Longerbeam v. Iser

• Decision Date: 10 June 1930
• Docket Number: 33.
• Citation: Longerbeam v. Iser, 159 Md. 244, 150 A. 793 (Md. 1930)
• Parties: LONGERBEAM v. ISER ET AL.
• Court: Maryland Court of Appeals

150 A. 793

159 Md. 244

LONGERBEAM v. ISER ET AL.

No. 33.

Court of Appeals of Maryland

June 10, 1930

Appeal from Orphans' Court, Allegany County; John Scott, Sr. John J. Price, and Fuller Barnard, Judges.

Action by Charles Longerbeam, executor of the last will and testament of George H. Longerbeam, deceased, against Charles T. Iser and others. From an order of the orphans' court relative to distribution, the executor appeals.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Charles G. Watson, of Frostburg, for appellant.

Horace P. Whitworth, of Westernport, for appellees.

URNER J.

There are two questions presented by this appeal:

(1) Had the orphans' court jurisdiction to determine whether a legacy in lieu of dower bequeathed to a wife by the will of her husband, who survived her, was saved from lapsing, and vested in her next of kin, by virtue of section 335 of article 93 of the Code?

(2) If the orphans' court had the requisite jurisdiction, did it correctly decide that the legacy did not lapse but was distributable to the legatee's next of kin under the Code provision just cited?

The bequest is contained in the will of George H. Longerbeam, of Allegany county, and is in the following form: "Out of the proceeds of the sale of said real estate, I bequeath to my wife Alice Longerbeam, the sum of Two Thousand Dollars in cash, which said sum I direct my executor to pay to my said wife out of the first moneys he shall receive from the sale of said real estate. Said sum of Two Thousand Dollars will be in lieu and in full of any dower rights which my said wife might have in both my real and personal estate."

The will was executed in 1914, and the testator's wife died in 1918, while his death did not occur until 1929.

It is provided by article 93, § 335, of the Code: "No devise legacy or bequest shall lapse or fail of taking effect by reason of the death of any devisee or legatee (actually and specially named as devisee or legatee, or who is or shall be mentioned, described, or in any manner referred to, or designated or identified as devisee or legatee in any will testament or codicil) in the lifetime of the testator, but every such devise, legacy or bequest shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator."

Under that section, when applicable, a legacy to one who died in the testator's lifetime passes to the legatee's next of kin living at the time of the testator's death. Courtenay v. Courtenay, 138 Md. 204, 113 A. 717; McComas v. Wiley, 134 Md. 572, 108 A. 196; McLaughlin v. McGee, 131 Md. 156, 101 A. 682; Hemsley v. Hollingsworth, 119 Md. 440, 87 A. 506; Vogel v. Turnt, 110 Md. 199, 72 A. 661; Wallace v. Du Bois, 65 Md. 161, 4 A. 402. But the executor of Mr. Longerbeam's will disputed the right of the deceased wife's next of kin to the legacy in question upon the theory that the bequest, being in lieu of dower, indicated an intention on the part of the testator that his wife was to receive the bequeathed sum only in the event that she survived him, since the dower interest for which the legacy would be substituted was contingent upon her survivorship. The jurisdiction of the orphans' court to determine such a question was denied by the executor upon the ground that it involved a construction of the will, and that it was necessary to resort to a court of equity for that purpose. The orphans' court overruled the objection to its jurisdiction and decided in favor of the next of kin's claim to the legacy, and the appeal is from the order giving effect to those conclusions.

In the recent case of Collins v. Cambridge Maryland Hospital (Md. Oct. term, 1929) 148 A. 114, 115, it was said in the opinion delivered by Chief Judge Bond "While it is true that no power has been conferred upon orphans' courts, in terms, to construe wills, and they have been forbidden by statute to exercise under pretext of incidental power or constructive authority any jurisdiction not expressly conferred by law (Code, art. 93, § 271), it has been recognized by this court that construction of wills is sometimes involved in the exercise of powers expressly conferred." In that case the orphans' court was held to have jurisdiction to determine whether certain corporations claiming the right to intervene as legatees in opposition to a caveat against the will were the institutions to which the will intended to refer. This court had previously declined to adopt the view that orphans' courts had no authority to construe wills, and had recognized the existence of such jurisdiction as incident to the supervision and control of accounting by executors with respect to the payment of legacies to the persons...