158 A. 347 | Md. | 1932
The appellee, husband, and now widower, of Mary C. Thiess, deceased, has obtained a decree for sale of leasehold property held by the wife in her lifetime, and for distribution of one-third of the proceeds to him as his marital share; the remaining two-thirds to be divided among children and grandchildren of the couple. The children and grandchildren, on appeal, contend that as the property was vested in the wife only for and during her life, with remainder to them, the children and grandchildren, no marital rights in the husband attached, and the remaindermen are entitled to the whole. And to this the husband replies that while, by the terms of the conveyance, the title in the mother may have been restricted to a life estate, that estate had joined with it all rights of disposition and enjoyment regularly incident to complete ownership, except the one incident of forming part of her estate upon death, and that incident was cut off in an effort by her to defraud the husband of his marital rights in her property, and the restriction to the life estate is, because of the fraud, ineffectual, and the estate is now to be treated as subject to those marital rights.
It appears from evidence taken that the husband left his wife and children in the year 1912. The wife brought suit for divorcea vinculo matrimonii, but her evidence of the ground for divorce was found lacking in the requisite certainty. Thiess v.Thiess,
In 1923, seven years before the death of Mary C. Thiess, Joseph T. Zoubeck and wife conveyed the property to her, "for and during the term of her natural life only with full power in the said Mary C. Thiess to lease, mortgage, deed or in any otherwise encumber the property absolutely and after her death and without the exercise of the aforesaid power then an undivided fifth interest each to Anna K. Whitehill, Charles H. Thiess, Rose K. Thiess, Leona Gately and a one-tenth interest each to Evelyn Thiess and Ferdinand G. Thiess as tenants in common." The habendum clause in the deed defined the estate in the same words. The wife died in 1930 without having exercised the power to dispose of or encubmer the estate. That by its terms the deed conveyed only a life interest to Mary C. Thiess, notwithstanding the addition of the powers, seems clear. Several decisions of this court settle the construction in that way. Benesch v.Clark,
There is no direct testimony that the wife and the grantor in this deed arranged the title so as to avoid the attaching of marital rights in the husband, but it may be presumed that they did so. Then the principles to be considered are those which have been recently explained in the case cited in argument. Jaworskiv. Wisniewski,
Our attention has not been called to any decision on exactly this state of facts, but there are analogous cases in which the conclusion seems supported. It has been a rule that a secret antenuptial conveyance made to avoid the attaching of marital rights may be set aside as a fraud upon those rights. Waters v.Tazewell,
Upon this reasoning we hold that the limitation to a life estate, and the remainder to the children only, in the present conveyance, are valid, and that the husband is entitled to no share in the property or the proceeds of its sale if it is sold.
Decree reversed, with costs to the appellant.