Harris v. Whiteley

This appeal raises the question whether the appellee, Seth H. Whiteley, has by virtue of his marriage such an interest in his wife's real estate as is liable to be levied upon by his judgment creditors. There is no dispute as to the material facts of the case which are as follows:

The appellees, who are husband and wife, were married in 1881. Mrs. Whiteley in 1866, while yet unmarried, acquired under the will of her grandfather, John Brooks, a vested remainder in certain real estate subject to a life interest therein given by the will to her now deceased mother, Rachel H. Matthews. The life estate of Mrs. Matthews was not devised directly to her but was given to her brother, Isaac Brooks, in trust for her benefit. In a partition of the estate the portion of the real and personal estate applicable to the devise for the benefit of Mrs. Matthews for life with remainder to her daughter, Mrs. Whiteley, was set apart and delivered into the possession of Isaac Brooks, the trustee, who managed it until the death of the equitable life tenant, which occurred in March, 1903.

Shortly after Mrs. Matthews death the appellees filed an amicable bill in the Circuit Court of Baltimore City against Isaac Brooks, the trustee, reciting the nature and history of the trust and alleging that upon the death of Mrs. Matthews, the equitable life tenant, the appellee, Mary E. Whiteley, had demanded of the trustee the absolute delivery to her of all of the property which he had held in trust during the life of her mother and that the trustee, although not denying her right to the property absolutely, declined to transfer and deliver it to her without the direction of some Court of competent jurisdiction. The bill then prayed that the defendant be directed to make a full report of the property which he had held as trustee and to transfer it absolutely to Mrs. Whiteley.

The defendant answered the bill admitting its allegations and consenting to the granting of the relief prayed for, and he accompanied his answer with a schedule of the real and personal estate which had come to his hands or under his control as trustee. The case was by an order of Court referred to the Auditor and Master for a report and opinion thereon.

At that stage of the case the appellants, who held judgments for large amounts against the appellee, Seth H. Whiteley, intervened in the proceedings by a petition setting up the claim that Whiteley under and by virtue of sec. 7 of Art. 45 of the Code as amended by ch. 457 of the Acts of 1898 had a vested estate for life in one-third of all of the lands held or owned by his wife, the appellee, Mary E. Whiteley, including the real estate mentioned in these proceedings which she had acquired by devise in 1866, and that their judgments had become liens on said real estate to the extent of the interest of her said husband therein. The petition further alleged on information and belief that some portion of the personal property in the hands of Isaac Brooks, the trustee, consisted of the proceeds of real estate left to Mrs. Whiteley by the will of her grandfather and the petitioners claimed that they were also entitled to an equitable lien under their judgments on such personal property. The petitioners prayed to be made parties to the case and to have their alleged lien recognized and protected in any disposition that might be made under the Court's direction of the real estate and also of such portion of the personalty in the hands of the trustee as represented the proceeds of converted realty.

The appellees, Whiteley and wife, answered this petition denying the rights of the petitioners, and the trustees demurred to it. The issue upon the petition having come to a hearing the Circuit Court dismissed the petition with costs by the order from which the present appeal was taken. The appellees also set up in their answer and relied upon an ante-nuptial contract between Mr. and Mrs. Whiteley to exeeute a deed of trust of her real estate to a trustee for her sole and separate use, but we deem it unnecessary, in the view of the case which we take, to further advert to that instrument.

The fundamental question presented by the record is whether sec. 7 of the Act of 1898 operated to change the expectant interest in his wife's real estate which Seth H. Whiteley took by virtue of his marriage to her in 1881, under the laws then in force, into a present vested estate for his life which is liable to be levied on by his creditors. That Act as a whole repealed and re-enacted the entire Art. 45 of the Code relating to husband and wife and made radical changes in the property interests respectively acquired by each of them in the other's estate by virtue of entering into the marital relation. Sec. 7 of the Act which defines the interest in his wife's real estate which the husband takes by virtue of the marriage is the one upon which the appellants in their petition rely. That section is as follows:

Sec. 7. "Every husband shall acquire by virtue of his marriage an estate for his life in one-third of the lands held or owned by his wife at any time during the marriage, whether by legal or equitable title, or whether held by her at the time of her death or not, but such estate shall not operate to the prejudice of any claim for the purchase-money of such lands, or other lien on the same; nor shall any conveyance of such lands by the wife alone bar such estate of the husband therein."

The language used in this section would not, under the prevailing rules of construction, be held to manifest an intention on the part of the Legislature to give its provisions such retroactive operation as to disturb or impair existing property rights.

