Lumpkin v. Lumpkin

70 A. 238 | Md. | 1908

This record contains two appeals, from decrees of the Circuit Court No. 2, of Baltimore City, taken by Cora Lee Lumpkin, widow of William W. Lumpkin. The first appeal was by her, in her own right, from a decree dismissing her petition to reopen and modify a decree theretofore passed in the case of Hannah S. Lumpkin et al. v. Harriet V. Lumpkin et al. The second appeal was by her, as executrix of her husband's will, from a decree dismissing a bill of review filed by her as executrix for the same purpose as her petition. The cases on the petition and the bill of review were heard together by the Court below, and, as both of the proceedings were instituted for the ultimate purpose of procuring a correct construction of the will of the late Robert G. Lumpkin, the two appeals will be considered by us together.

It appears from the record that Robert G. Lumpkin, of Baltimore City, died on August 10th, 1905, seised of a dwelling house and 164 fee simple ground rents and possessed of personalty of large value. He left a will, which will be more fully noticed hereafter, naming his widow Hannah S. Lumpkin and W. Burns Trundle as executors and they duly qualified as such. The widow and five children and three grandchildren survived the testator. The children were Edward T. — John F. — Emma V. — Robert G.L. and William W. At the death of the father Edward T. was married and had two infant children and Emma V. was the wife of James Clark and had one infant child. Rogert G. was also married but had no children, and William W. married the appellant on September 27th, 1905, after his father's death.

Robert G. Lumpkin by his will, which was made on January 22d 1900, gave to his widow his dwelling house and its contents absolutely and also gave her four-tenths of his entire estate for her life with remainder to his children to be equally divided between them. He then gave, without any expressions of qualification or limitation to each one of his five children one-tenth of his estate less whatever the recipient might owe him at his death. The testator then after giving the remaining one-tenth of his estate in trust for his grandchildren added at the end of the clause creating the trusts the following sentence. "In case of either of my children's death without leaving lawfulissue then I will and direct that their portion or inheritance inmy estate shall be equally divided between my wife and my surviving children." The true meaning of that sentence is the question of construction lying at the root of the entire litigation of which the present appeals are the latest development. The appellant contends that the death therein referred to of a child without issue means such a death in the lifetime of the testator, while the appellees insist that it means such a death whenever it shall occur. It is conceded by all parties that under Art. 93, § 325, of the Code, the devise over is not void for indefiniteness.

On September 22d 1905, a bill was filed in the Circuit Court No. 2, of Baltimore City, by the widow and children of Robert G. Lumpkin against the three infant grandchildren for the two-fold purpose of a partition of the ground rents of which he died seised according to the terms of his will, and also a construction of his will in order "to determine what estates the devisees and legatees under said will take in their respective shares thereunder," and for further relief. Under that bill a commission was issued to make a partition in kind of the rents, and the commissioners made their return in the usual manner making an allotment of 112 of the rents in groups in severalty to the respective children and grandchildren and allotting the remaining 52 rents to the widow for life, but making no allotment or disposition of the remainder therein after her death. The case was then submitted for final decree and referred to a Master and, on the coming in of his report providing that each child should hold the rents allotted to him "in fee defeasible upon the happening of the contingency of his dying without leaving lawful issue him surviving at the time of his death," certain of the plaintiffs through special counsel filed exceptions to the report upon the ground that the title of the children to the rents respectively allotted to them should have been made defeasible only upon their death respectively without issue during the lifeof the testator's widow, Hannah S. Lumpkin. The exceptions to the Master's report were submitted by consent July 13th, 1906, on briefs to be filed, and on the second day thereafter the final decree was filed overruling the exceptions and confirming the return of the commissioners.

Upon an examination of the final decree it appears that the clause of the will of Robert G. Lumpkin relative to the death of any of his children without issue, received no full or complete construction nor any construction at all touching its operation upon the interest taken by the children as legatees of the very large personal estate give to them by the will, or upon the interest devised to them in the 52 ground rents allotted to the widow for her life. The only construction of the will made by the decree was the inferential or implied one resulting from the confirmation of the Master's report and the direction that each child hold the rents, which had been allotted to it in severalty, "in fee defeasible upon the happening of the contingency of his dying without leaving lawful issue him surviving at the time of his death as expressed in the eighth item of said will."

