Marriott v. Marriott

• Decision Date: 10 January 1939
• Docket Number: 53-55.
• Citation: 3 A.2d 493,175 Md. 567
• Parties: MARRIOTT v. MARRIOTT et al. CUSHING et al. v. SAME. GUMBERT v. SAME.
• Court: Maryland Court of Appeals

3 A.2d 493

175 Md. 567

MARRIOTT v. MARRIOTT et al.

CUSHING et al. v. SAME.

GUMBERT v. SAME.

Nos. 53-55.

Court of Appeals of Maryland

January 10, 1939

Appeals from Orphans' Court of Baltimore City; Philip L. Sykes Leo J. Cummings, and Isaac S. Field, Judges.

Petition for a meeting of distributees, by the Safe Deposit & Trust Company of Baltimore, trustee, etc., against Emily Grace Marriott and others. From the order entered by the Orphans' Court, Lucy W. Brady Marriott, Joseph W. Cushing and another, and Joseph J. Gumbert separately appeal.

Affirmed on the first appeal and reversed on the other appeals.

Hall Hammond, of Baltimore, for appellant Lucy Marriott.

Frederick J. Singley, Jr., of Baltimore (Louis J. Burger, of Baltimore on the brief), for appellants Cushing.

Lawrence B. Fenneman, of Baltimore, for appellant Gumbert.

F Howard Smith, of Baltimore, for appellees.

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

MITCHELL Judge.

Telfair W. Marriott, of Baltimore City, died on July 13, 1937, leaving a last will and testament dated February 3, 1932; a codicil thereto, dated November 14, 1932, and a second codicil, dated December 9, 1935; which said will and codicils were duly admitted to probate by the Orphans' Court of Baltimore City, and on July 20, 1937, letters testamentary were granted thereon to the Safe Deposit and Trust Company of Baltimore, executor named in said will.

The testator left real property of the approximate value of $12,000, and personal property sufficient, after the payment of taxes, debts and expenses incident to the administration of the estate, to result in a net personal estate of approximately $20,000, consisting mainly of stocks, bonds and cash.

Mr. Marriott was survived by his widow, Lucy W. Brady Marriott, but left no child, descendant, parent or brother or sister him surviving. He did, however, leave surviving a number of nephews and nieces, all of whom are mentioned in his said will. He made no devise or bequest to his wife, and she claimed her legal share of his estate, including $2,000 allowance, as provided by Sec.

127 of Art. 93 of the Code (1935 Supp.), by timely notice in writing to the executor of the estate.

In response to the petition of the executor for a meeting of distributees, and summons thereunder, Mrs. Marriott filed her answer claiming the $2,000 allowance above indicated, and one-half of the real and personal estate. And Joseph J. Gumbert, who under the second codicil to the will was bequeathed $1,000, and Joseph W. Cushing and Thomas Morris Cushing, the latter two being nephews of the deceased, who under the original will were each bequeathed $500 as pecuniary legatees, also filed answers claiming that there should be no diminution in the respective legacies bequeathed them by the testator, as a result of the allowance to the widow of her statutory and legal share of the estate of the decedent.

In addition to the pecuniary legacies above set forth, the testator bequeathed $50 to James Edward Scott and Anita Scott, his wife; and to such of his nephews and nieces as might survive him, he also specifically bequeathed all of his portraits, jewelry, silverware, books, pictures, furniture and household and personal effects; the same to be divided among them by mutual agreement between said nephews and nieces, with power vested in the executor to make such division in event of their failure to agree. And by the residuary clause of his will, the testator devised and bequeathed his remaining estate, either absolutely, or subject to certain trusts fully detailed in the will, to his nephews, William McKim Marriott and Haskins Neblett Marriott, and his nieces, Emily Grace Marriott and Abbie Marriott Byrnes; the executor of the estate being also designated as trustee in each of the trusts created by the will.

Item 13 of the will contains the following provision: 'I wish to state further that I have made no special bequest to my wife, Lucy W. B. Marriott, because of her present circumstances, and hope and request that she will not demand her dower or any part of my estate, and I do not appoint her my executrix because I desire to relieve her of all details.' In this situation, after a meeting of the distributees of the estate, held in pursuance of the provisions of Sec. 148 of Art. 93 of the Code of Public General Laws of this State, and after testimony was taken and the claims of the respective legatees or distributees were presented and considered, the Orphans' Court of Baltimore City, on June 1, 1938, passed an order directing the distribution of the estate of Mr. Marriott, which with respect to the matters in controversy in this appeal provided as follows:

'1. That Lucy W. Brady Marriott, the widow of said testator, is entitled to one-half of the personal estate of said testator remaining for distribution in addition to the widow's allowance of $75.

