United States v. CERTAIN PARCELS OF LAND, ETC.

• Decision Date: 28 August 1942
• Docket Number: No. 1401.,1401.
• Citation: 46 F. Supp. 441
• Parties: UNITED STATES v. CERTAIN PARCELS OF LAND IN CITY OF ANNAPOLIS, ANNE ARUNDEL COUNTY, MD.
• Court: U.S. District Court — District of Maryland

46 F. Supp. 441

UNITED STATES v. CERTAIN PARCELS OF LAND IN CITY OF ANNAPOLIS, ANNE ARUNDEL COUNTY, MD.

No. 1401.

District Court, D. Maryland.

August 28, 1942.

Wilmer H. Driver, Sp. Asst. to Atty. Gen., of Baltimore, Md., for the Government.

J. Britain Winter, of Baltimore, Md., for Vaia Lucas.

Basil A. Thomas, of Baltimore, Md., for James Pistolas and Marcus J. Lucas.

CHESNUT, District Judge.

In this federal land condemnation case the question presently arising is whether a wife is entitled to compensation, out of the damages awarded for the taking of her husband's real estate, for destruction of her inchoate right of dower therein.

Although the existence of this question has been implicit in very many of the recent condemnation cases in this court, it has never heretofore been presented for decision because the uniform prior practice has been, in distributing the damages awarded for the taking of the husband's land, and deposited in court by the Government, to make the clerk's check therefor payable to the joint order of the husband and wife, and no question has heretofore arisen between them with respect to the actual disposition of the proceeds of the check.

In the present instance the question arises with respect to parcel 27 included in the above condemnation case. The title to parcel 27 is in James Pistolas and Marcus J. Lucas as tenants in common in fee simple. They are both Greeks who have been naturalized as American citizens. Both are married, the wife of Pistolas living here but the wife of Lucas, Vaia Lucas, is now and has been since 1938 resident in Greece. In this case, as in all prior cases in this court involving condemnation of lands owned by a husband, there is no dispute as to the distribution of the damages between James Pistolas and his wife; but a complication has arisen as between Lucas and his wife who is now in Greece. Before leaving this country Vaia Lucas gave to her husband a very broad power of attorney to act for her in all property matters. In accordance therewith, when this condemnation suit was instituted, he employed counsel to represent her as well as himself in this proceeding, and the attorney filed an answer for them both, without then noting any possible adverse interest between them, which only subsequently came to attention when it was learned that a Treasury Regulation, occasioned by the existing state of war, has been construed to prohibit receipt by the husband of any moneys payable to him as her agent under the power of attorney. Therefore, if the wife is entitled to be individually compensated from the fund now in court, it will be necessary to hold that portion of the fund distributable to her for an indefinite period, as under the regulations it could not now be transmitted to her in Greece. Furthermore, the husband insists he is entitled to have the whole fund distributed to him personally and is in special need thereof because the property belonging to him until taken by the government was used by him in his business of a restaurant keeper, and until he can receive the damages awarded he is financially unable to acquire a new business elsewhere; and he says that he needs the whole of the sum awarded for the taking of his land and property for the acquisition of a new business.

On July 31, 1942 Pistolas and Lucas filed a petition reciting that they had agreed with counsel for the United States that the award for the taking of their land should be the sum of $14,900, and praying that the whole sum should be awarded to them because, as they averred, their respective wives were not entitled to any share of said sum by reason of their inchoate dower. On August 14, 1942, the United States filed an answer admitting that at the time of taking by the United States, title to said land was vested in the petitioners as tenants in common and was subject to no liens, encumbrances, or taxes of any description, and also admitting that the amount of damages had been agreed upon in the amount of $14,900, but, with respect to the request for payment without compensation to the wives of the petitioners, the answer took the position that the question was one of distribution, for the decision of this court, and, the "United States of America, therefore, takes no position as to whether or not the respective wives of James Pistolas and Marcus J. Lucas have an inchoate dower right in the property condemned or whether or not said respective wives, by virtue of said inchoate dower right, are entitled to share in the distribution of the agreed upon sum representing full and just compensation for the taking of the land aforesaid." At the recent hearing on the petition and answer, the court suggested that, as there was an apparent conflict between the interests of Lucas and his wife, she should be represented by independent counsel; and pursuant thereto independent counsel has appeared in the case for the wife and counsel for both parties have submitted carefully prepared briefs in support of their respective contentions.

