131 A. 40 | Md. | 1925
Ignatius Wisniewski and Bronislawa, his wife, on August 8th, 1911, by deed, duly executed and recorded, acquired as tenants by the entireties the leasehold interest in a property described as 1101 S. Kenwood Avenue in the city of Baltimore, subject to an annual ground rent of $31.25. At that *111 time Mrs. Wisniewski had four children by a former marriage, Andrew, Joseph, Pete and Stanislaus Fiksak. In 1914, as a result of domestic difficulties, she and her husband appear to have separated for a time, and as an incident of the separation she bought her husband's interests in the Kenwood Avenue property, and in order to transfer it she and her husband joined in a deed assigning it to George C. Wiedersum, who is turn assigned it to her, so that after that the title to it stood in her name alone. In 1923 she conveyed the property to Isabel T. Brady, who immediately reconveyed it to her. On November 28th, 1924, she executed in due form a last will and testament, and on the same day she died.
The deed from Isabel T. Brady to her contained this clause:
"To have and to hold the above described property with its appurtenances unto the proper use of the said Bronislawa Wisniewski for and during the term of her natural life and no longer and with full power and authority to said Bronislawa Wisniewski to sell mortgage lease or in any manner dispose of or encumber the property hereby conveyed or any interest therein, including the absolute estate with the right to dispose of and consume the proceeds of any sale mortgage or lease thereof in such manner as she may desire without any obligation on the part of any purchaser mortgagee or lessee to see to the application of said proceeds and with full power and to the said Bronislawa Wisniewski to dispose of the property above described by her last will as she may deem proper the intention being that said Bronislawa Wisniewski in the exercise of said power shall have the right to convey or will all interest in said property both life estate and remainder and in default of her exercising the said power to sell or will then with remainder over from and immediately after the death of said Bronislawa Wisniewski to James Fiksak, Henry Fiksak, Pete Fiksak and Joseph Fiksak their heirs personal representatives and assigns in equal shares as tenants in *112 common subject to the payment of the annual rent of thirty-one dollars and twenty five cents on the first day of January and July in every year."
On December 16th, 1924, the appellee filed a written renunciation of the provisions made for him in his wife's will, and on December 26th, 1924, he filed the bill of complaint in this case against the four sons of his deceased wife and the executor of her last will, in which he asked (1) that the Brady deeds be set aside, (2) or, that they and the will of Mrs. Wisniewski in connection with the appellee's renunciation be construed, (3) that trustees be appointed to sell the property and distribute the proceeds, and (4) that the defendants be restrained from prosecuting any action to eject the appellee from the property. The several defendants answered, testimony was taken, and on March 5th, 1925, a decree was signed setting aside the deed from the decedent to Isabel T. Brady, and from Isabel T. Brady to her, declaring that Mrs. Wisniewski was possessed of the property at the time of her death, and that the appellee had the same interest therein that he had in the other personal property of the decedent which passed under her will. From that decree the defendants appealed.
The appeal raises three questions: First, had the appellee as the husband of Bronislawa Wisniewski any interest in the property involved in this proceeding after he had united in the deed conveying it to Wiedersum in order that he might convey it to her; second, assuming that he did have such an interest, was he fraudulently deprived thereof by the conveyances from Mrs. Wisniewski to Isabel T. Brady and from her to Mrs. Wisniewski, and third, if he was, is he estopped by his conduct from asserting that fact in this proceeding
The evidence material to a consideration of these questions is uncontradicted and may be briefly stated. Frank Jaworski, the executor of Mrs. Wisniewski's estate, testified that at about the time the Brady deeds were executed Mrs. *113 Wisniewski asked him to place certain monies which she had in the Gibraltar Building Association in her name in trust for herself and Jaworski, subject to the order of both, the balance at the death of either to belong to the survivor, and directed him, upon her death, to pay $200 for "masses and the priest and two hundred dollars for the new church" to "fix" her lot and erect a tombstone, and to divide the balance among three of her sons. That at that time she said that she did not want her husband to have anything, that she "would not give him a straw," and that she "had fixed her property or money that he would not get anything"; that she wanted it to go to her sons; that her sons were sending her money but that her husband was not. He also testified that she and her husband lived together in the Kenwood Avenue house continuously until her death.
John A. Brady, an attorney at law, testified that he drew the deeds conveying her husband's interest in the property to her in 1914. In referring to the circumstances connected with that transaction he said: "The title continued in them until 1914 when there seemed to be a separation between the two people and they came to me and asked me if the property could be put in the wife's name. There was considerable negotiation in reference to the transfer, the husband was holding out for more money and was dickering with his wife the same as he would with a stranger, and the thing was carried on for perhaps four or five weeks and they made four or five visits, I think, to me together, and then each one came singly. At last it was agreed that the wife could have the property transferred to her providing she paid the husband one-half of the purchase price of that property. There had been no change in the market values at that time and I adjusted the matter, figured it right down to even the cost of recording the paper and left the equity in the property to be worth so much money, and she paid her husband one-half the amount of that equity according to the purchase price of the property at that time, and she took the property there subject to the building association mortgage, *114 which she continued to pay weekly. * * * Mrs. Wisniewski said — she spoke very broken English — she said: "My man pays nothing, pay no taxes, no water, no ground, pay me no money, no eat, no book. My man no good. My boy is good. My boy pay taxes and my boy pay it, me got house and man got no house." That is the way she talked. He was arrogant at the time. He said, "Go out; I want no more house. You take house, you have boys, you and boy take house and give me my money and I get out." He further testified that the plaintiff, at that time, said: "`Give me my money out of this house and give the house to you and your boys.' That is not the exact language. It was broken English, but that is what he said."
