Gardner v. Mercantile Trust Co.

164 A. 663, 164 Md. 280, 1933 Md. LEXIS 28

• Court: Court of Appeals of Maryland
• Decided: February 17, 1933
• Docket: [No. 113, October Term, 1932.]
• Status: Published

Opinion

Adkins, J.,

delivered the opinion of the Court.

This appeal is from an order of the Orphans’ Court of Baltimore City dismissing exceptions to the third administration account filed by the executor of the estate of William B. Oliver, deceased. This account was a distribution of a sum retained for payment of taxes and further accounting. In the two previous accounts, distributions were made to the widow which included her part of the accumulated income as well as the original corpus. The widow had renounced the provision made for her by her husband’s will, and elected to take her legal share of her said husband’s estate. He left no issue.

In filing the said third account, in which one-half of the balance for distribution was distributed to the widow, the executor attached a notation in which he stated that the previous accounts included income as well as principal; that “It has been suggested that under the recent opinion of Judge Prank in the Van Lear Black case the widow is not entitled to any part of the income of the estate pending settlement received during the first year after the testator’s death. In this account, however, no readjustment has been made of the one-half of the net income from said estate which was heretofore distributed to her as aforesaid, and she is also allowed one-half of such part of the income collected from the un divided estate as was received during suck first year. If suck readjustment were made, tken tke sum of $7,675.65 would be deducted from or ckarged against the items hereby distributed to Mrs. Hellmann and added to tke securities- and cask distributed in tke Divided Estate to tke legatees under tke will.” To said account, as filed, tke appellants filed exceptions wkick were dismissed. This appeal is from tkat order.

We find no error. Tke contrary view was tke result of a misconstruction of a statement in tke opinion in Lewis v. Lewis, 138 Md. 70, 113 A. 573, relative to tke contention of counsel for appellant in tkat case tkat it would be unfair not to allow tke widow, who accepted tke provision made for ker by ker husband in kis will, interest on tke bequest from the date of kis deatk, wken, if ske kad renounced tke will and elected to take ker dower and tkirds, ske would kave gotten tke income from a third of tke property from tke date of kis deatk. A more elaborate argument in tke opinion would kave made it plain tkat wkat we meant by tke misunderstood statement was tkat, if ske kad renounced tke will, ske would kave been in no different position witk respect to interest, as wkat ske would tken kave taken would kave been one-third of tke surplus of tke estate, to wkick no interest would kave been added; tkat wken ske accepted tke bequest ske was ckarged witk knowledge tkat it would not be due until after administration and tkat tke legacy would bear no interest, and also witk knowledge tkat tke surplus of tke estate meant tke entire balance for distribution (including accumulated income) less debts and costs of administration. We did not mean tke premise of tke learned counsel was false, but tkat kis argument was fallacious because it did not distinguish between income, wkick became merged in tke corpus and was a part of tke balance for distribution, and interest.

Whether tke widow in tke Lewis case kad elected to take tke bequest or ker tkirds, ske would kave been entitled to possession only at tke time of distribution; tke amount in tke one case being fixed in advance by tke will, in tke other being undetermined until ascertainment of the surplus for distribution. In neither case would interest have been added to her share. The law governing this case is found in section 311 of article 93 of the Code, which provides that in case of renunciation, “If the election be of the legal share of both real and personal estate, the surviving husband or wife shall take one-third of the lands, as an heir, and one-third of the surplus personal estate (if the deceased spouse shall be survived by descendants) and one-half of the lands, as an heir, and one-half of the surplus personal estate (if the deceased spouse shall not be survived by descendants) and no more.”

It is sought by appellants to ascribe some significance in support of their contention to the words “and no more.” But we find none. We think the explanation given by counsel for appellee in his brief is the correct one, viz., that those words were used to prevent a widow in case of renunciation from getting, in any event, more than half of her husband’s estate, and to prevent any possible idea or inference that, when there were no relations as near as brothers’ or sisters’ children, the renouncing widow would take the whole, as in cases of intestacy.

The words “surplus personal estate” in section 311 mean, we think, the entire balance of personal estate, principal and income, at the time of distribution.

Order affirmed, with costs.