The particular question now presented has never been expressly decided by the Court of Appeals of Maryland, and in two nisi prius state court decisions the respective judges expressed contrary views on the point. The precise question has, however, been diversely decided in a number of other states, the majority view holding that the wife is not entitled to be compensated for the destruction of her inchoate dower right where lands belonging to the husband have been taken in condemnation proceedings. Both the majority and minority views upon the subject can be found discussed by the leading text writers who in general reflect the majority view. Tiffany, Real Property, 3d ed., § 533; Mills on Eminent Domain, 2d ed., par., 71; Nichols on Eminent Domain, 2d ed., p. 346; Lewis on Eminent Domain, 3d ed., § 522; Scribner on Dower, 2d ed. Vol. I, c. 27, and Vol. 2, c. I. In 28 C.J.S., Dower, § 14(d) the majority view is thus summarized: "Dower exists in the fund resulting from land taken by eminent domain proceeding after death of the husband, but not as to the proceeds of land taken in his lifetime, although inchoate dower therein is sometimes preserved." Flynn v. Flynn, 171 Mass. 312, 50 N.E. 650, 42 L.R.A. 98, 68 Am.St.Rep. 427; Briegel v. Briegel, 307 Pa. 93, 160 A. 581; Long v. Long, 99 Ohio St. 330, 124 N.E. 161, 5 A.L.R. 1343; Salvatore v. Fuscellaro, 53 R.I. 271, 166 A. 26; Caldwell v. City of Ottumwa, 198 Iowa 666, 200 N.W. 336; French v. Lord, 69 Me. 537; Chouteau v. Missouri Pac. Ry. Co., 122 Mo. 375, 22 S.W. 458, are some of the cases which take the majority view, while Wheeler v. Kirtland, 27 N.J.Eq. 534, and In re Cropsey Avenue, 268 N.Y. 183, 197 N.E. 189, 101 A.L.R. 694, are the leading exponents of the minority view. See, also, annotated cases in 5 A.L.R. 1347, and 34 A.L.R. 1021.

The legal philosophy underlying the majority view is succinctly expressed in a note in Vol. 4, Fordham Law Review, 506 — "The majority of cases dealing with the question have reasoned that throughout history public interest has required that dower be extinguished when land is taken by right of eminent domain, and that this is particularly true of inchoate dower since it is, at best, a contingent claim incapable of present valuation. Inasmuch as it does not rise to the dignity of a vested property interest, runs the argument, it is outside the pale of constitutional mandate that property shall not be taken without due process of law." For the other view, the note says: "The minority view preserves the wife's interest by awaiting the happening of the contingency; the majority view destroys it by completely ignoring the possibility of her survivorship. The law which has considered inchoate dower to be an encumbrance affecting the marketability of title, to be good consideration for a promise, to be an interest entitling the wife to follow the surplus moneys of a foreclosure sale, or to redeem from a mortgage, should not find it difficult to impress the wife's inchoate dower on the proceeds of property fortuitiously appropriated to the public use."

An examination of the opposing views reveals much both of law and logic in support of each; but, interesting as the discussion is on principle, the question here presented must be decided on the Maryland statutory and case law so far as the conclusion can be derived therefrom in the absence of an express decision on the point. Ferry v. Spokane, P. & S. R. Co., 258 U.S. 314, 320, 42 S.Ct. 358, 66 L. Ed. 635, 20 A.L.R. 1326; and this irrespective of Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

We must first notice various statutory provisions in Maryland, although they are not conclusive. The Maryland Code (1939) Art. 33A, § 1, provides that in condemnation cases the petition shall be filed "against the owner or owners thereof, and the husbands and wives of married owners." This, however, is only a procedural provision. Article 45, § 6, defines dower as follows: "A widow shall be entitled to dower in lands held by equitable as well as legal title in the husband at any time during the coverture, whether held by him at the time of his death or not, but such right of dower shall not operate to the prejudice of any claim for the purchase money of such lands, or other lien on same." Dower is a common law right of a surviving wife to a life estate in one-third of the inheritable real estate owned by her husband. Prior to the death of the husband the wife's dower interest is said to be inchoate, and after his death it becomes consummate. The Maryland Code, Art. 16, § 48, provides: "In all cases where lands and tenements are to be sold under a decree, and the widow who is entitled to dower in such lands will consent in writing to the sale of the entire estate therein, the court shall order the same to be sold free from any claim of dower, and allow the widow such portion of the net proceeds of sale...