author: Couch, J.,

text:
    W. C. & A. N. MILLER DEVELOPMENT COMPANY v. DALLAS A. HONAKER et ux.
    [No. 1412,
    September Term, 1977.]

      Decided July 17, 1978.

    The cause was argued before Mason, Wilner and Couch, JJ.

      Wade J. Gallagher, with whom were William H. Clarke, W. Barry Wraga and Galiher, Clarke, Martell & Donnelly on the brief, for appellant.

      Ferdinand J. Mack for appellees.
   Couch, J.,

delivered the opinion of the Court.

This case arises out of an injury received by a workman in the course of construction of a house in Montgomery County. A suit, alleging negligence, was brought against appellant, the general building contractor, by the workman and his wife. The workman was an employee of a subcontractor. Appellant pleaded the general issue and raised the defense of immunity under Art. 101, § 15 of the Maryland Workmen’s Compensation law. A motion for summary judgment was filed by appellant and granted by the circuit court. This decision was reversed by the Court of Appeals, which remanded the case. See Honaker v. W C. & A. N. Miller Development Co., 278 Md. 453, 365 A. 2d 287 (1976). After curing what it perceived to be the defect causing the prior reversal, appellant again moved for summary judgment, which the trial court denied. The case proceeded to trial and the parties agreed to have the jury determine the issues of negligence and damages while the court would determine the main issue presented here; i.e., was appellant the statutory employer of appellee within the meaning of Art. 101, § 62, Annotated Code of Maryland (1964 Repl. Vol.). The court denied appellant’s motion for a directed verdict and the jury found appellant negligent and awarded damages. Thereafter the court denied appellant’s motion for judgment n.o.v. The effect of the trial court’s ruling was that appellant was held not to be the statutory employer of Mr. Honaker. This appeal followed, where appellant raises two questions:

(1) Was the defendant (appellant) the “statutory employer” of Mr. Honaker?
(2) If Mr. Honaker was a statutory employee of appellant may his wife maintain an action for loss of consortium against his statutory employer?

Judge Orth, with reference to the facts in Honaker, revealed:

“The facts are not complicated. Miller was erecting a house on property it owned in Montgomery County, Maryland. It entered into a contract with Orndorff and Spaid, Inc. (Orndorff) whereby Orndorff agreed to furnish all labor and materials to install a roof on the house, gutters and downspouts, and a fireproof garage door, for a specified sum. Honaker was an employee of Orndorff. While working on the installation of the roof, Honaker sustained an accidental personal injury, alleged to be due to the negligence of Miller, Orndorff was covered by Workmen's Compensation insurance on the date of the accident under a policy issued by the State Accident Fund of Maryland. Honaker received Workmen’s Compensation benefits from Orndorff through the Fund as a result of his injury.”

With respect to the primary issue here, we find guidance from Honaker where Judge Orth also stated:

“It is manifest on the face of Sec. 62 of Art. 101,[] that in order to invoke its provisions there must be:
(1) a principal contractor [footnote omitted]
(2) who has contracted to perform work
(3) which is a part of his trade, business or occupation; and
(4) who has contracted with any other party as a subcontractor for the execution by or under the subcontractor of the whole or any part of such work.”

That Court found there was no evidence that Miller had contracted to perform work in the first instance, thus the contract between Miller and Orndorff was not a subcontract. They held Miller was not a “principal contractor”, Orndorff was not a subcontractor, and since the conditions prescribed by the statute did not exist, Miller did not become the statutory employer of Honaker. In short, Miller did not enjoy the immunity provided by § 15 of the Article.

Upon remand of the case to the trial court, appellant filed a second motion for summary judgment, attaching thereto certain affidavits and exhibits, including a “custom building contract” between it and Mr. and Mrs. DeJanikus, for whom the house was being built. Appellees, in opposing this motion, filed as an exhibit the building permit issued by the Montgomery County Department of Inspections and Licenses which showed appellant to be the owner-contractor. As noted above, appellant’s motion was denied and the matter proceeded to trial.