At the time of the filing of the original bill for partition and the construction of the will of Robert G. Lumpkin neither his executors, nor the wife of his son, Robert G., who was then married were made parties to the case. On October 4th, 1905, however a petition was filed by the plaintiffs then in the case calling the Court's attention to the absence from the record of Robert's wife and of the appellant who had, since the filing of the bill married the son, William W., and asking leave to amend the bill by interlineation making the two wives parties plaintiff to the case. Leave having been granted the plaintiffs interlined the names of the two wives among the names of the plaintiffs in the bill, but so far at least as the appellant is concerned she never authorized any counsel to appear for or represent her in the case nor was she ever summoned or otherwise brought into the case or under the jurisdiction of the Court, and it is conceded that she never was a party to the case until she filed her petition to open the decree.

On November 18th, 1907, more than eighteen months after the passage of the final decree and seven months after the filing by the appellant of her petition to reopen the decree and her bill of review, the executors asked for and obtained leave of Court to be made parties plaintiff to the case nunc pro tunc by amendment by interlineation on the bill which was accordingly made.

It also appears from the proceedings that on the 17th of February, 1906, the executors of Mr. Lumpkin's estate passed in the Orphans' Court their first administration account by which they distributed to the appellant's husband for account of his share of the personalty, stocks and bonds of the appraised value of $14,792.89, "subject to the provisions of his father's will" and that The Pocahontas Consolidated Company, one of the corporations whose stock was so distributed to him, declined to transfer it to him subject to the provisions of the will, and that such stock is still in the hands of the executors who now claim title to it as executors because of the death of her husband without issue.

On the 15th of April, 1907, after the enrollment of the decree already referred to, the appellant filed in the case her petition under affidavit for the vacation of the decree and rehearing of the case upon the construction of the will of Robert G. Lumpkin, particularly in so far as relates to the eighth clause thereof, and that she be made a party defendant to the case. On the same day she filed in the same Court, as executrix and sole devisee and legatee of her husband, who had died without leaving issue, a bill of review also under oath against all of the parties to the original case praying that her bill of review might be consolidated with that case and the final decree which had been passed there in on January 15th, 1906, be reviewed and reversed or modified so as to declare that the children of Robert G. Lumpkin, all of whom have survived him, are entitled to hold their devises and bequests under his will in fee simple and by an unconditional title. With the bill of review was filed as an exhibit a certified copy of the will of the appellant's husband making her his executrix and sole devisee and legatee.

In her petition and bill of review the appellant avers that the partition of the rents made in the original case was just and fair and declares her willingness to abide by and confirm it, except as to the description therein of the character of the title by which the children were to hold the rents allotted to them respectively. She also alleges that no sales or conveyances of any of the rents have been made and that no rights of third parties have intervened or stand in the way of the relief for which she asks, and further says that since her discovery of the passage of the final decree and its true nature she has used all of the diligence which her limited means permitted to assert her rights.

The grounds for relief set up in the petition to vacate the decree and in the bill of review are practically the same and consist of alleged errors apparent upon the proceedings, such as the insufficiency of parties, appearing by the pleadings and proof to be necessary, and the failure of the decree to fully dispose of the whole subject-matter of the suit. Both the petition and the bill of review allege that the appellant has always been a resident of the State of Virginia and that she did not have notice at any time during the pendency of the suit upon the original bill that her rights were put in jeopardy or being adjudicated therein or that any attempt had been made to make her a party thereto or that the will of her father-in-law was being construed therein; but the only information she had was that his estate was being administered and his property divided in the ordinary course, and that she never until the filing of her petition to reopen the case had authorized anyone to appear as counsel or solicitor therein for her. She further averred that under the circumstances in which the decree of January 15th, 1906, was passed it was practically but a consent decree obtained by the members of the family residing in Baltimore City and that neither she nor her husband who at that time resided with her in Virginia, although he was nominally represented in the case, supposed that it was anything other than a proceeding to divide the ground rents. She further averred that the construction put upon the will by the decree was erroneous and that, if it were permitted to stand, it would result in an unjust and unlawful destruction of her marital rights in her husband's portion of the rents as well as of her title as the executrix and sole devisee of his will to the real and personal estate given to him by his father's will.

