The late John S. Combs, of Allegany County, Maryland, by his last will made the following provision for the plaintiff: "To my nephew, John Semmes Devecmon, five hundred dollars, also the law office in Cumberland, and ground on Washington street in said city, and known as the `Devecmon Law Office,' also all law books in said office." The testator also made provision for his wife and daughter, Mrs. Kuykendall, two of the defendants. To his wife and daughter, respectively, he devised certain real estate and bequeathed certain personal property, declaring that the provision made for his wife was to be in full of her interest in his estate, real and personal. The defendants just named were also made residuary devisees. The widow has renounced and elected to take her dower in the real and her legal share of the personal estate of her late husband. *Page 31 The defendant, Mrs. Kuykendall, is in possession of the estate she took under her father's will, except such part thereof as was received by the widow in kind by reason of her renunciation. The widow sued the plaintiff for her share of the rent of the office property devised to the plaintiff, and she recovered a judgment for three hundred dollars, whereupon the bill in this case was filed for the purpose of compelling the defendant, Mrs. Kuykendall, to make good to the plaintiff the loss he sustained by reason of the renunciation of the widow. The bill also prays that her dower may be ascertained. To this bill the defendants demurred, and the learned Judge below sustained the demurrer, but at the same time granted leave to the plaintiff to file, within thirty days, an amended bill to have the widow's dower ascertained in the property devised to him. The defendant having failed to avail himself of the leave thus granted, an order was passed dismissing his bill. From this order he has appealed.
Upon reason and principle, without regard to authority, it is difficult to understand why one legatee or devisee should be called on to make good a loss sustained by another under the circumstances disclosed by this record. It is true that Mrs. Kuykendall, who is asked by the plaintiff to pay to him the value of the dower, claimed certain money as her own which was disposed of by her father's will, as part of his estate, but we held inKuykendall v. Devecmon, 78 Md. 540, that she could not be allowed to maintain this claim, and at the same time claim an interest under the will. "She must give full effect to its provisions, so far as she is able," if she claims the benefit of its provisions in her favor. The plaintiff contends that it was the intention of the testator that he should have the office property in fee, free from all claims. This may be conceded. But it must also be conceded that Mrs. Kuykendall was also entitled to have what was devised and bequeathed to her free from all claims, including those of the plaintiff. It is difficult to perceive upon what theory or principle of equity the defendant, Mrs. *Page 32 Kuykendall, can be held liable for the loss which the plaintiff has sustained, when it is conceded, or must be, that the renunciation of the widow is the sole cause of it. Whatever claims Mrs. Kuykendall formerly set up to part of the estate the will disposed of, have been by this Court declared invalid, and she has, so far as we have been informed, given full effect to its provisions as construed by us. To hold her responsible for loss occasioned by the act of another is neither reasonable nor just. This view, however, is sustained by authority as well as reason. In the case of Darrington v. Rogers et al., 1 Gill, 410, it is said: "The election of the widow to stand upon her legal rights does, it is true, occasion loss to the appellants, but it is a loss resulting by operation of law, and against which the testator only could have provided an indemnity." As was said in the case just cited, "the testator has provided no change or substitution in the testamentary dispositions of his property in the event of his widow renouncing, and he having failed to do so, we cannot do it for him."
The question involved in this appeal has been so fully and clearly presented in the opinion of the learned Judge who decided this case below, that we will direct his opinion to be included in the report of this case.
Order affirmed with costs.
(Decided March 14th, 1899.)