The record reveals that evidence was presented directly, or by stipulation, to show that appellant was in the construction and building business trade, undertaking to construct completed buildings and to give prices to its customers based on completed buildings. There was evidence that appellant would subcontract some of the work, including the roofing work, and include the cost of any subcontractors in the total contract price. It was also brought out that appellant was the owner of the lot upon which the house was to be built. It was further shown that there was a good deal of negotiation as to what the house would contain, including the provision for a slate roof, between appellant and Mr. and Mrs. DeJanikus before the execution of the contract; additionally, there were some 26 “extra work orders” accepted by appellant in writing as work progressed. There was uncontradicted evidence that appellant had not done any roofing work on residential homes for approximately twenty years, nor did it have the employees or equipment to install slate roofs. Appellee also produced evidence that tended to show that no general contractor in the Washington area was equipped to do slate roofing, and that they all had to subcontract this work.

The thrust of appellant’s argument on the basic issue is simply that it has supplied, on remand, that evidence which the Court of Appeals found missing in Honaker; i.e., a contract between it and the DeJanikuses requiring it to perform work, a part of which it subcontracted out to appellee’s employer. Appellant also contends that the Court of Appeals “implicitly” recognized that the work covered by the contract between appellant and appellee’s employer was part of appellant’s “trade, business or occupation” as required by Art. 101, § 62.

To these contentions appellee counters by arguing that the work subcontracted was not part of appellant’s business, nor did the Court of Appeals so hold. Appellee also raises a sub-issue that as appellant was the owner of the land, and had not contracted to construct the house but was a seller, appellant could not be a “principal contractor” as contemplated by Art. 101, § 62.

Before beginning an analysis of the questions posed, we observe that by § 63 of Art. 101 the Legislature has provided a guidepost for all who would be called upon to interpret the article. Section 63 provides:

“The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this article; but this article shall be so interpreted and construed as to effectuate its general purpose.”

This Court, as well as the Court of Appeals, has stated in the past that the Workmen’s Compensation Act should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. Keene v. Insley, 26 Md. App. 1, 337 A. 2d 168 (1975); Bayshore Industries, Inc. v. Ziats, 232 Md. 167, 192 A. 2d 487 (1963). We recognize that in giving this provision a liberal construction there will be instances where, as in this case, the employee will be found to be entitled only to workmen’s compensation, excluding any possible common law recovery.

Keeping this principle in mind, we now examine the threshold question of whether a lot owner/builder/seller may be a principal contractor. That question arises, of course, because of the evidence that appellant was the owner of the lot upon which the house was to be built and appellees claim that appellant only contracted to sell a completed house.

The evidence clearly shows appellant to be a builder of residential homes and as far as the DeJanikuses are concerned, a house built to the customer’s specifications. The mechanism used, a “custom building contract” which included the terminology “memorandum of sale”, does not, under the facts of this case, seem to require a conclusion that appellant could not qualify as a principal contractor under the Workmen’s Compensation Act. There appears to be no case involving the precise issue previously decided in Maryland, and the few cases in other jurisdictions which have dealt with the issue land on both sides of the question. 2 A Larson, Workmen's Compensation, § 72.31. We believe the better logic «requires a finding, on the facts presented here, that appellant is not disqualified from being a principal contractor merely because it owned the lot.