The adult appellees answered the petition, and answered and demurred to the bill of review, admitting generally the existence, character and result of the suit on the original bill but denying the plaintiff's construction thereof and referring to the proceedings themselves for the full particulars thereof, and also admitting that the appellant Cora Lee Lumpkin had not been made a party to that suit prior to the filing of her petition and that she had never authorized any solicitor or counsel to appear for her and that none had so appeared. But they deny that the appellant was ignorant that her rights as the wife of Wm. W. Lumpkin were being adjudicated in the case or that she did not discover that fact until after the passage of the final decree. On the contrary, they aver and insist that during a visit made by her to the house of her husband's mother in Baltimore City in December, 1905, the existence and nature of the partition suit were frequently and freely discussed in her presence and that she at times participated in the discussions, and that she thus learned and knew the true nature of the case and the issues involved in it, and also insist that she has by her laches disentitled herself to prosecute her petition or her bill of review.

The Court below entertained both the petition and bill of review and heard them together on the petition and the bill and the answers thereto and dismissed them by separate decrees, not in either case because they had been filed improperly or without right, but because the learned Judge was of the opinion that the will had been correctly construed by the final decree of January 15th, 1906, in the original case. The decree of Court dismissing the petition contained also the following provisions.

"And it further appearing that by the said original decree in this cause no construction was placed upon the first clause of the will of Robert G. Lumpkin, deceased, and it is further ordered, adjudged and decreed that the clause in said will reading as follows:

"In case of either of my children's death without leaving lawful issue, then I will and direct that their portion or inheritance in my estate shall be equally divided between my wife and my surviving children," does not apply to the first clause of said will, whereby Robert G. Lumpkin, deceased, after giving to his widow a life estate in four-tenths of his estate, real and personal, including in said four-tenths certain enumerated ground rents, provided as follows:

"At my wife's death these ground rents are to be divided equally between my children or their children, share and share alike to my children."

We think the learned Judge below was correct in entertaining the appellants petition and bill of review, but we are unable to agree with him either in the conclusion that the limitation over in the eighth clause of the will upon the death without issue of any of the testator's children did not apply to the remainder in the four-tenths of the ground rents given to his wife for life. Nor are we able to agree with him that the limitation so operated upon the rents given directly to the children as to reduce their estate therein to a fee defeasible by their death whenever it might occur without issue. In our judgment the limitation over was intended to apply with equal force to the entire share or interest of each child in the father's estate and to operate as an alternative gift to the mother and other children of the share of any child who might die without issue in the father's lifetime. As all the children survived the father the limitation over was never called into operation and each child took at the father's death an estate in fee in his share of the realty, and an absolute estate in his share of the personalty, subject however as to the enjoyment of his share of so much of the estate, as was given to the mother for life, to her life estate therein.

There are several errors, apparent upon the face of the proceedings in the original case, affording sufficient ground for reopening it and modifying the decree therein so far as it undertook to construe the will of Mr. Lumpkin. These proceedings were defective both for want of proper parties and because the decree did not finally dispose of the whole subject-matter of the case.

Conceding that the appellant as the wife of one of the sons of the testator was not a necessary party to the case for the purposes of the partition of the rents which did not impair or destroy her dower but merely transferred it from her husband's undivided share of the rents to those of them which were allotted to him in severalty, she was a necessary party for the purpose of the construction of the will. The partition did not put her dower in the rents in jeopardy but the construction of the will not only put her marital rights in her husband's real and personal estate in peril, but the interpretation of the will adopted by the Court, if it were to stand, would in effect deny the existence of those rights. Before that can be done she must have notice and an opportunity to be heard. The plaintiffs elected to make her a party and obtained the Court's authority to do so but the steps they took for that purpose were entirely ineffectual to bring her under the Court's jurisdiction. They went so far as to interline her name upon the bill among the plaintiffs but she was a non-resident of the State and they neither procured her to appear by counsel nor summoned her nor took any other steps to bring her under the jurisdiction of the Court. Nor can we give our assent to their contention that she, a non-resident femecovert, was bound by the proceedings because she heard them discussed by her husband's family on a visit to Baltimore in December, 1905, and was thereby brought within the operation of the principle announced by us in Albert v. Hamilton,76 Md. 304; Riley v. The First Natl. Bank, 81 Md. 28; Williams v.Snebley, 92 Md. 21; Fetterhoff v. Sheridan, 94 Md. 454, and other cases, that persons directly interested in a suit who know of its pendency and have the right to control, direct or defend it and fail to appear and assert their rights are concluded by it. The appellant's marital interest in her husband's property came into existence pendente lite but it arose by operation of law and not by assignment from him and she should therefore, in view of her direct interest in the subject-matter of the suit, have been made a party to it in order to bind her by the construction of the will. Calvert on Parties, [*]91, 92, 97;Story Eq. Pl., sec. 158, 342; Miller's Eq., 56, 57; Handy v. Waxter, 75 Md. 521-2-3.