'2. That said widow is not entitled to an additional sum of $2,000 under the provisions of Section 127 of Article 93 of said Code (1935 Supp.).

'3. That said widow, by taking her legal share, is a co-owner with each of the legatees named in the will of said testator, without distinction, to the extent of one-half and that each legatee must bear the loss sustained by reason of the widow's insistence upon her legal share without contribution from any of the other legatees.

'4. That in pursuance of the foregoing determination of this Court and in pursuance of the terms of the will of said testator as affected thereby, it is ordered this 1st day of June, 1938, that said executor shall make distribution of the personal estate of said decedent remaining for distribution after the payment of all proper costs, fees, taxes and other expenses incident to the administration of said estate, including said widow's allowance of $75 and the costs and expenses of this proceeding, in the following manner, that is to say:

'(a) Unto Lucy W. Brady Marriott, widow of said testator, one-half thereof, which shall include one-half of the chattels mentioned in the first item of the will of said testator.

'(b) Unto Joseph W. Cushing, Thomas Morris Cushing, Haskins Neblett Marriott, William McKim Marriott, nephews of said testator, and Emilie G. McKim Marriott and Abbie Marriott Byrnes, nieces of said testator, the other half of said chattels mentioned in the first item of the will of said testator.

'(c) Unto Joseph W. Cushing, nephew of said testator, the sum of $250.

'(d) Unto Thomas Morris Cushing, nephew of said testator, the sum of $250.

'(e) Unto Joseph J. Gumbert the sum of $500.

'(f) Unto James Edward Scott the sum of $12.50.

'(g) Unto Anite Scott the sum of $12.50.'

The remaining part of the order being then directed to the manner in which the residuary estate should be distributed.

Three appeals from the aforegoing order are embraced in one record before us, as follows:

(1) That of Mrs. Marriott, directed to that part of the order disallowing the $2,000 claimed by her, as above set forth.

(2) That of Joseph W. Cushing and Thomas Morris Cushing, nephews and specific legatees of the testator, directed to that part of the order which, by reason of the assertion by the widow of her claim, apportions the consequent diminution of the testator's estate among the pecuniary and the residuary legatees alike, and thereby ignores priority to the pecuniary legatees.

(3) And that of Joseph J. Gumbert, pecuniary legatee, based upon the same premise which forms the ground of the appeal of the two pecuniary legatees, mentioned in the next above subparagraph. Accordingly the two latter appeals will be disposed of together.

The first comprehensive system of testamentary law was enacted in this State in 1798, and while various amendments have since been made to certain provisions of the original Act, in so far as the share of a widow in the personal estate of her husband is concerned, the Act of 1798 remained unchanged down to 1933, except that under the provisions of Secs. 317 and 318 of Art. 93 of the present Code of Public General Laws of Maryland, the widow was given a special allowance of $150 or $75, as the case may be, whether the husband died testate or intestate. Other legislation, however, has enlarged her rights in real property of her deceased husband, still reserving to her the right of dower, upon her election as provided by the Act.

Under the Act as originally passed, in all cases of intestacy in which the deceased husband was not survived by child, parent, grandchild, brother or sister, or the child of a brother or sister, the widow was entitled to the whole of the personal estate, after the payment of all proper debts and charges. Code, Sec. 125, Art. 93. In event, however, the intestate husband was survived by a child or children, or a descendant or descendants from a child, the widow's share of the personal estate was limited to one-third. Sec. 126, Art. 93. And in event the intestate husband was not survived by a child or descendant, but was survived by either father, mother, brother, sister, or child of a brother or sister, the widow's share of the personal estate was limited to one-half. Sec. 127, Art. 93.

While the Act of 1898, Chap. 331, conversely made the aforegoing corresponding provisions of the Code of 1888 applicable to the rights of a surviving husband in the estate of his intestate wife, it did not otherwise amend the said provisions. And such was the law of this State with reference to the rights of a widow in the personal estate of her husband, until the passage of Chap. 386 of the Acts of 1933 which repealed and re-enacted Sec. 127, above mentioned, so as to read as follows: 'If there be a surviving husband or a...