With respect to the main question, we conclude that the subcontracted work was a part of appellant’s trade, business or occupation. There can be no question but that appellant was a builder of houses, nor can it be doubted that it always subcontracted out the roof installations; indeed, it had been doing so for some twenty years, and had neither the employees nor the equipment to furnish a slate roof. Appellee argues that before a contractor can be deemed a statutory employer, so as to enjoy immunity from a common law suit by an injured employee of a subcontractor, it must be shown that the subcontracted work was part of the contractor’s trade, business or occupation, and the statute so requires. Appellee argues the relevant test in determining if the work is part of the contractor’s trade or business is whether the subcontracted work was such as would ordinarily be done by the principal employer’s own employees. See 1A Larson, The Law of Workmen’s Compensation, § 49.12, pages 9-12 (1973), wherein Professor Larson stated:

“With a surprising degree of harmony, the cases applying these assorted phrases agree upon the general rule of thumb that the statute covers all situations in which work is accomplished which this employer, or employers in a similar business, would ordinarily do through employees.”

The test articulated by Larson, while adopted or followed in many states, is not the only test used in determining whether subcontracted work is part of the contractor’s business. Several states have adopted the “essential or integral” part of the business test. The relevant inquiry under that test is whether the subcontracted work is an “essential or integral part of the principal contractor’s business”.

A review of the authorities in the states which have “statutory employer” statutes similar to Art. 101, § 62, reveals that, despite Larson’s claim of a “surprising degree of harmony”, a substantial number of states have adopted the “essential or integral part” test. The only valid generalization that can be made on concluding that review is that there is a substantial degree of non-uniformity among the states in terms of the tests that have been adopted.

Sixteen states have statutes similar to Maryland’s in that they contain language to the effect: “business”, or “business, trade or occupation”, or “business, trade, occupation or profession”. Categorization of these states as to a particular test is difficult, as even within this group there is a substantial degree of non-uniformity.

We have found, however, that four states have definitively adopted the “essential or integral” part test .or some comparable version. They are: Louisiana, see Vincent v. Ryder Enterprises, 352 So. 2d 1061 (La. App. 1977); Foster v. Western Elec. Co., 258 So. 2d 153 (La. App. 1972); Arnold v. Shell Oil Co., 419 F. 2d 43 (5th Cir. 1969); Massachusetts, see Tindall v. Denholm & McKay Co., 347 Mass. 100, 196 N.E.2d 631 (1964) (“branch or department” of the business; “customarily carried on as part of the business”); New Mexico, see Abbott v. Donathon, 86 N. M. 477, 525 P. 2d 404 (1974) (“integral part”); and Oklahoma, see Huffman v. Mobil Oil Corp., 554 F. 2d 1361 (5th Cir. 1977) (“integral and' necessary part”).

Connecticut has articulated both tests, seeming, however, to adopt the “essential part” test as the definitive test. The “employees” test is .used as a device to arrive at the “essential part” test, and has been held to be “useful, but not necessarily conclusive”. Mancini v. Bureau of Public Works, 167 Conn. 189, 355 A. 2d 32 (1974); Fox v. Fafnir Bearing Co., 107 Conn. 189, 139 A. 778 (1928).

Two states have held that no test is capable of articulation. One of the states, South Carolina, applies concepts best described as fitting into the “essential and integral” part category. Marchbanks v. Duke Power Co., 190 S. C. 336, 2 S.E.2d 825 (1939); Mack v. R. C. Motor Lines, 365 F. Supp. 416 (D.S.C. 1973) (“essential to business”, “integral part”, “usual and necessary”). The courts applying South Carolina law have also held that the fact that the work is customarily subcontracted out is no bar to statutory employer status. Blue Ridge Rural Elec. Coop. v. Byrd, 238 F. 2d 346 (4th Cir. 1956).

The other state refusing to articulate a definitive test,Missouri, has held that the factors to be considered are whether work is an essential or integral part and/or whether the contractor’s employees usually perform the work. Saale v. Alton Brick Co., 508 S.W.2d 243 (Mo. App. 1974).

Kansas has also applied both tests equally, articulating both so that if either the work is found to be an “integral part” or the “employees” test is satisfied, the contractor is held to be a statutory employer. Woods v. Cessna Aircraft, 220 Kan. 479, 553 P. 2d 900 (1976); Hanna v. Cra, Inc., 196 Kan. 156, 409 P. 2d 786 (1966).

