67 Md. 94 | Md. | 1887
delivered the following opinion.
This case was assigned to me to prepare the opinion of ■the Court therein. The record is a large one and the testimony voluminous. The questions of l'aw involved are important, and those of fact depend upon a close scrutiny ■of the testimony and great care in deducing conclusions therefrom. The duty thus imposed I discharged to the best of my ability, but the conclusions I have reached have not in all respects met the approval of my brothers who heard the case with me, and they are in favor of the •affirmance of the decree in toto. The parties, however, in this, as in every other case, are entitled to the best considered judgment of each Judge who heard it, and instead of a silent dissent I have deemed improper to express my views at some length, the excuse therefor being such as I have stated.
The bill was filed by Susanna Y. Gaither to have dower laid off and assigned to her in all the lands of her deceased husband, James B. Gaither, who died in February, 1885, and the only controversy made.in this Court relates to her right to dower in what is called the “ Locust Grove farm” containing about one hundred and fifty acres.
Mr. Gaither was twice married. His marriage with the ■complainant took place on the 17th of June, 1879, about seven months after the death of his first wife. He had no children by either marriage, but had taken to his home when she was a child, Emily Y. Cecil, a grand-niece of his first wife. This child was treated as a daughter by him and his wife, and was raised and educated by them as such. They were both devotedly attached to her, and she with equal devotion and affection regarded them as her parents. The legal title to all the lands mentioned in the bill, except this Locust Grove farm, was devolved
Erom these facts, about which there is no dispute, it is apparent that Mr. Gaither was never vested with the legal title to this farm. By his purchase from the trustees and payment of the purchase money he acquired an equitable interest therein, but, so far as appears from the face of the papers, he held such equitable title at least not longer than up to the date of the deed from the trustees. If then there was nothing more in the case, there would be no difficulty in deciding that the complainant was not entitled to dower in this land. In this 'State the right to dower has always been regulated by the common law, with the single modification thereof made by the Act of 1818, ch. 193, which provides that “a widow shall be entitled to dower in lands held by equitable title in the husband, but such right of dower shall not operate to the prejudice of any claim for the purchase money of such lands, or other lien on the same.’.’ Code, Art. 45, sec. 5. This statute was construed by the Court of Appeals in
But the complainant charges in her bill that her deceased husband adopted the plan of having this farm conveyed to Emily Y. Cecil, for the purpose of cheating and defrauding her of her dower in his estate; and it is contended that the whole arrangement was a scheme devised and carried out to accomplish that purpose ; that Miss Cecil was made the mere nominal holder of the legal title while Gaither remained the real and substantial owner, and that such was the understanding between them when the transaction took place. Before considering the testimony upon which this grave charge is founded, it is well to ascertain clearly what the law upon this subject is, and in doing this, reference must be made to the Maryland decisions only, because they alone are binding authorities in the case, and it would seem that they have settled the question.
In Hays vs. Henry, 1 Md. Ch. Dec., 337, a bill was filed by a widow for relief against certain conveyances of leasehold property, (a house and lot,) as made in fraud of her rights. The husband was living apart from his wife, and with a woman by whom he had children. He bought the property with his own money, and had it conveyed to the woman who a few days afterwards conveyed the same to him upon certain trusts; but this trust deed contained a covenant that he should hold and use the property without hindrance from her, and he lived and died in the
In Dunnock vs. Dunnock, 3 Md. Ch. Dec., 140, there was a bill by a wife for alimony out of the estate of her husband who had abandoned her, and the charge was that he had conveyed away by bill of sale c'ertain negro slaves, with a design to defraud her of her right to a reasonable maintenance, and of all interest, present or prospective, in these slaves. The Chancellor found upon the proof that the bill of sale was absolute on its face, was accompanied with delivery of possession, and that there was no such reservation of right in the husband as to “defeat his unquestionable right to give away his personal property to the prejudice of his wife’s claim to a distributive share alter his death,” and denied the relief prayed. There was parol proof of a written agreement between the grantor and grantee that the latter should return the negroes to the former when he should call for them, or forfeit $1200. This proof was not admitted, but the Chancellor held that such an agreement would not have affected the case even if it had been proved, because it did not bind the grantee to return the property, but only to do so or pay $1200. In this case the Chancellor re-affirmed the law as he had stated it in Hays vs. Henry, and in the course of his opinion, said : “ It is not enough to show that the conveyance, assuming it to be without a valuable consideration, was made to defeat the claim of the wife ; that the law allows the husband to do by gift, so far as his personal estate is concerned,' provided there be no right reserved to himself, and is not a mere fiction, by which, not divesting himself of the dominion over his property during his life, he attempts after his death to deprive her of her distributive share thereof.”
