Simpson v. Piscano

419 A.2d 1059, 288 Md. 560, 1980 Md. LEXIS 220

• Court: Court of Appeals of Maryland
• Decided: October 1, 1980
• Docket: [No. 48, September Term, 1979.]
• Status: Published

Opinions

Smith, J.,

delivered the opinion of the Court. Eldridge, Cole and Davidson, JJ., dissent. Cole, J., filed a dissenting opinion at page 567 infra, in which Eldridge and Davidson, JJ., join.

We are here involved for the first time in interpreting Maryland’s lapsed legacy statute as it was amended as a result of the 1968 report of the Governor’s Commission to Review and Revise the Testamentary Law of Maryland, commonly known as the Henderson Commission (the Commission).¹

Prior to the 1969 revision of the Maryland probate law our former statute, Maryland Code (1957) Art. 93, § 354, stated:

No devise, legacy or bequest shall lapse or fail of taking effect by reason of the death of any devisee or legatee (actually and specially named as devisee or legatee, or who is or shall be mentioned, described, or in any manner referred to, or designated or identified as devisee or legatee in any will, testament or codicil) in the lifetime of the testator, but every such devise, legacy or bequest shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator.

The Commission referred to the construction which had been placed upon that section by this Court, stating:

As formerly construed, § 354 (Md.) operated to transfer property directly to the heirs at law of the deceased legatee, even though such person might himself have left a will. See, [1 P. Sykes, Probate Law and Practice], §§ 131-134 [(1956)]; [Mullen, The Maryland Statute Relating to Lapsing of Testamentary Gifts, 7 Md. Law Rev. 101,] 111-112 [(1943)]. Thus, if A dies after the execution of B’s will which leaves property to A, such property would pass to A’s heirs at law even though A left a will which would have left the property to other persons. A second aspect of the former statute was that the property was not subject to administration in the estate of the deceased legatee (or to his debts) but passed directly to his heirs. [Id. at 54-55 (emphasis in original).]

The General Assembly enacted the new statute, Code (1957, 1969 Repl. Vol.) Art. 93, § 4-403 in the exact words proposed by the Commission. The present statute, a product of code revision, is to the same effect. It is Code (1974) § 4-403, Estates and Trusts Article, which provides:

(a) Death of legatee prior to testator. — Unless a contrary intent is expressly indicated in the will, a legacy may not lapse or fail because of the death of a legatee after the execution of the will but prior to the death of the testator if the legatee is:

(1) Actually and specifically named as legatee;

(2) Described or in any manner referred to, designated, or identified as legatee in the will; or

(3) A member of a class in whose favor a legacy is made.

(b) Effect of death of legatee. — A legacy described in subsection (a) shall have the same effect and operation in law to direct the distribution of the property directly from the estate of the person who owned the property to those persons who would have taken the property if the legatee had died, testate or intestate, owning the property.

(c) Creditors of deceased legatee. — Creditors of the deceased legatee shall have no interest in the property, whether the claim is based on contract, tort, tax obligations, or any other item.

6 W. Bowe and D. Parker, Page on Wills § 50.10 (1962) is authority for the fact that statutory provisions to prevent lapse may be divided into three groups. Id. at 78. They say, "One group applies only where the beneficiary is the lineal descendant of testator, and, usually, where he dies before testator, leaving lineal descendants. In such a case, the legacy does not lapse; but passes to the descendants of such beneficiary.” Id. at 78. It is further stated the second group "applies where the beneficiary is a relation of testator, and, usually, where he dies leaving lineal descendants who survive testator.” Id. at 79. It is obvious that neither the old nor the new Maryland statute falls into either of those groups. Page states, "The statutes of the third group are not limited, by their terms, to gifts to relatives, or to any specified devisees or legatees; but apply to all cases in which the devisee or legatee dies before testator.” Id. at 80. Neither counsel nor we have found an anti-lapse statute similar to our current law.

In this case Bernard P. Hoenig and Leona P. Hoenig were married on October 11, 1969. On April 10, 1970, they executed wills. He left all of his estate to his wife. She left all of her estate to her husband. Neither will provided for the contingency of not being survived by the spouse. He died without issue February 9, 1975. She died without issue May 13, 1976.

The wife’s personal representative invoked the provisions of Code (1974) § 9-112, Estates and Trusts Article, and requested the Orphans’ Court of Baltimore City to direct distribution. It determined that the personal representative should distribute the estate to the heirs of the husband to the exclusion of the heirs of the wife. Pursuant to Code (1974) § 12-502, Courts and Judicial Proceedings Article, an appeal was entered to the Superior Court of Baltimore City. It reversed, holding that the anti-lapse statute directed the bequest back to the wife. She as a deceased person could not take under the statute, its application having been exhausted. Judge Hammerman said in the course of his opinion:

It is my view that the entire estate of Leona is effectively disposed of here by virtue of the anti-lapse statute, Section 4-403, and thus, her property goes according to Bernard’s will. And according to Bernard’s will, as we know, the property would then go back to Leona. In my view, only when it arrives back with Leona does it become a non-effective disposition of the property... . Thus, it is at this point — when the property arrives back at the starting gate — that 3-101 is triggered, because the anti-lapse statute becomes ineffective then.