Only one state, Arizona, has adopted the “employees” test to the exclusion of all others. Basurto v. Utah Constr. & Mining Co., 15 Ariz. App. 35, 485 P. 2d 859 (1971). In Lee v. Chevron Oil Co., 565 P. 2d 1128 (Utah 1977), the Supreme Court of Utah, while citing cases that use both tests, apparently articulated the “employees” test as the more relevant one. The test applied to the facts in that case, however, suggests the “essential part” test.

Two states, Pennsylvania and Virginia, have articulated the “employees” test as the appropriate test, but have noted major exceptions to the application of that test. The major exception is where the contractor subcontracts work which he has a contractual duty to perform under the terms of his contract. Pape v. Smith, 227 Pa. Super. 80, 323 A. 2d 856 (1974); Jamison v. Westinghouse Elec. Corp., 375 F. 2d 465 (3d Cir. 1967); Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972); Williams v. E. T. Gresham, 201 Va. 457, 111 S.E.2d 498 (1959). In Jamison, the court gives as an example of this exception a case very similar to the case at bar, noting that the contractor would be the statutory employer. A careful reading of Leftwich reveals the following as an exception to the general rule (“except in cases where the work is obviously a subcontracted fraction of a main contract”), indicating a Jamison-type exception.

The Court of Appeals seems to have settled on the “essential or integral part” test, as shown in State, Use of Reynolds, et al. v. City of Baltimore, et al., 199 Md. 289, 295, 86 A. 2d 618 (1952). There, one Rosoff contracted with the City to excavate and line a water tunnel, including all appurtenant construction necessary for the complete installation. Rosoff was required to provide cages, to be used for hoisting men and materials during construction, which operated on what are known as “headframes”. Rosoff entered into a contract with Archer Iron Works, Inc. for fabrication and erection of the four headframes, complete and installed. Archer contracted with Phillips for the latter to supply ironworkers and equipment for the assembly and erection of the hoists and lifts. Weidman, an employee of Phillips, was killed during the work; thereafter, claims under the Workmen’s Compensation Act were filed, awards passed and paid. Thereafter suits were filed under Articles 67 and 93 of the Code against the City and Rosoff by Weidman’s dependents. The Court of Appeals affirmed the trial court’s action in directing verdicts in favor of Rosoff because it concluded the suits could not be maintained against Rosoff as a negligent third party under then Section 59, Article 101, of the Code (1947 Supp.), now Section 58. Appellants there contended that the law actions could be maintained because the work subcontracted was not a part of Rosoff’s trade, business, or occupation, and, in so contending, cited authority that in part was based on the necessity to show that the work was such as would ordinarily be done by the contractor’s own employees. The Court of Appeals, without specifically discussing this particular test, did find that “Removal of.spoil is an essential part of a tunnel-digger’s trade, business or occupation____This is true even though the subcontractor supplied is a specialist in its line.” They also found that the furnishing of headframes was an integral part of Rosoff’s undertaking.

As we have noted previously, the Workmen's Compensation Act must be liberally construed so as to effectuate the purposes of the Act. The legislature has mandated a broad view rather than a narrow one. In viewing the two tests for determining whether the subcontracted work was part of the trade, business or occupation of the appellant, and heeding what the Court of Appeals stated in State Use of Reynolds v. City of Baltimore, 199 Md. 289, 86 A. 2d 618 (1952), we hold that furnishing the roof on the house was an integral part of appellant’s trade, business or occupation, and thus appellant was the statutory employer of appellee. Given this status as statutory employer, appellant enjoyed the same immunity under § 15 as did appellee’s employer. Appellant’s motion for directed verdict (and judgment n.o.v.) should, therefore, have been granted.

