Barrett v. Clark , 189 Md. 116 ( 1947 )

Arthur G. Barrett, husband of appellant, died August 21, 1946, testate. By his will he left appellant one-sixth of his estate. The other five-sixths were left to his daughter and granddaughter, his descendants by a first wife.

There has been on record in the Superior Court of Baltimore City since November 1, 1944, what on its face appears to be an ante-nuptial agreement between the appellant (then Elizabeth Lubore) and Arthur G. Barrett. In this paper it is stated that the parties are about to be married and each agree to waive all dower and inheritance rights in the property of the other. This agreement is dated June 8, 1944, and is acknowledged the same day. The parties were married June 2, 1944.

On March 31, 1947, appellant filed her bill of complaint in the Circuit Court of Baltimore City, alleging that this agreement was obtained by fraud, that she signed it after her marriage, that she did not know the nature of its provisions, and did not find out about it until after the death of her husband. She asked that it be declared null and void and vacated and set aside.

On April 10, 1947, appellant filed a petition in the Orphans' Court of Baltimore City, where her husband's estate was being administered. In this petition she states that the inventory filed by the executors shows a total personal estate of $294,697.12. She further alleges that notice to creditors in the estate expired on March 27, 1947, and that under Section 314 of Article 93 of the Code she will be barred of her legal share in the real and personal estate of her husband unless, within thirty days after the expiration of the notice to creditors, she delivers to the court or the Register of Wills a written renunciation of the will of her husband. She says that since the death of her husband, she has been represented by a member of the New York City bar who has been in communication with the executors and the other legatees named in the will in an effort to effectuate a settlement of her legal rights without litigation. These negotiations failed, her New York counsel became ill and has not yet recovered, and she first consulted with her present counsel in Baltimore on February 28, 1947. She is advised that she cannot obtain a final adjudication of the issues raised in her bill of complaint within thirty days after March 27, 1947. She, therefore, asks an extension of time within which to file her renunciation of the bequests and devises to her in the will of her husband. This she claims can be granted by the Orphans' Court under Section 315 of Article 93 of the Code.

The executors and the other legatees, appellees here, answered on April 21, 1947, challenging the power of the Court to grant an extension, and denying that the case presented justified such an extension, if the power existed. On April 25, 1947, one day prior to thirty days after the expiration of the notice to creditors, the Orphans' Court filed an order dismissing appellant's petition. The reason for this action is found in the order where it is stated "the Court being of the opinion that it is without jurisdiction to enlarge the time for filing a renunciation as prayed."

The question before us, therefore, is the proper construction of Section 315 of Article 93. This question is clearly not moot as contended by the appellees, because the court's action on April 25, 1947, was before the expiration of the time within which it must act (if it can act at all). If we find such action erroneous, we can reverse the order, and send the case back for the passage of a correct order. If the Orphans' Court acted incorrectly in time, it would be a travesty to hold that we could not order it to act correctly later, merely because the original time limit had expired before the case reached this Court and we could hear and decide it. When the Orphans' Court acted within the time limit, the statute, in this respect, was satisfied.

Section 315 of Article 93 was first enacted by Chapter 588 of the Acts of 1933. At that time the numbering of the sections of Article 93 was different from that existing at present. The Act, according to its title, added a new section to the Article to follow immediately after Section 311 (now Section 314), sub-title "Widows," to be known as Section 311A, "providing for the execution of renunciation on behalf of an infant or the person incompetent to execute such renunciation, and providing for a further period of time for the filing of such renunciation." (Italics supplied.)

The section as thus enacted by Chapter 588 reads as follows:

"311A. The renunciation as provided in Section 311, be made by the guardian of an infant spouse, when authorized so to do by the Court having jurisdiction of the infant's estate, or may be made on behalf of an incompetent when authorized by the equity court having jurisdiction of the person of said incompetent. The time to make such renunciation may be enlarged before its expiration by an order of the Orphans' Court where such will was probated for a further period of not exceeding six months upon any one application, upon a petition showing reasonable cause and on notice given to such persons and in such manner as the Orphans' Court may direct."

When this Section 311A was codified in the 1939 Code as Section 315 of Article 93, it was noted that the word "may" had been omitted at the end of the first line. Annotated Code, 1939, Vol. 2, p. 3484, Note 1. This was corrected by the passage of Chapter 133 of the Acts of 1943 which repealed and re-enacted with amendments Section 315 of Article 93 "to correct an error in said section."

At the time of the first enactment of the section in 1933, the preceding section (then Section 311) permitted renunciation to be filed only within six months after the date of probate of the will. This was amended by Chapter 142 of the Acts of 1941 to permit the renunciation to be made until thirty days after the expiration of the notice to creditors. It is fairly evident that this amendment was made to enable the widow (or widower) to have a clearer picture of the value of the estate before making a determination. Six months after probate there might still be time for claims to be filed, reducing the net value of the estate. Thirty days after the notice to creditors expired, the net value could be more accurately determined, and the surviving spouse would have more accurate facts upon which to make the decision permitted by the statute. There is nothing in this amendment which would help a widow in the predicament of appellant.

