Appeal from the Circuit Court for Baltimore County; Berry, J.
Hammond, Prescott, Horney, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court.
The appellant, Lucile Mueller, sued the Fidelity-Baltimore
National Bank to recover the amount of two checks issued to her and her late husband, Harold E. Mueller (who died insolvent), by the estate of his father, Ernest Mueller, which the bank had cashed for the husband after he had forged the wife's endorsements. The checks represented the husband's portion of the proceeds of sale of real estate he had recently inherited from his father. The chancellor ruled that the wife had shown no right to any of the sales price which the checks represented and exonerated the bank by a summary judgment in its favor, since the person entitled to the proceeds of the check, the husband, had in fact received them. The wife appealed.
Filed as exhibits in the case by the bank were the will of the husband's father, and a copy of an agreement among his three children for the sale of the real estate owned by their father and the division of the proceeds among them, signed by Lucile Mueller and Harold E. Mueller. The bank, in accordance with Maryland Rule 421 a, requested the wife to admit for the purpose of the case the genuineness of the will and agreement and that "the statements in the aforesaid documents * * * are in accord with the facts."
The matters as to which admission was requested were conceded since the wife has never denied them or detailed her inability to admit or deny them. Rule 421 b. Also before the court was the wife's affidavit in support of her motion for summary judgment and affidavits of the lawyer for the father's estate. The wife's affidavit set forth that in the course of the administration of the estate of her father-in-law, Ernest Mueller, "she was asked to execute and did execute a deed conveying title to certain New Jersey real property theretofore owned by the said Ernest Mueller; that although she was led to believe that a distribution of money from the said estate would be made to her or jointly to her and her said husband, she has never received any such distribution"; that she has learned of the two checks payable to her and her said husband but has never seen them; that she has seen photostatic copies of the checks; and that her purported endorsements on them were not made by her and are not genuine.
The affidavits of the New Jersey lawyer who was counsel
for the estate of Ernest Mueller deposed that a deed dated April 3, 1957, conveyed fee simple property in New Jersey, of which Ernest Mueller was seized at his death, and that two checks drawn by him as counsel for the administratrix c. t. a. to Ernest Mueller to the order of Harold E. Mueller and Lucile Mueller on April 17, 1957, and May 28, 1957, in the respective amounts of $3,863.70 and $104.45, represent the "net proceeds of sale of that portion of the said property" to which Harold E. Mueller was entitled as heir or devisee "and Lucile Mueller for her dower interest in said property." He also swore that the checks were to distribute "to the payees the amounts to which they were collectively entitled in the said estate"; that the checks have been paid by the drawee bank and returned to him and bear on their backs what purports to be the handwritten endorsements of "Harold E. Mueller" and "Lucile Mueller," as well as the stamped endorsement of the Fidelity-Baltimore National Bank.
The real issue in the case is a narrow one. The appellant argues that, under the law of New Jersey, Harold Mueller and Lucile Mueller were joint owners of the checks (New Jersey apparently does not recognize a tenancy by the entirety in personal property.), and that joint payees of negotiable instruments are presumed to be owners in equal shares. She says, further, that upon the death of one joint payee the survivor becomes the owner of the whole interest in the instrument. The appellee does not seriously dispute these propositions, which we accept for the purpose of this decision, but says the presumption of equal ownership may be rebutted, and this would seem to be the law. In re Morrison's Estate, 261 N. W. 436 (Iowa); 11 C. J. S. "Bills and Notes" Sec. 659, p. 92. Cf. Hoover v. Haller, 21 N. W. 2d 450 (Neb.). The wife agrees that if she is shown to have no interest in the monies represented by the checks, she was not harmed by the forgeries and cannot recover because the person in fact entitled to the proceeds of the check was paid. Further, she agrees that if she has no interest, the court could properly enter summary judgment against her although the bank had not moved for summary judgment. Maryland Rule 610 d (1). Cf. Frush v. Brooks, 204 Md. 315, 322; Hamburger v. Standard Lime, Etc. Co., 198 Md. 336.
The case, as we see it, turns on whether it has been shown that the wife released her dower for the consideration to be paid to her husband alone and therefore should herself never have been made a payee on the checks. It is generally held that even if she herself receives no consideration, a wife's release of dower is valid and effectual if supported by consideration to her husband, although she may exact a consideration inuring to herself as a condition of releasing her dower. Jarboe v. Severin, 85 Ind. 496; Moore v. Hudson, 240 S. W. 383 (Ky.); Watkins v. Minor, 183 N. W. 186 (Mich.); 28 C. J. S. "Dower" Sec. 65, pp. 138-9. An agreement that a wife is herself to be compensated is not usually implied, and it has been held that the presumption is that the inducement for her release is the consideration paid her husband, at least in the absence of a special explicit agreement to the contrary. Murray v. Cazier, 53 N. E. 476 (Ind.) (rehearing den. 55 N. E. 880); Jarboe v. Severin, supra. It is clear that in New Jersey inchoate dower is a "present fixed and ...