In Sanborn vs. Lang, 41 Md., 107, a widow filed a bill to vacate a deed of real and personal property executed, as she averred, by her husband, in contemplation of his death, and with the avowed and express purpose of depriving her of her distributive share of his estate. It was ■conceded she was entitled to dower in the real estate, the
The fair conclusion from these authorities is, that a husband may alienate his personal property and his equitable interest- in land, either by sale or gift, without the concurrence or assent of his wife, and if the transfer be absolute and unconditional, and without any reservation of interest in, or control over, the property to himself, and if the-possession be parted with or delivered in pursuance of the conveyance, it is valid even though his intent and purpose in making it, may have been to deprive his wife of her dower or thirds therein, provided there be no fraudu
The question then is, does the proof in this record make out a case of such fraud in the transaction relating to this farm ? The testimony is voluminous, and all that can be expected in an opinion is a statement of the facts bearing upon the material points, established by the preponderance of proof.
It appears then, that at the date of Mr. Gaither’s second marriage, the favorite and petted child, Emily, had grown to womanhood, and after the marriage, she and the new wife did not get along well together, though there is no proof of any open rupture between them. Mr. Gaither then determined to provide her with a separate home and residence, and accordingly purchased this farm, and had the title conveyed to her, in the manner already stated. The deed from the trustees was absolute on its face,
But it -appears that on the 12th of June, 1879, five days before his marriage to the complainant, he also conveyed certain personal and real property in Gaithersburg to Emily V. Cecil, the consideration therefor, as stated in the deed, being love and affection, and “her devoted attention to me ” (the grantor) “for years past.” But by this deed he reserved a life estate in the property to himself, and moreover, did not deliver it until some weeks or months after his marriage, and no question is made as to the complainant’s right to dower in this real estate. He also took from the grantee an agreement in writing to re-convey this property to him in fee simple, at any time he
The present complainant was not a party to that suit, and of course is not bound by the decree or by anything said in the Court’s opinion. But the record and testimony taken in that case was offered in evidence in this, and is therefore to be considered. The testimony which bears upon the question whether there was any fraudulent participation on the part of Mrs. Rabbitt in the supposed or actual intent of Mr. Gaither to defeat his wife’s right of dower in this land, is mainly that of Mr. Gaither and Mrs. Rabbitt. The latter was not examined as a witness in the present case. She died before it-was decided,
The case then is one in which a husband has seen fit to mate in his. life-time an absolute donation to another of his equitable interest in land. He had the legal right to do this, even if his purpose was to defeat his wife’s claim to dower; and having done it, the claim is defeated, unless the long-established construction of the Act of 1818, as well as settled rules and principles of evidence and law, are to be overturned and set at naught, for the purpose of giving the widow relief in this case. But this it is not competent for the Court to do, no matter what the apparent or supposed hardship of the particular case may be. It is for the Legislature, if it sees fit, to place equitable interests in land upon the same footing as regards the right of dower therein, as legal interests, but this it has not yet done, and it is clear that the Courts ought not to usurp legislative power. They can construe a statute, but having once clearly and definitely done so, and that construction having been acquiesced in and acted upon for more than forty years, it is for the Legislature to change the statute, rather than for the Courts now to change its construction, even if they should deem it erroneous. There can, however, be no reasonable doubt as to the
These are the views I entertain both as to the law and the facts of this case, and in my opinion so much of the decree as directs the commissioners to lay off and assign dower to the complainant in the Locust Grove Farm should be reversed, and in other respects affirmed.
In this result, however, a majority of my brothers who heard the case with me, do not concur, and I am instructed by them to say, that if it be conceded, (without, however, so deciding,) that it was necessary to prove that Mrs. Rabbitt participated in the fraudulent intent on the part of Mr. Gaither to defraud- the appellee of her rights as his wife, they are of opinion that the evidence in the record shows that she had knowledge of such fraudulent intent at the time this farm was conveyed to her, and participated therein. They are therefore of opinion that the decree should be affirmed in its entirety, and it is accordingly so ordered.
Decree affirmed, and cause remanded.