The contention was made by the appellees (and upheld by the Orphans' Court) that the extension allowed by Section 315 applied only to renunciations to be made by guardians of infants or by those appointed by equity courts having jurisdiction of the persons of incompetents. As the appellant is neither an infant nor an incompetent, they claim that the Legislature did not give the Orphans' Court power to enlarge the time given her by Section 314, but that she must make her election within the thirty days after the expiration of the notice to creditors, as provided by that section. This contention they base upon the language used in the title of the Act of 1933 and in the body of the section. They claim any other construction would cause the Act of 1933 to violate Article 3, § 29 of the Constitution, which requires every law to embrace but one subject. They also argue that as Article 93, § 314, has always been strictly construed by this Court, we should not now depart from that point of view. In this connection, they cite Collins v. Carman, 1854, 5 Md. 503;Kernan v. Carter, 1918, 132 Md. 577, 104 A. 530; Bish v.Bish, 1943, 181 Md. 621, 31 A.2d 348.

An examination of the words of Section 315 discloses that, so far as grammatical construction is concerned, "such renunciation" may mean either "The renunciation as provided in Section 314" or it may mean that renunciation then for the first time permitted to guardians of infants and incompetents. It has not been unusual in limitation statutes to extend them for infants and incompetents for a period after the disabilty is removed. But that is not the method adopted here, if that is what the Legislature meant. The renunciation is not to wait until the infant or incompetent has become sui juris. It is to be made by others for those disqualified to make it for themselves. It is difficult to assign any good reason why a guardian or a committee should have six months more time (with the possibility of other six month's extensions) to determine whether it is better for the ward to take under a will or not. Relieved of personal feelings which might (and probably in most cases would) affect the choice of the widow or the widower, a personal representative should be able to look at the interest of the ward impartially and to decide more quickly. As the necessity of the appointment of such a guardian or committee would be seen at once this would cause no appreciable delay. Certainly not six months.

The title of Chapter 588 uses the words "such renunciation" twice. The first time the words clearly refer to the general renunciation provided in the preceding section of Article 93. The second time, it would seem to be reasonable to assume that they were used in the same sense as they were twelve words before. However, they could have been used in the more restrictive sense. Courts should not base the construction of statutes on refinements of grammar or punctuation or of correct sentence structure if reasons exist for a different construction. In the case before us there are other considerations which weigh more heavily in favor of the appellant's construction.

The bill enacting Section 315 (then 311A) was sponsored (and probably drawn) by a State Commission of lawyers appointed by the Governor. This Commission reported its efforts to the Maryland State Bar Association. In the Reports of the Association, Vol. 37, page 60, the Commission stated that this law provides "for renunciation by guardian of infant spouse or on behalf of incompetent spouses, also provides for enlargement of time forfiling of renunciation in reasonable cases." (Italics supplied.) This wording indicates that the Commission did not think the provision for enlargement applied only to infants or incompetents.

It may be noted that the same interpretation is given to the law in the syllabus on "Administration of Estates" printed in February, 1946, in connection with the Veterans Refresher Course of the State, City and Junior Bar Associations.

The Model Probate Code prepared by a Section of the American Bar Association provides for an extension of time if litigation is pending, which would affect the share to be received by the surviving spouse. This Code is, of course, not in force in Maryland. It is pertinent only to show that the necessity of an extension in cases other than those of infants or incompetents has been recognized by lawyers in all parts of the country.

The wording in the Maryland statute is practically identical with that in the New York statute (Thompson's Laws of New York, Pt. 1, Decedent Estate Law, p. 657, Sec. 18, par. 7). The New York statute places the extension provision in a separate paragraph, after first providing generally for renunciations. There can be no question that, in New York, the extension applies to all surviving spouses, those who are infants, those who are incompetent and those who are sui juris. When we import a statute from another jurisdiction, and that statute has a definite meaning there, the meaning comes with it, and becomes a part of our law. Lavender v. Rosenheim, 110 Md. 150, 72 A. 669, 132 Am. St. Rep. 420; Saunders v. Maryland UnemploymentCompensation Board, 188 Md. 677, 53 A.2d 579. The meaning might change if there is a clear indication that such change is intended, but a change in the location of the words in the statute would hardly be such an indication.

From all these considerations, it is concluded that the Legislature meant to give power to the Orphan's Courts, upon a showing of reasonable cause, to enlarge the time to renounce for all spouses for periods not exceeding six months upon any one application. This conclusion does not depart from the previous strict construction (if it may properly be so denominated) of the renunciation sections of the law. It, in effect, reaffirms the necessity of complying with them strictly, unless such an enlargement as that provided by the Legislature is obtained. Nor does this construction make the statute of doubtful constitutionality. The title states the act provides for two things in connection with renunciation. That is not two subjects. It is only two parts of one subject. And the subsequent repeal and re-enactment by Chapter 133 of the Acts of 1943 was made in strict and literal compliance with the provisions of the Constitution.

The Orphans' Court did not exercise its discretion because it thought it did not have the power. Since it has the power, the case could be remanded for its determination on the facts, but this might lead to a further appeal and more delay. The facts seem to be fully stated, and the only objection to the extension (other than the legal one, already disposed of) is that the appellant was slow in filing her bill of complaint in the Circuit Court. In a case such as this, where definite allegations of fraud are made, she is entitled to her day in court. She did not delay unduly in deciding to file her bill of complaint. She may properly have hesitated to file her bill until she had no other method of getting her rights. She should not be required to make a gambler's choice. The extension should be granted.

It is, in my opinion, much to be regretted that the majority of the Court could not reach the conclusions above outlined. I think they have placed too much emphasis on narrow technical contentions and have overlooked the real purpose of the Legislature in enacting the statute.

I am authorized to say that Judge Delaplaine joins with me in the views I have endeavored to express in this opinion.