Code (1974) § 3-101, Estates and Trusts Article, to which Judge Hammerman referred, states:

Any part of the net estate of a decedent not effectively disposed of by his will shall be distributed by the personal representative to the heirs of the decedent in the order prescribed in this subtitle.

We granted the writ of certiorari prior to the time this case was heard in the Court of Special Appeals.

Under the old statute the property would have been distributed to the heirs of the husband living at the time of the wife’s death, as the Commission report makes clear. It is evident that the Commission not only was of the view that the earlier construction requiring passage of the legacy to the heirs at law of a deceased legatee was in error, but that there should be a change made. It said:

The somewhat anomalous result of the property passing to the heirs at law of the deceased legatee even though he left a will was felt by the Commission to be contrary to the intent of the original framers of the statute. Therefore, the second sentence of this Section provides that property which is the subject of a lapsed legacy is to pass "to those persons who would have taken if said legatee had died, testate or intestate, owning the property.” The intended result is that such property would pass under the will of the deceased legatee to the persons nominated by him — most frequently, the residuary legatees. [Id. at 55 (emphasis added).]

Judge Singley referred for the Court in Stewart v. Whitehurst, 268 Md. 589, 303 A.2d 393 (1973), to the Commission’s intention to change existing law:

The Comment to § 4-403 emphasizes that it was the intention of the draftsmen to amplify the lapsed legacy statute by providing that a bequest to a deceased legatee who had died testate would pass as provided in the will of the deceased legatee and not to the next of kin of the deceased legatee under the statute of distribution. [Id. at 591.]

To reach the result for which they contend, the dissenters and the husband’s heirs seek to apply § 3-101 relative to ineffective distribution to the will of the deceased legatee, the husband, not to the will before us, that of the wife. They say that otherwise the lapsed legacy statute would be applied twice. First of all, § 3-101 refers to "the net estate of a decedent not effectively disposed of by his will ....’’ In this instance the reference certainly must be to the net estate of the wife, not to the net estate of the husband. This sum is to be distributed "to the heirs of the decedent . . . .” Certainly, in the context in which this language is used it is the wife in the case at bar, not the husband, who is the decedent. It is her estate, not his, which we have before us. Secondly, it is the clear intention of the present statute that if a legatee has died testate prior to the death of a testator the legacy shall pass to the nominee of the deceased legatee. When this construction is applied, the legacy here to the husband would come back to the wife as his nominee. This is but one application of the lapsed legacy statute, not two. Thus, this legacy is a "part of the net estate of a decedent not effectively disposed of by [the] will [of that decedent]” and hence is to "be distributed by the personal representative [of that decedent] to the heirs of the decedent in the order prescribed in [Title 3 of the Estates and Trusts Article].” ²

A holding to the contrary would fail to apply the changes wrought as a result of the Commission report. It must be borne in mind that in its report, which the General Assembly had before it when it enacted this changed statute, the Commission said, "The intended result is that such property would pass under the will of the deceased legatee to the persons nominated by him — most frequently, the residuary legatees.” Id. at 55 (emphasis added). A holding for distribution to the heirs of the husband would give no effect to the "nomination” by him as the deceased legatee.

Judgment affirmed; appellants to pay the costs.

1 . Its chairman was the Honorable William L. Henderson, a member of this Court from 1944 to 1964, retiring as its chief judge. The membership included a then member of the Court of Special Appeals, Thomas M. Anderson, Jr.; a then legislator who is now a member of the Court of Special Appeals, Thomas Hunter Lowe; the present Administrative Judge of the Supreme Bench of Baltimore City, Robert L. Karwacki; a number of lawyers who were and are outstanding in the field of probate practice, and such persons of practical experience as Miss Ruth R. Startt, the longtime Register of Wills of Talbot County.

2 . The dissent poses the problem of nonreciprocal wills with the death of the testator prior to the only legatee mentioned in his will, he being identified as A. It says:

The reasoning of the majority would require distribution of the property to the legatee and according to his will to A. But just as Leona is dead, A is dead. Again the reasoning of the majority would further require us to give the property to A’s heirs just as the property was given to Leona’s heirs. But what if A had a will and there are persons named therein to take? Do we distribute according to his will? Do we again apply the antilapse statute to legacies in his will? When does the chain end?

Obviously, that situation is not before us. Whether the wills are reciprocal makes no difference. The reason in the case at bar that the ineffective disposition or intestacy statute comes into play relative to the wife’s will is because it is she who has made an ineffective disposition. She left to her husband. He predeceased her. He devised his whole estate to her. Thus, under the lapsed legacy statute the estate passes to the nominee of the deceased legatee. Since in this instance his nominee is the wife it is she, not the husband, who has made an ineffective disposition. Although the dissent says it "do[es] not believe that § 3-101 is applicable to the facts here at all,” it seeks to use that section as the basis for distribution to the heirs of the deceased legatee.