAMP, Executor of CONRAD HAGAMAN, v. MARGARET HAGAMAN. MARGARET HAGAMAN v. JOSEPH G. HOKAMP, Executor of CONRAD HAGAMAN.
• Court: Maryland Court of Appeals

36 Md. 511

JOSEPH G. HOKAMP, Executor of CONRAD HAGAMAN, v. MARGARET HAGAMAN.

MARGARET HAGAMAN v. JOSEPH G. HOKAMP, Executor of CONRAD HAGAMAN.

Court of Appeals of Maryland

June 20, 1872

The cause was argued before BARTOL, C.J., STEWART, BOWIE, GRASON MILLER and ALVEY, J.

John H. B. Latrobe, Jr., and John S. Tyson for Joseph G. Hokamp, Executor.

The Orphans' Court has no jurisdiction to decide the validity or invalidity of the bequests under a will. State, use of Trustees of M. E. Church vs. Warren, et al., 28 Md., 355; Schull vs. Murray, &c., 32 Md., 15.

There can be no doubt of the authority of the Circuit Court to pass such a decree by consent of parties--(Rogers vs Rogers, 4 Paige, 516; Daggett vs. Daggett, 5 Paige, 509,) unless expressly prohibited by statute. Russell vs. Russell, 1 Smith (Indiana,) Rep. 356.

Whether right or wrong, it is conclusive until reversed on appeal. Beall vs. Pearre, Adm'r, 12 Md., 550; Bolgiano vs. Cooke, et al., 19 Md., 375; Groshon vs. Thomas, 20 Md., 234. And having been passed by consent of parties filed in the cause, it is not subject to appeal. Williams vs. Williams, 7 Gill, 304.

If not as a decree, it was as an agreement, binding on the parties. As to the effect of agreements to bar marital rights, see Ward, et ux. vs. Thompson, 6 G. & J., 349; Maurer vs. Naill 5 Md., 326; Edelen vs. Edelen, 11 Md., 422. A wife is bound by her acceptance of a deed from her husband after marriage, the condition of which deed was, that she should make no claim to any part of his estate. Hutchins, et al. vs. Dixon, Ex'r, 11 Md., 30.

The claimant relies, however, chiefly on the re-cohabitation subsequently to the decree; that fact being presumed, in some way, to have annulled the decree. The effect of a decree of divorce a mensa et thoro, is to separate the parties until they shall be reconciled to each other. Their re-cohabitation by mutual consent, is therefore in entire accordance with, and not in contravention of the decree.

As the separation did not per se, deprive the wife of her legal rights in her husband's estate, neither could the putting an end to that separation, restore those rights. A decree alone can annul a decree.

The $1,676 having been paid, the effect of that payment was not, in any manner, made dependent on the continuance of the separation.

If there had been no divorce, the widow would only be entitled to her reasonable part of the testator's personal estate, viz: her thirds.

Charles Beasten, Jr., for Margaret Hagaman.

Two questions are raised by the record in this case:

First. What was the effect of the divorce a mensa et thoro and the subsequent reconciliation? Such a species of divorce authorizes the parties to live apart until they mutually come together; the marriage remains in full force, though they are authorized to live separate; and in coming together, no new marriage is required, " nor are any new proceedings in Court necessary, but the reconciliation of its own force annuls the separation." 2 Bishop on Marriage and Divorce, secs. 228, 726, 727, 728, 729; Dean vs. Richmond, 5 Pick., 461; Page vs. Estes, 19 Pick., 269; Kriger vs. Day, 2 Pick., 317; Clark vs. Clark, 6 Watts & Ser., 88.

What is the legislative provision on the subject in Maryland?

The power of the Court to pass any decree with reference to property in suits for divorce a mensa et thoro, is derived from the Act of 1841, ch. 262. Code, Art. 16, sec. 26. Before this provision, the wife was compelled to bring a special action for alimony upon a divorce being granted by legislative enactment, or under certain other circumstances, as abandonment or maltreatment.

The decree in this case, taken as a whole, in ordering the payment to the wife, must have regarded such payment in the nature of alimony. In Crane vs. Meginnis, 1 G. & J., 474, the Court says that "alimony is treated as a consequence drawn from the divorce a mensa et thoro." See, also Dun nock vs. Dunnock, 3 Md. Ch. Dec., 143; Brown vs. Brown, 5 Gill, 249.

