This is an appeal from an order of the Orphans' Court of Howard County passed on the 6th day of March, 1906, and involves a construction of ch. 331 of the Acts of 1898.
On the 19th day of November, 1903, Henry Winter filed a petition in the Orphans' Court of Howard County, as surviving husband of his wife, Annie M. Winter, deceased, claiming one-third part of the personal estate in the hands of the appellee, her executor, for distribution.
Mr. Winter died on the fourth day of January, 1905, and the appellants, his executors, by a subsequent petition filed on the 7th day of February, 1906, claimed therein, one-third of an additional sum of $29,995, collected by the executor since the filing of the original petition.
The facts of the case are substantially as follows: Mr. and Mrs. Winter were married in the month of October, 1869. She died on the 10th of November, 1902, leaving a last will and testament, which was admitted to probate in the Orphans' *Page 495 Court of Baltimore City, and letters testamentary were granted to the executor named in the will. She left surviving her, a husband, Henry Winter, a son, John S. Gittings, the executor named in the will, and the appellee here, and a granddaughter, Eleanor A. Moale.
By her will she disposed of a large estate, but made no devise or bequest of either real or personal estate to her husband, Henry Winter.
The personal estate, in the hands of the executor, consists of the following item:
Property and cash shown in inventory returnedIt is contended, upon the part of the appellants, that under ch. 331 of the Acts of 1898, the surviving husband, by virtue of his survivorship, is entitled to one-third of his wife's personal estate, notwithstanding the provisions of her will, to the contrary.11th of April, 1902 ...................................... $52,446 86 Additional inventory returned on 18th March, 1905 ........ 7,000 00 Cash collected from decree of the Circuit Court for Howard County and interest thereon ............................ 29,995 66 __________ Total ........................................... $89,442 12
On the part of the appellee, it is claimed, that chapters 331 and 457 of the Acts of 1898 are prospective and not retroactive in their operation, and have no application to this case.
By sec. 7, ch. 457, of the Acts of 1898, it is provided, that every husband shall acquire by virtue of his marriage an estate for his life, in one-third of the land 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 * * * nor shall any conveyance of such lands by the wife alone bar such estate of the husband therein.
This statute was before us in Harris v. Whitely,98 Md. 443, in relation to certain real estate, owned by the wife before the passage of the Act, and we there said that the language of the Act 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. *Page 496
And so in Slingluff v. Hubner, 101 Md. 652, where the marriage of the party had taken place and the property sought to be affected by dower right in the wife, had been acquired and become vested in the husband who was then living prior to the Act of 1898, it was held that the right of the parties were not affected by the Act of 1898, ch. 457, but must be determined according to the pre-existing law.
We come, then, to the Act of 1898, ch. 331, passed at the same session of the Legislature. By the 4th section of this Act it is provided, that the following new section be and the same is hereby added to Article 93 of the Code of Public General Laws, to be known as sec. 306A.
By this section it is provided, that the provisions of the preceding secs. 291 to 306, both inclusive, relating to the rights of widows in the estates of their husbands, shall apply to and be enforced in favor of surviving husbands, so as to give to, vest in and confer upon surviving husbands the same rights in the estate of their deceased wives which said secs. 291 to 306, both inclusive give to, vest in, and confer upon widows in the estates of their deceased husbands.
It seems to us that it was the clear intention of the Legislature by this Act, to fix and determine by statute, the interest and estate of the surviving husband in the personal estate of the wife, dying after January 1st, 1899, without regard to the date of the marriage, that is as the express language of the Act states, to give to, vest in and confer upon surviving husbands the same rights in the estates of their deceased wives as they would have in his personal estate, if they had survived him. As stated by the appellant in his brief, the section is not retroactive, it does not apply to any case where a husband had survived his wife prior to the Act. Until the death of the wife in the lifetime of her husband, the Act has no operation, but at her death and upon and by virtue of his survivorship, aud independently of the date of the marriage, the husband's rights come into being.
There is nothing in the case of Harris v. Whitely, orSlingluff v. Hubner, supra, in conflict with this construction of the Act, and those cases have no application here. *Page 497
It is free from all constitutional objection and carries out the obvious intention of the Legislature in its passage.
Applying, then, this construction in the case at bar, the questions as to the rights of the surviving husband in his wife's personal property, are free from difficulty.
It is clear that the twenty-nine thousand dollars recovered in the case of Gittings v. Winter, in the Circuit Court of Howard County, is no part of Mrs. Winter's estate. The fund at the death of Mr. Winter was to go the heirs of the wife, the children of Mrs. Winter. This was established by the decree in that case. Winter v. Gittings, 101 Md. 194; Schroeder v.Loeber, 75 Md. 195.
The estate which Mrs. Winter received under her father's will, was in trust for her sole and separate use for her life and after her death in trust for such of her children as she should limit and appoint to take the same. This power of appointment was exercised by her will of September 30th, 1898, so the property derived from the trust estate, is also free from the husband's claim.
As Mrs. Winter died on the 10th of November, 1902, after the Act of 1898, ch. 331, took effect, the personal property whereof she died seized and possessed in her own right will be liable to the claim of the surviving husband, under the Act. Grabill v.Plummer, 95 Md. 56.
Mr. Bishop in his work on Married Women, sec. 49, says: Rights under laws of this sort are to be determined by the law existing when the death takes place. Statutes making such changes are not retrospective, neither do they to any extent divest vested rights.
For these reasons, the order of the Orphans' Court of Howard County, dated the 6th of March, 1906, dismissing the petitions filed in this case, will be reversed and the case remanded, for further proceedings, in accordance with this opinion.
Order reversed and cause remanded with costs.
(Decided June 14th, 1906.) *Page 498