Schildt v. Schildt, 34

• Decision Date: 11 November 1952
• Docket Number: No. 34,34
• Parties: SCHILDT v. SCHILDT et al.
• Court: Maryland Court of Appeals

Page 10

201 Md. 10

92 A.2d 367

SCHILDT v. SCHILDT et al.

No. 34.

Court of Appeals of Maryland.

Nov. 11, 1952.

W. Clinton McSherry and James McSherry, both of Frederick, for appellant.

William M. Storm and Parsons Newman, both of Frederick, for appellees.

Before MARKELL, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment for defendant, appellee, rendered by the trial judge, without a jury.

Elmer P. Schildt died on February 5, 1949, survived by his widow, Rhoda E. Schildt and a brother, Elvin R. Schildt. He left a will dated November 21, 1934, the pertinent parts of which follow:

'I. I desire that my just debts and funeral expenses shall be fully paid.

'II. I bequeath unto my dear wife, Rhoda E. Schildt, my one-half interest in the cattle, chickens and farm crops, held jointly with my brother Elvin R. Schildt. I bequeath unto my dear wife, Rhoda E. Schildt, one-half interest in my farm, situated in Creagerstown District, Frederick County, Maryland, with the privilege of purchasing the remaining one-half interest in my farm for $2500.00, this amount to be paid to my brother Elvin R. Schildt, within one year from the date of my death.

'III. I bequeath unto my brother, Elvin R. Schildt, one-half interest in my farm, situated in Creagerstown District, Frederick County, Maryland, with the understanding that my wife, Rhoda E. Schildt has the privilege to purchase his one-half interest in said farm, for $2500.00 within one year from date of my death.

'IV. Should my wife, Rhoda E. Schildt, not elect to purchase one-half of my farm aforementioned for the sum of $2500.00, then in that event the farm is to be sold, at public sale, not later than fifteen months after the date of my death, then the proceeds divided share and share alike between my wife, Rhoda E. Schildt and my brother, Elvin R. Schildt.

'V. In case of the death of my wife, Rhoda E. Schildt, prior to my death, then I bequeath unto my brother, Elvin R. Schildt the amount of my Estate my wife would have received upon the payment of the following; to each of my surviving brothers the sum of Twenty Five Dollars, and to my surviving sister One Hundred Dollars.

'VI. I hereby constitute and appoint my dear wife Rhoda E. Schildt as my sole Executrix with full power to sell, assign, transfer, or anything else necessary to the settling of my estate.'

The inventory of the real estate filed on March 2nd, 1949, consisted of a sixty-six acre farm, improved with a ten room frame farm dwelling house, barn and outbuildings appraised at $8,500.00. About March 9, 1949 the wife filed her election to purchase the half interest of Elvin R. Schildt in the farm for $2,500.00, which privilege was given her in the second paragraph of her husband's will aforesaid.

On February 11, 1950, the appellant, Elvin R. Schildt, filed a declaration against Rhoda E. Schildt as Executrix of the Last Will and Testament of Elmer P. Schildt deceased, and against Rhoda E. Schildt, individually, under the common counts and two special counts. The special counts, for the purposes of this case, alleged that at the time of Elmer P. Schildt's death, he, Elvin R. Schildt, was the joint owner with him of 46 steers and a quantity of hay on said farm. All claim for the hay having been abandoned by the appellant we will make no further reference to it. The special counts further alleged that the appellee had sold the said steers for the sum of $10,875.00 and an additional amount unknown to the plaintiff, and had refused to pay to the plaintiff on half of the proceeds of said sales. It was further alleged that Elmer P. Schildt and Elvin R. Schildt had a contract between them for the business of feeding and fattening steers for market, each owning a one-half interest in 46 steers at the time of the death of Elmer P. Schildt. Filed with the declaration was a copy of the will. A general issue plea was filed by the appellee.

At the trial of the case, the only witness produced was Mr. Harry D. Radcliff, Register of Wills for Frederick County, who identified the Will, Inventory of Real Estate, Appointment of the Executrix, Record of the Estate Docket, Claims filed, and the Election of Rhoda E. Schildt to purchase the one-half interest in the farm for $2,500.00. These papers were admitted in evidence. In answer to the request for admission of facts under the discovery rule, the defendant admitted the following facts: '1. That at the date of the death of Elmer P. Schildt, which occurred on the 5th of February, 1949, there were forty-six head of cattle owned by the said Elmer P. Schildt and Rhoda E. Schildt, his wife, which were on the farm owned by the said Elmer P. Schildt in Creagerstown District, Frederick County, Maryland. 2. That the said forty-six head of cattle were sold by the Defendant herein, Rhoda E. Schildt, after the death of her said husband, Elmer P. Schildt. to Herman Rabbitt, of Montgomery County, Maryland, for the sum of $10,875.00. 3. That no part or portion of the proceeds of sale of said forty-six head of cattle has been paid to Elvin P. Schildt, the Plaintiff herein.' No other evidence was offered. The trial judge, upon motion, directed a verdict for the defendant and from the judgment entered on that verdict the appellant appeals.

The appellant here contends that a beneficiary cannot take a benefit under the will and at the same time repudiate a provision, which is against her interest in the same paragraph of the same will and cites as authority Miller on Construction of Wills, Section 333; Fisher v. Boyce, 81 Md. 46, 52, 53, 31 A. 707; Kuykendall v. Devecmon, 78 Md. 537, 540, 28 A. 412; Myers v. Kooke, 146 Md. 471, 474, 126 A. 710; Safe Deposit & Trust Co. v. Hanna, 159 Md. 452, 460, 150 A. 870. He also contends that an executrix cannot lawfully act as such without fully and completely administering her decedent's estate and without giving full effect to every provision of her testator's last will and testament and relies...