Appeal from the Orphans' Court for Carroll County; Frock, Mathias and Taylor, JJ.
Brune, C. J., and Henderson, Prescott, Horney and Sybert, JJ. Prescott, J., delivered the opinion of the Court.
The Orphans' Court for Carroll County denied an executor's petition, praying that he be authorized to execute and deliver a deed for a small parcel of real estate to the alleged wife of the deceased, and he has appealed.
The only question involved is whether a widow, who is ignored in her husband's will, is entitled to "four thousand dollars or its equivalent in property, or any interest therein at its appraised value," under the provisions of Code (1963 Cum.
Supp.), Article 93, Section 333, before a judgment creditor of the husband's estate is paid.
Harrison E. Fox died, testate, on February 11, 1961, leaving no descendants, parents, brothers, or sisters. He devised and bequeathed his entire estate to his friend Arthur Lefteris, the appellant, individually. The appellant alleges that Fox was survived by a widow, Cynda F. Fox, from whom he had been separated for many years. The appellee contends the record is devoid of any proof that she is the widow of the decedent, but, for the purposes of this appeal, we shall assume, without deciding, that she is.
The widow was not mentioned in Fox's will. His estate consisted of cash and personal property of the value of some $4,020 and a parcel of real estate appraised at $2,000, from which rental income was added to the estate. Subsequent to Fox's decease, appellee obtained a judgment against his estate for $5,540. This judgment seems to be the only "claim" against the estate, and the above mentioned parcel of land is the only real property left by the decedent, but the record extract fails to disclose the precise status of the personal property after the payment of taxes (if any), and costs of administration. However, we may safely assume, and we do assume, that the personal estate is insufficient to pay said taxes, costs and appellee's judgment. The widow made no election to take dower under Article 46, Section 4, nor did she renounce under Section 329 of Article 93, infra.
From the above, it may be seen that several statutory provisions may possibly be involved: Code (1957), Article 45, Section 6 (dower rights of widow); Article 46, Sections 3 and 4 (rights of surviving spouse where decedent died testate -- dower not abolished -- election to take dower and renunciation of other rights in real estate); Code (1963 Cum. Supp.), Article 93, Sections 329 and 333 (renunciation of will by widow -- not required if nothing passes to surviving spouse by devise).
The appellant singles out Section 333,*fn1 supra, and traces it
back to its origin in Chapter 101 of the Acts of the General Assembly of 1798. He points out that the section originally stated that "it being the intent of this act and consonant to justice, that a widow accepting, or abiding by a devise, in lieu of her legal right, shall be considered as a purchaser with a fair consideration," and it remained unchanged until 1939, when it was repealed and re-enacted in substantially the same form as it is today. (An amendment in 1959 substituted "four thousand dollars" for "two thousand dollars," and one in 1963 made the section also applicable to surviving husbands.) He then argues that the plain terms of the statute provide that the widow shall have "four thousand dollars or its equivalent in property," and these provisions should be treated the same as a widow's right of dower*fn2 in that the widow's rights derived therefrom should have preference over the husband's creditors. He cites several early Maryland cases which hold that a widow is "preferred to creditors to the value of her dower." We will point out later that we have no quarrel with the language just quoted.
We fear, however, that it would be an oversimplification of the case to confine our consideration thereof to Section 333 alone, as the appellant has. In order to arrive at the true meaning of the section, it is necessary to examine several other statutory provisions, which are closely related to it, and some of the decisions of this Court construing them. For ...