150 A. 793 | Md. | 1930
There are two questions presented by this appeal:
1. Had the orphans' court jurisdiction to determine whether a legacy in lieu of dower bequeathed to a wife by the will of her husband, who survived her, was saved from lapsing, and vested in her next of kin, by virtue of section 335 of article 93 of the Code?
2. If the orphans' court had the requisite jurisdiction, did it correctly decide that the legacy did not lapse but was distributable to the legatee's next of kin under the Code provision just cited?
The bequest is contained in the will of George H. Longerbeam, of Allegany County, and is in the following form: "Out of the proceeds of the sale of said real estate, I bequeath to my wife, Alice Longerbeam, the sum of two thousand dollars in cash, which said sum I direct my executor to pay to my said wife out of the first moneys he shall receive from the sale of said real estate. Said sum of two thousand dollars will be in lieu and in full of any dower rights which my said wife might have in both my real and personal estate."
The will was executed in 1914, and the testator's wife died in 1918, while his death did not occur until 1929.
It is provided by article 93, section 335, of the Code: "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."
Under that section, when applicable, a legacy to one who died in the testator's lifetime passes to the legatee's next of kin living at the time of the testator's death. Courtenay v.Courtenay,
In the recent case of Collins v. Cambridge Maryland Hospital,
The question presented to the orphans' court in this case was whether a legacy to the testator's wife, who died before the will took effect, was payable to her next of kin under the statute quoted. In reaching its conclusion the court was required to consider and dispose of the contention that, as the bequest was expressly made in lieu of dower, it was intended to be payable only if the wife survived the testator, and that hence the statute was not applicable. But authority to decide as to the effect of the will in that respect was essential to the effective discharge of the orphans' court's function and duty to determine who were entitled to receive the bequeathed fund. It was within the recognized power of that court to adjudicate such a question, and the objection to its jurisdiction was properly overruled.
In the conclusion of the orphans' court that the legacy was payable to the next of kin of the deceased wife of the testator we also concur. The terms of the bequest, when considered in connection with the statute, are entirely consistent with the decision under review. The will must be presumed *248
to have been made with knowledge by the testator of the existence of the statute and of its effect in preventing the legacy from lapsing and in vesting it in his wife's next of kin, if she died in his lifetime. Redwood v. Howison, supra; Duering v. Brill,
Order affirmed, with costs.