Yungerman v. Yungerman

• Decision Date: 11 January 1934
• Docket Number: 65.
• Parties: YUNGERMAN ET AL. v. YUNGERMAN.
• Court: Maryland Court of Appeals

170 A. 170

165 Md. 609

YUNGERMAN ET AL. v. YUNGERMAN.

No. 65.

Court of Appeals of Maryland

January 11, 1934

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

Suit by Rose M. Yungerman, widow and executrix of John Yungerman deceased, against Justus Yungerman and others. From a decree for complainant, defendants appeal.

Reversed and remanded with directions.

Argued before BOND, C.J., and URNER, DIGGES, PARKE, and SLOAN, JJ.

William A. Gunter and W. Earle Cobey, both of Cumberland, for appellants.

John Wagaman, of Hagerstown, for appellee.

BOND Chief Judge.

The appellants contend that there was error in an allowance to the appellee of a widow's rights in lands of her deceased husband, notwithstanding an absence of any renunciation by her of a provision in his will that the proceeds of a sale of all his real estate, together with all the personal estate should be held in trust to pay her the income, and principal, if necessary, for her support, during her life or until remarriage. The court below agreed with a contention of the appellee that the provisions for conversion of the real estate by the sale and trust in the proceeds rendered the gift in the will one of personalty only, and that failure to renounce that gift did not interfere with the widow's taking her rights in the realty.

John Yungerman, of Hagerstown, died leaving a widow, but no parents, children, or descendants, and his will, after bequests of personal belongings and money to his wife, and after eight other bequests of money, directed his executor to convert the real estate into cash, gave the widow the right of disposing of the real estate within a year, and provided for the trust of the proceeds and of all personalty as stated. From the principal remaining at the death or remarriage of the widow, a bequest was made, contingently, to a church, and all the rest and residue of the estate was left to the heirs at law. Two executors were named, the widow and another. The inconsistency between the earlier bequests mentioned and the gift of all property in trust led the widow alone, both as widow and as executrix, to apply to the circuit court in equity for instructions, and in her bill, while consenting to the sale of the real estate, she asserted the right to a widow's one-half interest in the proceeds. The bill was filed a year after the grant of letters testamentary. The other parties in interest answered, opposing the claim, and the appeal is taken by them from a decree allowing it.

The statutes of the state provide that "every devise of land or any estate therein, or bequest of personal estate to the wife of the testator shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will," and that the bar shall become effective by the wife's failure to file a written renunciation within six months of the grant of letters testamentary. Code, article 93, §§ 310 and 311. If the will "devise a part of both real and personal estate, she shall renounce the whole or be otherwise barred of her right to both real and personal estate," and if it "devise only a part of the real estate, or only a part of the personal estate, it shall bar her of only the real or personal estate, or both, as the case may require." Sections 312 and 313. Acceptance of a devise or bequest is not required to bar a widow's rights outside the will; absence of renunciation is alone sufficient to bar them. Only by positive renunciation within the time limited can the bar be avoided. "The law makes failure to renounce, whether voluntary or not, an acceptance of the devise. In legal contemplation a widow who does not renounce the valid gifts made to her by the will does accept or abide by them." Miller, Construction of Wills, 824. Therefore the appellee, having failed to file any renunciation within the time limited, must be barred of rights in opposition to the will if property such as she seeks has been devised to her; and that is the one question presented: whether in the face of the direction for conversion of the real property before it is applied to the benefit of the widow under the trust, it can be said that real property was devised within the meaning and purposes of these statutory provisions. A devise in trust has been treated as the equivalent of a devise of the legal title directly to the wife, within the principles to be applied. Kernan v. Carter, 132 Md. 577, 104 A. 530; Darrington v. Rogers, 1 Gill, 403, 410; Collins v. Carman, 5 Md. 503, 524; Miller, Construction of Wills, 832. But the court seems never before to have been required to consider the precise situation presented in this case. The testator here did by his will make provision for his widow out of his real estate, and out of all his real estate, omitting none from which dower or a widow's portion might be subtracted; and in the opinion of this court that fact is decisive of the case, and the widow has no claim to rights against the will, because the statutes take as the basis of construction of the testator's intention, and of the requirement of election, the testator's appropriation to the widow's benefit of his property of the one kind or the other as he had it, and not the form in which the benefits are ultimately to reach the widow under this arrangement.

These statutes, and the principles in modification and furtherance of which they have been enacted, are designed to prevent an inconsistency in a widow's taking what, for brevity, may still be termed dower rights, or rights independent of the husband's will, and taking also gifts he has made by the will to take the place of those dower rights. Gifts...