Mack v. Pairo

• Decision Date: 20 February 1920
• Docket Number: 39.
• Citation: 110 A. 198,136 Md. 179
• Parties: MACK et al. v. PAIRO.
• Court: Maryland Court of Appeals

110 A. 198

136 Md. 179

MACK et al. v. PAIRO.

No. 39.

Court of Appeals of Maryland

February 20, 1920

Appeal from Orphans' Court of Baltimore City.

"To be officially reported."

Petition of Isaac Mack, administrator, under Code Pub. Gen. Laws, art 93, § 143. From adverse decision thereon said Mack and two sisters, brother and sisters of deceased, appeal, William Harry Pairo, assignee of Thomas W. Thompson, husband of deceased, being the appellee. Appeal dismissed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and ADKINS, JJ.

Mark O Shriver, Jr., and Harry M. Benzinger, both of Baltimore, for appellants.

William Harry Pairo, of Baltimore, for appellee.

The following opinion of BURKE, J., was adopted by court after his resignation.

Ella M Thompson, colored, the wife of Thomas W. Thompson, died in the city of Baltimore on the 22d day of April, 1919. She left surviving her as her only heirs and next of kin her husband and two sisters; Kate Mack Washington, Annie Roeback, and Isaac Mack, a brother. Letters of administration upon her estate were granted to her brother by the orphans' court of Baltimore city. Upon the petition of the administrator the orphans' court, under section 143 of article 93 of the Code, designated the 16th day of December, 1919, for a meeting of the distributees of the estate. The petition stated that questions had arisen as to the persons entitled to distribution in the estate, and that the petitioner was unwilling to proceed with the distribution, except under the direction of the court.

The fourth paragraph of the petition is as follows:

"That your petitioner states that the persons entitled to shares in the said estate are Kate Mack Washington and Annie Roeback, sisters of said decedent, an absconding husband known as Thomas W. Thompson, and your petitioner, who is a brother of the decedent."

All the parties appeared on the appointed day, and testimony was adduced by the petitioner tending to show that the husband Thomas W. Thompson, had left his wife a number of years prior to her death, and had been living in adultery with a woman whose name is not disclosed by the record. The contention of the petitioner is that these facts, if proved, deprived him of distribution in his wife's estate. This contention rests upon the St. 13 Edward I, c. 34, which is as follows:

"And if a wife willingly leave her husband, and go away, and continue with her advouterer, she shall be barred for ever of action to demand her Dower, that she ought to have of her Husband's Lands, if she be convict thereupon, except that her Husband willingly, and without Coertion of the Church, reconcile her, and suffer her to dwell with him; in which case she shall be restored to her Action."

If it be granted that this statute is in force in Maryland, and is, under the rules of interpretation stated in article 1 of the Code, applicable to the husband as well as the wife, the record does not show that the wife died seized of any property to which it could apply. In Thomas on Coke on Littleton, vol. 1, p. 569, it is said:

"Tenant in dower is, where a man is seized of certain lands or tenements in fee

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