Stein v. Stein

80 Md. 306 | Md. | 1894

McSherry, J.,

delivered the opinion of the Court.

This is an appeal from a pro forma decree passed in a special case stated under rule forty-seven of the General Equity Rules. The facts are these: Annie Stein has a dower interest in certain property, which property was directed by the will of her deceased husband to be divided into four equal parts that were then given in trust for the testator’s children. This property cannot be divided, and the widow’s dower cannot be laid off. To carry out the provisions of the will, a sale and a division of the proceeds is necessary. The questions which the Court is asked to determine are: Can the trustees, appointed by a decree of a Court of Equity to make sale of this property for the purposes of a division, sell the same free from the widow’s dower, without her consent, upon awarding to her for her life one-third of the income derived from the invested proceeds of such a sale ? Or, if the widow should consent to the sale, will she become entitled during her life to one-third of the income derived from the invested proceeds of such sale ? A pro forma decree was passed adjudging that upon a sale of the property, with or without the consent of the widow, she would become entitled to one-third of the income derived from the proceeds of sale; indieu of dower. From that decree this appeal was taken.

It is perfectly obvious that this pro forma decree is wrong. Before, however, proceeding to state the reasons in support of this conclusion, we must advert to the fact that the questions we are called on to decide, have been propounded in a cause in which the same person appears upon both sides of the controversy. Whether the controversy be amicable or hostile, such a procedure is anomalous. A person cannot be both plaintiff and defendant at the same time in the same cause. Diverse and conflicting interests .cannot be represented on opposite sides of the docket by the same' individual at one and the same time. This Court had occasion to express .its strong disapproval of such a course in Owens & Crow v. Crow & Hubbard, 62 Md. 497. It was there said, and we now repeat: “We feel obliged to express our disapproval of a practice which has to some extent prevailed, namely, that of putting the same individual on opposite sides of the record. * * * * * It is a solecism in jurisprudence for a party to sue himself. The same will would control both the prosecution and the defense, and there would be no real contestation. There is no propriety in such a practice, and no necessity for it. * * * * We cannot tolerate such a practice.”

Coming now to the questions propounded, it is clear that there are but two conditions under which, in proceedings like this, the inquiry as to what disposition is to be made of the widow’s dower can arise. And these are, first, where she consents to a sale of her deceased husband’s real estate, clear and discharged of her dower right; and secondly, where she does not so consent. In both instances the law .is explicit. As to the first, it is prescribed by sec. 43 of Art. 16 of the Code, that “ in all cases where lands and tenements are to be sold under a decree, and the widow, who is entitled to dower in such lands, will consent in writing to the sale of the entire estate therein, the Court shall order the same to be sold free from any claim of dower, and shall allow the widow a portion of the net proceeds of such sale, not exceeding one-seventh and not less than one-tenth.” This section comprehends all cases where the widow consents to a sale free of her right of dower. In every such instance, therefore, the Legislature has fixed within defined limits the amount to which she shall be entitled in lieu ot dower, and no judicial tribunal has any power or authority to vary or change those limits. Hence, when the widow consents to a sale being made, free of her dower right, she must take in lieu of that dower precisely what the statute prescribes, and she is entitled to nothing more, nor can she be required to accept anything less. On the other hand,mi she does not consent to such a sale, then she may have her dower laid off, under sec. 45 of Art. 16, or under sec. 62 of Art. 46 of the Code. But if this be not done, and a sale be made without her concurrence, it must be made subject to her right of dower. The fact that such a sale would yield smaller proceeds than an unincumbered title would produce, can have no influence on the question. The widow has the option to unite in the sale or not. If she declines to do so, her status is fixed by the law and she cannot be coerced; if she agrees to do so, then the amount to which she is entitled in lieu of her dower is settled and fixed by the Code. She cannot, therefore, consent to a sale and at the same time claim a larger proportion of the proceeds than the statute allows her where she does consent.

The case of Maccubbin v. Cromwell, 2 H. & G. 443, was much relied on by the appellees, but it has no application to the question before us. When that case was decided in 1828, the statutes in force in Maryland, with respect to sales free from the widow’s dower, were much less comprehensive than they now áre. At that time the Act.of 1816, ch. 154, relating to decrees for the sale of the real estate of minors, the .Acts of 1818,- ch. 193, and 1819, ch. 183, respecting the sale of real estate to save the personalty, and the Act of 1820, ch. 191, reducing to a system the laws to direct descents, were the only statutes relating to the subject. The case of Maccubbin v. Cromwell was not within the purview of either of these Acts, for the decree was passed upon a bill filed to set aside a conveyance alleged to be fraudulent as against creditors. But now, however, under sec. 43 of Art. 16, and sec. 63 of Art. 46, every case involving a sale of the widow’s dower by her consent is fully covered.

(Decided December 19th, 1894.)

It follows from what we have said, first, that the trustees appointed to make sale of the property referred to in the case stated have no power to make the sale clear of the widow’s dower without her consent in writing; and secondly, that if they sell clear of her dower with her consent, they can award her, in lieu of her dower, no greater sum than the statute prescribes. This being so, the decree which undertook to give her one-third of the income derived from the proceeds of a sale made with or without her consent was erroneous and must be reversed with costs.

Decree reversed with costs above and below and cause remanded.