The executors of a will disposing of personal property are always essential parties, to a bill to construe provisions of the will affecting the personal estate as the title is in them until distribution has been made and the executors of Mr. Lumpkin's will should have been made parties to the present case before the passage of the decree. The prayer of the original bill for the construction of the will having been a broad one asking the Court to determine what estates both devisees and legatees would take in their respective shares thereunder, the decree should have determined whether the controverted clause of the will was intended to operate upon the personalty and also upon the remainders given to the children in the ground rents devised to the widow for life and if so what its operation was upon those portions of the estate. The decree in remaining silent upon those subjects failed to pass upon the whole subject matter of the suit or determine the rights of the parties in reference thereto, thus presenting a defect for which we have repeatedly held a decree to be erroneous. Hurtt v. Crane, 36 Md. 31; Contee v.Dawson, 2 Bl. 292; Evans v. Iglehart, 6 G. J. 171, 204.

The case for the construction of the will, with the appellant thus absent and unrepresented, was submitted for decree without argument upon briefs of two solicitors one of whom asserted that the controverted clause in the will operated to defeat the estate of any child of the testator upon his or her dying without issuewhenever that event occurred, and the other of whom contended that the clause operated to defeat the estate of the child in the event of its dying without issue in the lifetime of thetestator's widow. So far as the record shows, the construction of the will favorable to the appellant, which we regard as the correct one, that the controverted clause operated to defeat the estate of such only of the children as might die without issuein the lifetime of the testator, was not urged upon the Court by any solicitor. We do not at all mean to intimate that the counsel in managing the case or in presenting their respective views upon their briefs had any plan or purpose to injure the appellant or disregard her rights, but we think that the failure of the appellees, when they had obtained leave of Court to make the appellant a party to the suit, to effectually have her made such would, if the decree were to stand, practically result in the destruction of her estate without giving her notice and affording her an opportunity to be heard. In view of these facts, and the further circumstance that the rights of no third parties are shown to have intervened since the passing of the decree, the proceedings in the original case should be reopened and the decree in so far as it can be taken to be or operate as a construction of the will be modified and corrected so as to declare its true construction.

Turning now to the interpretation of the will before us and especially to the ascertainment of the purpose of the testator in inserting therein the controverted sentence at the end of the eighth clause, we are reminded, at the outset, of the fact that the construction of wills has been prolific of adjudications in the history of English and American jurisprudence. The counsel for the appellant have with great skill and industry cited upon their brief and undertaken to collate and distinguish no less than seventy-seven Maryland cases, in addition to the other authorities, relied on by them; and the counsel for the appellees has with like diligence and ability fortified his brief with numerous citations. As the law applicable to the issue before us and the cases of the various Courts, English and American, bearing upon the subject have been on different occasions carefully considered by this Court, we will not again enter upon a review of those cases or attempt to reconcile the diversity and contradictions which they disclose.

It is a matter of prime importance, in ascertaining the intention of a testator, to consider the language in which he himself has given it expression. Directing our attention to the will of Mr. Lumpkin we find that its language is not obscure and that the application to its provisions of a few fundamental principles of interpretation, which have received repeated recognition from this Court, will enable us to determine its true operation upon the estate of which it was intended to dispose. We will first state the principles of interpretation to which we refer and will then in their light consider the provisions of the will.