In Williams v. Johnson, 30 Md. 507, the Court say: "It is a sound rule of construction founded in the wisdom of the common law that whenever a statute is susceptible, without doing violence to its express terms of being understood either prospectively or retrospectively Courts of Justice invariably adopt the former construction. A statute ought not to have a retroactive operation unless its words are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature could not be otherwise satisfied; and especially ought this rule to be adhered to where such a construction would alter the pre-existing situation of the parties or would affect or interfere with their antecedent rights." The only reason urged by the appellants for ascribing to the Legislature an intention to give retroactive force to the Act now under consideration is that by its own terms it was not to go into operation until January 1st, 1899, about nine months after the date of its passage. This delay in making the law operative they contend was intended to afford to husbands and wives who did not wish their property rights to be affected by it an opportunity to remove the wife's real estate from its operation by suitable conveyances. That circumstance does not seem to us to afford sufficient ground for ascribing to the Legislature an intention to disturb the property rights of husbands and wives already existing at the passage of the Act.

Even if the Legislature intended, when making radical changes in some of the incidents of the marital relation by the Act of 1898, to affect the property rights of persons already married it was beyond their power to divest or impair in that manner any vested rights of property acquired under previously existing laws. Remington v. Metro. Savings Bank, 76 Md. 548; RockHill College v. Jones, Admr., 47 Md. 17-18; Bramble v.Twilley, 41 Md. 442; Wilderman v. Mayor, 8 Md. 556.

Assuming that the interest acquired by Mr. Whiteley in his wife's real estate at the time of his marriage in 1881, which under the Code of 1860 was a mere expectancy and not a vested estate, was subject so far as he was concerned to legislative control and might have been modified or diminished by subsequent legislation, it does not at all follow that the Legislature had the power to increase or enlarge that interest if by so doing the wife's vested interest in her own estate would be correspondingly diminished. Mrs. Whiteley acquired her estate in her property by devise and not as an incident of her maritalstatus or relation and she is entitled to the full benefit and protection of the proposition so strongly supported by the cases last cited. This Court has already held that even the husband's estate by the curtesy in his wife's realty, when it had become fixed by the birth of a child alive, was not impaired or affected by subsequent legislation regulating marital property rights although his curtesy was founded on and grew out of his marital relation. Porter v. Bowers, 55 Md. 215; Rice v. Hoffmon,35 Md. 344; Hoffman v. Rice, 38 Md. 285. The principle there asserted supplies with equal force to the estate of the wife in her realty which had become vested prior to the Act of 1898.

It is undoubtedly true that prior to January 1st, 1899, the date at which the Act of 1898 went into effect, Mrs. Whiteley held her real estate by a fixed and vested title subject merely to the expectant or inchoate life interest therein, conferred on her husband by the Code of 1860, which would have become consummate only in case she died intestate and he survived her. That interest of her husband was not a vested one nor was it liable to be levied on by his judgment creditors. Now if the Act of 1898 operates upon her case in the manner contended for by the appellants it enlarges the inchoate interest in her real estate to which her husband became entitled by virtue of his marriage to her in 1881 to a present and vested life estate in an undivided one-third of all of her holdings. Such an interest in her real estate, if he possesses it, is liable to be levied on by his judgment creditors and all of her realty would therefore be subject to a lien in their favor to the extent of his interest. She could not emancipate her property from that lien or alienate any of it by any of the methods by which she is authorized to dispose of her estate without satisfying the holders of the lien or procuring their consent or concurrence, although they are complete strangers to her and she is under no financial obligation to them. It cannot in our judgment be said that an operation of the Act producing such results would not interfere with or impair the vested rights of property acquired by Mrs. Whiteley in her real estate prior to the date of its passage.

In Rock Hill College v. Jones, supra, our predecessors said: "Rights that pass and become vested under the existing law of the land are supposed to be beyond the control of the State through its Legislature. The mere change of the law does not divest or impair the rights of property acquired before the change, even though the Legislature may intend the new law so to operate. A law says Puffendorff can be repealed by the law giver, but the rights which have been acquired under it while it was in force do not thereby cease. It would be an act of absolute injustice to abolish with a law all of the effects which it had produced." * * "This principle is of the utmost importance and no Court in the country has been more emphatic than this in giving sanction to it and denying validity to legislation which sought by retroactive operation to divest rights of property which had become vested before such legislation occurred."

Being of the opinion that it was beyond the power of the Legislature by the mere passage of the Act now under consideration to transfer to and vest in Mr. Whiteley or any other person an estate, however small, in Mrs. Whiteley's real property without her consent and without any consideration other than an already existing marriage, we must hold that Mr. Whiteley has no estate in that property upon which the appellants acquired a lien under their judgments. The order appealed from must therefore be affirmed.

As we are not now dealing with a husband's interest in real estate acquired by his wife after January 1st, 1899, nothing which we have said has any relation to such an estate.

Order affirmed with costs.

(Decided January 15th, 1904.)