Bish v. Bish , 181 Md. 621 ( 1943 )

A resident of Pennsylvania died, leaving a widow (his second wife), and children and grandchildren. By his will, admitted to probate in Pennsylvania and Maryland, he gave his widow his property along the State Highway in Pennsylvania for her life, and he also gave her the income from $3,000 for her life. At her death the real estate in Pennsylvania so devised, is to be sold, and the proceeds divided among his children. He also owned real estate in Carroll County, but no mention is made of this property in his will, nor is there any residuary clause in the will. As to the Maryland property, therefore, there is a partial intestacy.

The widow filed her election to take under the will in Pennsylvania, but subsequently, at her request, this was cancelled and she was permitted by the Orphans' Court there to elect to take against the will. She filed no renunciation of the devise and bequest left her in the will in the Orphans' Court of Carroll County, Maryland, where ancillary letters were taken out by the executor. The election or renunciation she filed in Pennsylvania was not in the form required by the Maryland statute, nor was it filed in the time required.

This cause commenced with the filing of a bill for sale in lieu of partition by the widow in the Circuit Court for Carroll County in equity, against the heirs of her husband, under the Maryland inheritance law, who were also the devisees and legatees under the will. The theory of the bill is that the will is not in force in Maryland, and that the widow is therefore entitled to a one-third interest in the Carroll County real estate. By agreement, this property was sold by trustees appointed, and the proceeds of $4,830 are now held by them to be disposed of in accordance with the final decree of the court.

The court passed a decree holding that the will was in effect in Maryland, and directing testimony to be taken to determine the financial effect in Pennsylvania of the widow's renunciation there. This was ordered done so that the court could compensate the beneficiaries under the will for any inequality resulting from the widow taking against the will in Pennsylvania and under the will in Maryland. This is not a final decree, but it determines rights of the parties and orders an account, so it is properly reviewable here.

All of the members of this court, participating in the case, agree that the court below was correct in his decision that the will is in effect in Maryland, and that the election to take against the will in Pennsylvania does not constitute a renunciation under the Maryland law. The result of this is necessarily that the appellant has no standing here as the widow of an intestate. She is before us as a devisee and a legatee in a will, and as such cannot claim any dower or statutory share in the Carroll County land, even if there is a partial intestacy as to that. She is treated here, so far as her interest in Maryland real estate is concerned, as if she were taking under the will. Durham v.Rhodes, 23 Md. 233.

The majority of the court, however, agree with the remainder of the decree of the court below by which testimony and accounting is ordered. Such testimony and accounting is required, according to their opinion, because the land in Carroll County is "charged with the payment of the life estate for the benefit of the wife." As a result, rights of the widow and of the other beneficiaries are to be thrown into a kind of hodge-podge, from which the court is to extract what is deemed by it to be fair to each. This is a dangerous extension of the doctrine of equitable compensation. The effect of the application of such a theory in this case, if it has any effect at all, is to benefit the widow and not the other beneficiaries under the will. The doctrine has formerly been applied only for the benefit of those whose interest may suffer by reason of the election of the widow. Mercantile TrustCo. v. Schloss, 165 Md. 18, 166 A. 599; Marriott v. Marriott,175 Md. 567, 3 A.2d 493.

The widow has elected not to take under the will. Her election is no less binding on her because she only made it in one jurisdiction. It does not give her dower or statutory rights in real estate in Maryland, because she neglected to make it in time or in proper form here. Nevertheless, it is her election by means of which she acquired rights in Pennsylvania, and by means of which the rights of other beneficiaries are affected. It might not be unreasonable to presume that her election was to her benefit, and to the consequent deprivation of the others. That is beside the point. She had the choice. She made it. The other beneficiaries could do nothing about it. She could have made the same choice here. She did not probably because she was not adequately advised. Her reason is also beside the point, because the same result would be reached if she deliberately failed to renounce here. That result is that she takes against the will in Pennsylvania, but cannot take against it in Maryland.

Can she take against the will in Pennsylvania and under the will in Maryland? The majority opinion is that she does. Yet this court has said flatly: "Appellant cannot, at the same time, take under and against the will." McGhee v. McGhee, 152 Md. 661,136 A. 905, 908. The law of estoppel by election operates against her.

This doctrine is based upon the equitable ground that no one can be permitted to claim inconsistent rights with regard to the same subject. In one of the latest cases decided in Missouri in 1936, this rule is stated as follows: "But, when she renounces the will in the State of her residence, where its validity is established by probate, she renounces it in toto everywhere and cannot take testamentary benefits under it anywhere." Colvin v.Hutchison, 338 Mo. 576, 92 S.W.2d 667, 670, 105 A.L.R. 266. This case is annotated in 105 A.L.R., page 271, and many cases from other jurisdictions are cited on page 283, under the heading "Election to Take Against Will." In addition to these cases there are two cases in Minnesota which discuss the theory further. One of these is In re Estate of Washburn, 32 Minn. 336, 20 N.W. 324, decided in 1884. The other is In re McAllister's Estate,135 Minn. 357, 160 N.W. 1016, L.R.A. 1917C, 504, decided in 1917. In the later case a resident of Iowa died testate owning not only property in the State of his domicile, but also real estate in Minnesota. The widow elected to take under the will in Iowa. Under the Minnesota law the deceased died intestate as to the land in that State, and under that law the widow would take all. The widow did not file any election in Minnesota, but the question was whether her rights under the Minnesota statute were affected by her election in Iowa. The court said there was no conflict in the cases elsewhere, and that the widow was estopped by her election in Iowa to share in the Minnesota property.

It is no answer to say that the appellant does not claim under the will in Maryland. She could not claim, yet the majority of the court give her rights against her claim, which they could not give her were she to claim them. It is difficult to frame any reasoning which would justify such a result.

Whether or not this widow has received in Pennsylvania more or less than the commuted value of her life interest in a $3,000 fund (which is what we understand the majority wish to have ascertained by testimony) we feel that she is estopped by her own actions from either claiming or receiving any part of the proceeds of sale. If she has received more, she is entitled to it by the Pennsylvania law, and as we have previously said, the other beneficiaries and heirs can do nothing about it. If she has received less, it results from her own action. The other parties interested have to abide by her decisions. Why should they be now called on to help her, if her bargain was not as good as it appeared, or if she failed by reason of her own neglect to get all she might have had? She must stand or fall by her own election.

The result of these views is that we think the decree should be reversed, and the case remanded to the end that the net proceeds in the hands of the trustees may be properly divided among those entitled under the intestate laws of the State, eliminating the appellant from all share therein.

Judges DELAPLAINE and GRASON authorize their concurrence in this opinion and conclusion.