A testator may, in making his will, fix the absolute vesting of the different estates created by it at such times as he sees fit within the period allowed by law, and when he has done this with reasonable certainty the Courts in construing his will will give effect to his wishes. Larmour v. Rich, 71 Md. 383; Engel vGeiger, 65 Md. 544; Strauss v. Rost, 67 Md. 465; Bailey v. Love, 67 Md. 603; Trust Co. v. Brown, 71 Md. 166;Demill v. Reid, 71 Md. 175; Slingluff v. Johns,87 Md. 276; Thom v. Thom, 101 Md. 456; Reilly v. Bristow,105 Md. 333. Many of these cases as well as others might be cited in support of the other familiar proposition, also relied on inLarmour v. Rich, that "the law it may be conceded favors the early vesting of legacies and the Courts will, as a general rule, where there is more than one period mentioned, adopt the earlier one, if there be no expression or no intent plainly deducible from the terms used that the testator meant to select the later and not the earlier period." The Court especially relied on the last mentioned doctrine in Meyer v. Eisler, 29 Md. 28;Tayloe v. Mosher, 29 Md. 443; Fairfax v. Brown,60 Md. 50; Crisp v. Crisp, 61 Md. 141; Strauss v. Rost,67 Md. 477; Webb v. Webb, 92 Md. 111; Mercer v. Safe DepositCo., 91 Md. 114. Neither one of the two foregoing leading principles of interpretation has ever been questioned by this Court although, in the application of them to particular cases, results have been arrived at, owing to the endless variety of provisions found in the wills construed, which until carefully examined may be seem to be lacking in harmony.

In our opinion Mr. Lumpkin has indicated in his will with reasonable certainty the time at which he intended the portions of his estate given by it to his children to finally vest, or, in other words, the time prior to which he intended the death of one of his children without issue to occur in order to cause its share to pass over to his wife and other children.

The scheme of the will is both natural and simple and, to our minds, its provisions indicate with reasonable certainty what disposition the testator desired to be made of his whole estate. By the first clause he gives absolutely to his widow his dwelling and its contents, and then gives her four-tenths of his entire estate for her life with remainder to his children in equal shares. He then gives absolutely, without limitation or qualification, to each of his five children one-tenth of his estate less what may be due him from the child. The children are not dealt with as a class but the gift of one-tenth of the estate is made to each one by name in a separate paragraph of the will and is complete in itself. One twentieth of the estate is then given to the testator's grandchild, Sue W. Clark, with the direction that it be held in trust for her, until she reaches the age of twenty-one years, by her mother, who is the testator's daughter. The remaining one-twentieth of the estate is given to the testator's son Edward for the use and benefit of the latter's children, he to hold it in trust for them until the youngest child arrives at twenty-one years of age.

After having thus given the entire estate in general and absolute terms without any qualification, except the temporary trusts as to the two-twentieths given to grandchildren, to parties in esse and capable of taking who constituted his own family, the testator added at the end of the eighth paragraph of his will the provision for any of his children's death without issue, which has furnished the bone of contention in the case.

We think that the testator, having in the earlier part of his will given absolutely to his children in specified portions nine-tenths of his estate, subject to his wife's life interest in four-tenths, intended by the clause in question only to provide alternative beneficiaries for the shares of any of his children who might predecease him without leaving issue to represent them at the distribution of the estate, and did not intend to cut down to life estates or defeasible fees the shares which he had given to his childreu absolutely. The age of the testator and his wife when he made his will in 1900 does not directly appear from the record, but, from the fact that they had grandchildren who were seventeen years old in 1905 when the testimony was taken, and that he purchased some of his real estate as far back as 1875, they must have been well advanced in life. As the testator's wife was one of the parties to whom the share of any child dying without issue was given, it is unreasonable to suppose that he intended the alternative gift to take effect at the death of the children whenever it might occur, as that would involve an expectation on his part that his wife would survive all of his children. That feature of the limitation over differentiates the present case from most if not all of the cases cited in which somewhat similar limitations in wills were held by us to refer to a death without issue of the legatee or devisee whenever it might occur. No gift over in favor of the testator's wife, on the death without issue of the first taker, is found in any one of the six cases, cited and mainly relied upon by the learned Judge below in his opinion filed in the case on the bill of review, in which the devise over was held to refer to a death without issue, whenever it might occur, of the devisee. The cases so cited were Gambrill v. Forrest, 66 Md. 17; Devecmon v.Shaw, 70 Md. 220; Lednum v. Cecil, 76 Md. 150; Hutchins v. Pearce, 80 Md. 434; Weybright v. Powell, 86 Md. 577, andWilson v. Bull, 97 Md. 137.