The object of a bill for a divorce a mensa et thoro, is certainly not for the purpose of barring dower or compounding tenancy by the curtesy, and the Court must decree according to the allegations of the bill. Ringgold vs. Ringgold, 1 H. & G., 11.

The first admission of the answer under oath, "that Margaret Hagaman is the widow of Conrad Hagaman," is in accordance with the facts, and notwithstanding the divorce a mensa et thoro, even had it remained unrevoked, is supported by the authorities. She is his widow still, and entitled to her legal share. Davies' Case, 2 Curteis, 628, 7 Ecclesialstical Rep., 233; Nusz vs. Grove, 27 Md., 401.

A decree of this nature, undertaking to go further and release dower, would not then be binding, even if the wife outlived the husband in a state of separation with the decree in full force. The only possibility of its being sustained, would be in regarding it in the light of alimony, which would cease, as in this case, at the moment of reconciliation. Wallingsford vs. Wallingsford, 6 H. & J., 485.

If the language of the decree was simply a provision in the nature of alimony under the statute, terminating with reconciliation, or if the pecuniary provision for the wife was an incident to the decree as decided in Crane vs. Meginnis, and Dunnock vs. Dunnock, and falling with it, then the widow is entitled to her legal share.

If on the other hand, the Circuit Court of Howard County, in granting the divorce a mensa et thoro, undertook to do more than the statute provides, and to bar the widow's dower and legal share, then she is entitled still, for the decree is void and binds no one. Dean vs. Richmond, 5 Pick., 461.

And further, it is founded upon "an agreement of counsel, and assented to by the parties," and all, attorneys and principals, were incapable of entering into any such arrangement under the Maryland decisions. Wallingsford vs. Wallingsford, 6 H. & J., 490; Nusz vs. Grove, 27 Md., 401.

Notwithstanding the agreement, it does not deprive the wife of her legal share under the statute of distribution. Slatter vs. Slatter, 1 Young & Coll, (Ex. R.) 28; Stamper vs. Barker, 5 Maddock's Ch. R., 104; Note to Purdew vs. Jackson, 1 Russ. Ch., R., 70.

And which ever view be taken of the decree, it was annulled by the reconciliation.

Secondly. To what share then, of the estate of the deceased is the widow entitled? There was no bequest to her; there was nothing for her to renounce; it is a case of intestacy with respect to the widow, and she is entitled to her legal share under the statute of distribution.

In cases like these, Courts have always sought to establish some uniform rule by which to determine the widow's reasonable part. And the Maryland decisions have fixed an invariable standard, where husbands have undertaken by will to deprive widows of their legal share, by regarding them in every instance as intestates with respect to the widow's share; and they have determined that the reasonable part in such cases is determined by the statute of distribution, as in cases of intestacy. Griffith vs. Griffith's Exr's, 4 H. & McH. 101; Coomes vs. Clements, 4 H. & J., 480; Duvall vs. The Farmers' Bank, 4 G. & J., 282; Collins vs. Carman, 5 Md., 503.

And that the husband cannot deprive by will, his widow of her legal share, is a well established principle, also recognized in Hays vs. Henry, 1 Md. Ch. Dec., 337; Dunnock vs. Dunnock, 3 Md. Ch. Dec., 140; William vs. Kelly, 5 H. & J., 59; State, use of Gaither vs. Gaither, 11 G. & J., 160; Dugan vs. Hollins, 11 Md., 42.

The decree of divorce a mensa et thoro, and the clause referring to the property, a mere incident thereto, was wiped out by the reconciliation, when the parties stood in the same relation as regards both person and property, as if they had never been married until that moment, or as if the proceedings for divorce a mensa et thoro, had never been instituted. And the same course of reasoning, which in the above cases gave to the widow one-third, or one-half as it so happened, would in this case give her the whole; the provisions of the statute of distribution authorizing such an order being fulfilled.

STEWART J., delivered the opinion of the Court.

Conrad and Margaret Hagaman were duly married, and lived together as husband and wife for a long time.

In June, 1867, a decree was passed by the Circuit Court for Howard county, divorcing them a mensa et thoro; and it was further decreed, in accordance with an agreement of the parties, through their solicitors, that Hagaman pay to his wife the sum of $1,676, in full of all arrears for counsel fees and alimony, which shall also free him from any obligation to contribute to her support in the future, and release all claims of his...