He also prepared the Brady deeds, and speaking of those transfers he said: "She came to me and said she wanted the property transferred to the boys. I asked her then where the boys were. Two of them were on the ocean. She did not know where they were. And one she had no idea where he was. She did not know whether he was dead or alive. * * * Q. You mean to tell us now when she came to you in 1923 and asked you to draw this deed she did not say anything about her husband and you did not ask her anything about her husband? A. I asked her if her husband was doing any better than what he had been doing, and she says, `No.' She said, `Man no good, man no money, did not pay nothing.'" He also testified that the husband was not considered at all, in connection with that transaction; that he, Brady, did not think that the husband had any right in the matter, because the woman was making a gift to her sons. There was also testimony that Mrs. Wisniewski and her husband often quarreled, that she complained that he did not support her, that on one occasion she had him arrested for non-support, that she herself was a hard-working woman, that she saved substantial sums from her earnings, and that her savings and what she received from her sons substantially made up the estate of which she was possessed at her death.
In her last will, made just before her death, after bequeathing *115 $100 to her husband, $200 to her son Stanislaus, and $400 to Rev. Benedict Przenielewski for the use of St. Casimir's Church and for "Holy Masses to be said for the repose" of her soul, she left all the residue of her property to her three sons, Andrew, Joseph and Pete Fiksak.
Returning to the three questions raised by the appeal, we will consider first the marital rights of the appellee in the Kenwood Avenue property, and the effect of his sale of his interest therein to his wife. As the husband of Bronislawa Wisniewski, he became entitled at her death to one-third of the personal estate then owned by her (C.P.G.L. of Md., article 93, section 126), of which share she could not by will or otherwise deprive him,Ibid. 326; Barroll v. Brice,
The fact that Mrs. Wisniewski held the property as part of her sole and separate estate during her lifetime, both under the deed, and under the statute (C.P.G.L., art. 45, sec. 4), did not bar her husband's right to his statutory share of her personal estate at her death. McCarthy v. McCarthy, 20 App., D.C., 195; 18 C.J. 849; Mitchell v. Chatanooga Sav. Bank,
Some affirmative act of the husband is necessary to release his statutory right in his deceased wife's estate. As we have stated, the record fails to disclose any such act, and in our opinion the deed to Wiedersum did not have that effect. If she had acquired the property from a stranger, and had owned it at the time of her death, her husband's *118 right to receive one-third of it at her death could not be questioned. And it is not clear how or why any different effect should be given to a similar deed because it was executed by the husband instead of a stranger. In either case she would have acquired the property absolutely, and there is no more reason to hold that the husband's marital rights existed in the one case than in the other. If it had been intended that he should surrender his marital rights in the property at her death, that intention could have readily been expressed either by a separate release, or in the deed to Wiedersum.
It is true that in cases dealing with the effect of a conveyance from a husband to a wife upon his right to curtesy, it has been held that that right was absolutely barred, but the cases are not analogous, because the right of curtesy, strictly speaking, if it exists at all, exists during coverture unless suspended or surrendered, and is inconsistent with the sole and separate estate of the wife; while here the husband's right to an interest in the property did not at all interfere with the wife's use, control, or disposition thereof, so long as she actually and in good faith sold or gave it away. But it has also been held, apparently by the weight of authority, that the husband's curtesy is not barred by a deed of bargain and sale or any conveyance from him to his wife in which there is not an express renunciation of his marital rights. 17 C.J. 424; Depue v.Miller,
The next question is whether the Brady deeds were a fraud upon that right. The conclusion is inevitable from the testimony that they were executed for the explicit purpose of preventing the appellee from receiving any portion *119
of his wife's estate. That she had the right to do that by actually selling or giving away her property cannot be questioned. But the conclusion is equally obvious that she never did part with it, sell it or give it away, because under the deed from Isabel T. Brady to her, she had every right, and the same right, to deal with that property that she had before she conveyed it to Isabel T. Brady. Under such circumstances the law is settled that the Brady conveyances were a fraud upon the marital rights of the appellees. The principles upon which that conclusion is founded have been repeatedly stated by this court, but nowhere more clearly than in Rabbitt v. Gaither,
Applying those principles to the facts of this case, the conclusion is inevitable that the Brady deeds were a fraud upon the marital rights of the appellee. The appellant contends that the presumption of fraud is negatived because the appellee agreed that the property should belong to his wife and children, but there are two objections to that contention, first, that the proof of any such agreement is unsatisfactory and insufficient, and second, that if there had been such an agreement the deeds do not carry it out, because under them the decedent never parted during her life with the absolute and uncontrolled power to dispose of the property as she saw fit.
Nor do we think the appellee was estopped from claiming his marital rights in his wife's estate. He was paid for his one-half interest in the property by his wife, and he transferred that one-half interest to her, and in that conveyance he did nothing more, nor does it appear that he ever agreed to do anything more. Brady, the attorney who drew the deeds, speaking of the appellee, said that after his wife, in the course of what appears to have been an altercation, had charged him with failing to support her, that "he was arrogant at the time. He said, "Go out; I want no more house. You take house, you have boys, you and boy take house and give me my money and I get out." Certainly that language, *121 and it is all that is to be found in the record relating to the question, can scarcely, under the circumstances, be held to amount either to a contract, nor to estop the appellee from asserting his marital rights when he continued to live thereafter with the decedent until her death, more than ten years later.
For the reasons stated it follows that the decree appealed from will be affirmed.
Decree affirmed, with costs to the appellee.