DocketNumber: [Nos. 57, 58, October Term, 1939.]
Judges: Bond, Offutt, Parke, Sloan, Mitchell, Shehan, Johnson, Delaplaine
Filed Date: 11/29/1939
Status: Precedential
Modified Date: 10/19/2024
The case is one for the adjusted distribution of a testator's property and estate after renunciation by his widow of all benefits under the will. The Circuit Court of Calvert County, in equity, upon a bill by the executor, both in his own right and as executor, assumed jurisdiction to give instructions on the problems arising, and the appeals are entered from its decree.
The testator, Henry D. Dowell, of Calvert County, died leaving a will by which he first devised and bequeathed to his widow, for her life or widowhood, all his estate of every kind except as provided subsequently in the will, with remainder in what is called the Home Farm, and all the personal property included under that clause, to three daughters of the couple. Another farm, called the *Page 372 Owings or Chaneyville Farm, he devised to another son, H. Wilson Dowell, in fee. To another son, John Milton Dowell, he gave a mortgage, or if it should be paid off, a money equivalent. And to children of a third son, James Albert Dowell, he gave a mortgage on property of that son, or a money substitute if it should be paid off. Sums of money were bequeathed to the daughters. And a final, or sixth, clause devised and bequeathed to the Prince Frederick Bank of the Eastern Shore Trust Company, now the County Trust Company, in trust to pay the income to the widow for life, with remainder to the six children, all the cash which he might leave and all mortgages and other securities for debt he might own at the time of his death, except mortgages and cash previously bequeathed, and cash needed for expenses of administration and payment of debts.
The widow having renounced the will (Code, art. 93, secs. 311-313), there are questions of reimbursement of the specific devisees and legatees for loss by subtraction of the widow's share, of acceleration of the remainders in the first and final clauses, and of a right in the son, H. Wilson Dowell, to take the farm devised to him, not merely under the will, but under a contract with his father, which the son asserts as withdrawing that farm from the effects of his mother's renunciation. In case it should be decided that there was no such effectual contract, that son is one of the claimants to reimbursement out of other parts of the estate.
The chancellor was unable to find sufficient proof of the contract, and held that the widow took her third interest in the particular farm upon her renunciation, as well as in all other property of the decedent. And upon the authority of the decisions in Hinkley v. House of Refuge,
As to the claim of H. Wilson Dowell to contract rights in the Owings or Chaneyville farm, free and above any rights in his mother by virtue of her renunciation, this court, passing a question whether such a contract to devise might be enforced in this proceeding, concurs in the conclusion of the chancellor that it has not been proved. The contention is that the father made the agreement in consideration of the son's taking over the working of the farm at a time when it had not been profitable to the father, and producing income from it. The chief testimony to the agreement is that of the son's wife. The son himself testified to it over objection, but this testimony must be disregarded under the statute forbidding the claimant to testify after the death of the testator. Code, art. 35, sec. 3. Other witnesses on his behalf testified only to having heard the father say, in conversations in the past, that he intended to devise to the son as he did. But the testimony of an agreement is strongly contradicted by direct testimony and circumstances in evidence. It is not necessary to state more than the result of it, as the court sees it. The son had been unsuccessful in keeping a store during seven or eight months, and came to the father, without a home of his own and without employment, and it was this plight of his that persuaded the father, solely for the relief of the son, to put him on the farm. Another son had to be transferred from this farm to another to bring it about. Such a claim as the son now makes, when the other party's testimony is silenced by death, is always heard with hesitation and disfavor. Soho v.Wimbrough,
In Hinkley v. House of Refuge,
That case is closely similar to the case now being considered; in principle, it is the same. All the devisees and legatees here, including remaindermen, are to suffer diminution in the properties in which they were to have ownership sooner or later, and under the decree below they are to suffer it in equal proportions. The remainders are accelerated, but only to an extent. Payment of the reimbursement may release them before the death of the widow. If they were to be paid now they would receive, in the acceleration, an addition to their shares over and above that which was provided in the will. This has been denied them, and the suspension of their taking under the will is continued so far as may be necessary to pay the indemnification or compensation until the death or remarriage of their mother. And the chancellor has in his decree adopted the same solution.
In the more recent case of Mercantile Trust Co. v. Schloss,
The decision in Hinkley v. House of Refuge, supra, cannot be distinguished from that of the chancellor in this case, and that in Mercantile Trust Co. v. Schloss, supra, is authority for the rule of indemnification when it can fairly be made; and it appears fair in this instance. The court cannot find that there was error in the decree giving it effect.
In this case, too, it is questioned whether indemnification should not have been made from the residuary estate alone. But the final clause in the present will is not the ordinary residuary clause; it rather partakes of the nature of both a specific and a residuary legacy, and at least does not manifest an intention, as in Mercantile Trust Co. v. Schloss, that the preceding devises and legacies be paid as a whole before any gift in the last clause. And the equitable rule of indemnification as generally applied requires that all benefits provided in the will for the widow should be applicable without distinction. The decree doing so here is found correct in that respect.
The valuation of the Owings or Chaneyville farm serving as the basis of calculating the reimbursement of H. Wilson Dowell, the devisee of it, is contested by him. He valued it in evidence at $12,000, and there were witnesses to support his estimate and witnesses contradicting *Page 377 it. The chancellor adopted a valuation of $10,000, and so estimated the compensation payable at $3333. This seems questionable, if questionable at all, only because it is possibly too high for the evidence, but in any event it is reasonably close to the result of the proof, and the conclusion of the chancellor cannot be reversed on the record.
Decree affirmed, each appellant to pay his own costs.