Senk v. Mork, 78

• Decision Date: 04 March 1957
• Docket Number: No. 78,78
• Citation: 212 Md. 413,129 A.2d 675
• Parties: Veronica M. Long SENK, Executrix of the Estate of Margaret D. Long Mork, deceased, v. M. William MORK.
• Court: Maryland Court of Appeals

Page 413

212 Md. 413

129 A.2d 675

Veronica M. Long SENK, Executrix of the Estate of Margaret D. Long Mork, deceased, v. M. William MORK.

No. 78.

Court of Appeals of Maryland.

March 4, 1957.

Arthur J. Hilland, Washington, D. C. (DeWitt S. Hyde, Washington, D. C., and A. Luini del Russo, Wheaton, on the brief), for appellant.

William L. Kahler, Hyattsville, for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

BRUNE, Chief Judge.

The principal question in this case is whether or not a surviving spouse may maintain a contest attacking the validity of the will of the deceased spouse, when the survivor could have taken exactly the same interest by timely renunciation of the will as by striking it down through a successful caveat proceeding. ¹ The time for renunciation has expired.

The testatrix, Margaret D. Long Mork, died on April 20, 1952. She was survived by her husband, the appellee, two sisters, and a nephew and two nieces who are children of a deceased brother of the testatrix. One of the sisters, Mrs. Senk, is the executrix of the will of the testatrix.

The will is dated April 14, 1952. After revoking any prior testamentary instruments and directing the payment of debts and funeral expenses, it devised and bequeathed the testatrix' estate to her husband and sisters in equal shares, and appointed Mrs. Senk as executrix. No gift was made to the children of the deceased brother. They would have shared in the estate in case of intestacy.

The will was admitted to probate by the Orphans' Court for Montgomery County on April 29, 1952, letters testamentary were granted to Mrs. Senk on the same day, and an order for publication of notice to creditors was also filed on that date. Such notice expired about October 30, 1952, we understand. The husband filed a caveat on June 11th and an amended caveat on July 16, 1952. The executrix answered the amended petition on the merits on July 29th, and on January 14, 1953, the Orphans' Court transmitted issues in customary form relating to the due execution and genuineness of the will, the testatrix' knowledge of its contents, fraud, undue influence and mental capacity.

Up to this point, no question appears to have been raised with regard to the husband's right to contest his wife's will. In February, 1956, this question was raised by the executrix on a motion to dismiss the caveat filed in the Circuit Court for Montgomery County and by a somewhat similar petition filed in the Orphans' Court. The Circuit Court entered an order dated February 4, 1956, reciting that it was 'of the opinion that only the Orphans' Court has jurisdiction to decide the question presented by the motion, and [that] the parties, by and through their respective attorneys * * * [have] consented to the removal of the case back to the Orphans' Court for a determination of the question,' and remanding the case accordingly. In the Orphans' Court the executrix' petition to dismiss the husband's petition and caveat was denied and an order was entered on May 31, 1956, directing that the issues be transmitted to the Circuit Court. The appeal is from that order. No question is raised as to its being an appealable order. See Sykes, Contest of Wills in Maryland, § 154, page 199; Little Sisters of the Poor, etc., v. Cushing, 62 Md. 416.

The executrix relies heavily upon Section 325 of Article 93 of the Code 1951, which provides that a surviving husband or widow shall be barred of any rights of dower in land or share in land or any personal property by any devise or bequest contained in the will of the deceased spouse, unless within thirty days after the expiration of notice to creditors the surviving spouse files a written renunciation in substantially the form specified in that Section. This form of renunciation combines both a renunciation of any bequest or devise 'made * * * by the last will and testament of my wife or husband, exhibited and proved according to law;' and an election to take in lieu thereof either dower and legal share of the personal estate of the decedent or to take his or her 'legal share of both the real and personal estate' of the deceased spouse. The concluding paragraph of Section 325 spells out exactly what interest the surviving spouse is to take. If dower is not included in the election, the legal share which the surviving spouse takes is: (a) one-third of the lands, and one-third of the 'surplus personal estate' if the deceased spouse is survived by descendants; or (b) one-half of the lands and one-half of the 'surplus personal estate' if the deceased spouse is not survived by descendants but is survived by a father or mother; or (c) two thousand dollars (or its equivalent in property) and one-half of the residue of the lands and one-half of the 'surplus personal estate' remaining if the deceased spouse is not survived by descendants or a father or mother.