The improbability that the testator meant to give to his wife a portion of the shares of the children who might at any time die without issue, is strengthened by the fact that in four-tenths of the estate the children's shares were only in the remainder after his wife's death. It is further strengthened by the fact that what is devised over on the death of a child without issue is his or her "portion or inheritance in my estate," which if it means anything, as was said of a similar expression construed inFairfax v. Brown, supra, means a portion of his estate while it existed as such and not many years after its distribution as would necessarily be the case in the not improbable event that one or more of his children should long survive him and then die without issue.

The authorities generally agree that where the limitation over is simply upon the death of the devisee, uncoupled with any contingent event, the will must be construed to mean a death in the lifetime of the testator, Geiger v. Engle,supra. In Gerting v. Wells, 100 Md. 97, we held that the limitation over in that case which was upon the death of the devisee "without legal heirs or heir" was precisely the same in principle as that in the prior case of Hammett v. Hammett,43 Md. 311, where the expression used in making the limitation over was simply "should one of them die" with no provision as to the failure of issue. A fuller statement of the same principle of construction and the cases supporting it may be found in 17 A. E. Encyl. of Law, 537, and in Vanderzee v. Slingerland,103 N.Y. 41, but we do not pursue this subject further as we rely for our conclusion mainly upon the will itself read in the light of the circumstances surrounding the testator when he made it.

The construction of the will adopted by us is strengthened by the proposition, so often reiterated by this Court, that where the devise itself is made directly, in unqualified terms adequate to convey a fee, to persons in esse and capable of taking at the death of the testator, it vests in them at his death.Dulaney v. Middleton, 72 Md. 75; Webb v. Webb,92 Md. 101; Cox v. Handy, 78 Md. 108, and Fairfax v. Brown,supra. Our view receives additional support from the uniform indisposition of this Court to hold that an estate given by will in general terms adequate to convey a fee, which includes thejus disponendi of the thing devised, may be cut down to a life estate or a defeasible fee by a subsequent clause in the will.Gerting v. Wells, supra; Combs v. Combs, 67 Md. 11;Benesch v. Clark, 49 Md. 504; Rogers v. Cobb, 89 Md. 167;Numsen v. Lyon, 87 Md. 41.

The limitation over upon the death of a child without issue, occurring as it does in the will before us, must be held to apply also to the children's shares in the remainder in the four-tenths of the estate given to the widow for life, and must receive the same construction in that connection. If the limitation over had in terms applied only to that portion of the estate much authority could have been found in the Maryland cases cited by us for holding that the children's death without issue upon which the limitation was predicated meant a death during the life of the widow, as the children were only to come into possession of the remainder at her death. Indeed it may be conceded that such would have been the weight of authority in that event. But the limitation over is not in terms limited to the devises in remainder nor can its operation by any reasonable construction be restricted to those devises. The will in plain terms attaches the limitation to all of the property real and personal, which the children take under the will, the descriptive words used by the testator, in the limiting clause, being "their portion orinheritance in my estate," unaccompanied by any expressions of exception or restriction. The testator evidently intended the limitation over to affect all of the property of every kind taken by his children under his will.

The fact that, the limiting clause of the will applied in express terms to the entire share of each child in the father's estate which was largely composed of personalty, and that no trust was created or other provision made by the testator for the preservation of the contingent remainders over in the personalty to take effect after the death without issue of any of the children, affords further proof that the testator did not refer to or intend such a death whenever it might occur.

We are aware that in a number of comparatively recent cases this Court in construing limitations over in wills upon the death of the first taker without issue has shown an inclination to hold them to refer to such a death whenever it might occur, but in those cases either the context of the will was silent or indicated the construction adopted in the particular case. We do not mean to weaken or disturb the authority of those cases by the conclusion to which we have come in the present one, for we find in the contents of Mr. Lumpkin's will the several indications, to which we have already referred, that he intended the limitations over, of the portions of his estate given by him to his respective children, to become operative only in the event of their dying in his lifetime.

The decrees appealed from will be reversed and the cause remanded to the end that the original case may be reopened and the appellant made a party defendant thereto and that that case and the one on the bill of review be consolidated and the final decree of January 15th, 1906, be so modified as to construe the will of Robert G. Lumpkin in accordance with the views herein expressed, but that the partition thereby made, be allowed to stand in so far as the division of the ground rents thereby made is concerned.

Decree reversed with costs and case remanded for furtherproceedings in accordance with this opinion.