Section 325 of Article 93 is derived from Section 2 of sub-chapter 13 of Chapter 101 of the Acts of 1798, which dealt with the dower and legal share of widows. That statute in turn had its statutory antecedents in Maryland reaching back to the early Eighteenth Century. The widow's rights had an origin in the custom of London which these early statutes recognized. Griffith v. Griffith's Executors, 4 Har. & McH. 101; Coomes v. Clements, 4 Har. & J. 480; Marriott v. Marriott, 175 Md. 567, 3 A.2d 493.

Historically, these legal rights of the widow were not necessarily the same as her rights in case of intestacy and they rested on a different basis. Hokamp v. Hagaman, 36 Md. 511; Marriott v. Marriott, supra. There was only one brief period, from 1922 to 1924, when what is now Section 325 of Article 93 defined the legal share of the widow or of the surviving husband by reference to the intestate laws. Acts of 1922, Chapter 348; Acts of 1924, Chapter 223. In Marriott v. Marriott, supra, it was expressly held that the intestate law as to distribution of the personal estate of a decedent did not apply under what was then Section 311 (now Section 325) of Article 93 to the share which the widow would take.

It is true, however, that by reason of an amendment to Section 325 made after the decision in the Marriott case the widow's share under Section 325 is the same as what it would be under the intestate law, except in the situation described in Section 130 of Article 93, where the deceased spouse leaves surviving neither a child, grandchild, father, mother, brother sister, nor child of a brother or sister. In the situation covered by Section 130, the surviving spouse takes 100% of the decedent's net estate and is not limited to the share stated in Section 325.

Under the present law the interest to which the surviving spouse is entitled upon renunciation and election under Section 325 may not be the same as under the intestate laws, and the time for making an election under Section 325 differs from the time allowed for filing a caveat. The time for filing an election is approximately seven months after probate, subject, under Section 326, to one or more extensions by the Orphans' Court, for good cause shown, for not more than six months on any one extension. The time for filing a caveat is within one year from the date of probate. Thus, in the present case, a renunciation under Section 325 could have been filed up to about November 30, 1952, without any extension of time by the Orphans' Court, and a caveat could have been filed up to April 29, 1953. The time had not expired for either course of action when the amended petition and caveat was filed in July, 1952, nor when (as a result of some prodding by the executrix) the husband filed proposed issues in November, 1952, but it had expired before the order for the transmission of issues was filed.

The executrix relies heavily upon the bar of Section 325. In terms, however, it applies only to the shares of real and personal estate therein specified and does not in terms refer to the shares of real and personal estate which the surviving spouse would take in case of intestacy. The husband contends that the bar of Section 325 is predicated upon a valid will. In this contention, he finds support in Haas v. Haas, 121 Ind.App. 335, 96 N.E.2d 116, 98 N.E.2d 232 (on motion for reargument); Flynn v. McDermott, 183 N.Y. 62, 75 N.E. 931, 2 L.R.A.,N.S., 959; Freeman v. Freeman, 61 W.Va. 682, 57 S.E. 292, 11 Ann.Cas. 1013; and Dexter v. Codman, 148 Mass. 421, 19 N.E. 517.

In this State the precise point has not been decided, so far as we are informed by the briefs or by our own study. It is true that some rather sweeping language has been used in giving effect to a failure to renounce within the time provided by the statute. On the other hand, such cases as Collins v. Carman, 5 Md. 503; Kernan v. Carter, 132 Md. 577, 104 A. 530; Bish v. Bish, 181 Md. 621, 31 A.2d 348, Yungerman v. Yungerman, 165 Md. 609, 170 A. 170, 91 A.L.R. 863, quoted in the Bish case, and Miller on Construction of Wills, page 824, quoted in both the Bish and Yungerman cases, while stating the effect of the present Section 325 of Article 93 in quite positive terms, also speak of the failure to renounce valid gifts within the prescribed time as bringing the statutory bar into operation. Indeed, in Collins v. Carman, supra, after referring to the Act of 1798, Chapter 101, sub-chapter 13 (particularly to Section 2 stating the bar, and Section 5 stating the exception thereto, from which Sections 325 and 329 of the present Article 93 are, respectively, derived), the Court twice italicized the word 'valid' in stating its holding. At page 530 of 5 Md., Judge Eccleston said: 'Every valid devise or bequest is, therefore, made an effectual bar, unless it be removed by a renunciation.' Similarly, 5 Md. on page 531, he went on to say: 'Under this [Act] we conceive that when a man dies leaving a will, making valid gifts of real and personal estate to his wife, she has not, as she had at common...