We answer appellant’s second issue — whether the wife of an injured workman entitled to recover under the Act can maintain a common law action for loss of consortium — in the negative. It is now the law that the wife must join with her husband in bringing an action for loss of consortium due to her husband’s injuries. Deems v. Western Maryland Railway Co., 247 Md. 95, 231 A. 2d 514 (1967). We have previously concluded that Mr. Honaker has no cause of action at law but must use the exclusive remedy provided by the Workmen’s Compensation Act, under which Mrs. Honaker herself has no claim. See Bloemer v. Square D Company, 8 Ill. App. 3d 371, 290 N.E.2d 699 (1972) (and cases cited therein).

Judgments reversed.

Case remanded for entry of judgment for costs in favor of appellant.

Costs to be paid by appellees.

      . “When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as subcontractor, for the execution by or under the subcontractor, of the whole or any part of the work undertaken by the principal contractor, the principal contractor shall be liable to pay to any workman employed in the execution of the work any compensation under this article which he would have been liable to pay if that workman had been immediately employed by him ....”

      . Art. 101, § 15: “... the liability prescribed in the last preceding paragraph shall be exclusive ....

      . Our review is limited to those jurisdictions having similarly worded statutes.

      . The remaining four states with similar statutes to our own — Kentucky, Montana, New Hampshire, and Wyoming — have not construed their statutes with respect to similar circumstances.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    K. C. S., LTD. v. EAST MAIN STREET LAND DEVELOPMENT CORPORATION et al.
    [No. 1289,
    September Term, 1977.]

      Decided July 18, 1978.

    The cause was argued before Gilbert, C. J., and MoYlan and Lowe, JJ.

      Edgar A. Baker, Jr., with whom was Sheldon B. Seidel on the brief, for appellant.

      John B. Robins, IV, with whom was Don E. Richardson on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

Does “the right of first refusal,” of specified real property, embodied in a lease between a corporate landlord and its tenant include the right to purchase from the landlord’s stockholders all the authorized and issued outstanding stock of the corporate landlord? The Circuit Court for Wicomico County (Simpkins, J.) decided that it did not. The appellant-tenant, steadfastly of the belief that it possessed such a right, has appealed.

THE FACTS

One of the appellees, the East Main Street Land Development Corporation (Landlord) is the owner of certain real estate on East Main Street and on Market Street in Salisbury, Maryland.

On September 15, 1973, Landlord leased the property designated as 308 East Main Street to the Del-Mar-Va Beauty Academy, Inc., for a term of five (5) years. The lease also contained the seeds to this litigation in the form of the clause “[t]he tenant has the right of first refusal to buy this property by matching any legitimate offer during the term of this lease.” Del-Mar-Va assigned the lease to the appellant-tenant, K. C. S., Ltd. (Tenant) on October 27,1976.

We infer from the record that sometime in the late summer or early fall of 1977, Landlord listed its real property, including the property in which appellant is a tenant, with a Salisbury realtor at an asking price of $155,000. The parties have stipulated to the then following sequence of events:

“1. That a written offer to purchase the real estate, in the amount of $140,000.00 was made by... [Appellees] Bendler and Onley to the East Main Street Land Development Corporation during the latter part of September. This offer was rejected.
2. By letter dated September 29th and delivered on October 2nd, East Main Street withdrew the listing of the property.
3. On October 8th, ... [Appellees] Bendler and Onley made an oral offer to purchase the real estate for $155,000.00 which offer was not accepted.
4. On October 10th, [Appellee] Robert G. Emond, who was aware that Bendler and Onley were interested in purchasing the stock of the corporation, entered into a discussion with his accountant and agreed that it would be advantageous.
5. On October 15th, a contract or agreement for the purchase of stock for the purchase price of $155,000.00 was tendered to Robert G. Emond, President of East Main Street Land Development Corporation and was accepted.
K.C.S., Ltd. was aware of the fact that the property had been listed for sale, however, no specific offer by a third party to purchase the property or stock was ever communicated to K.C.S., Ltd.
K.C.S., Ltd. now and at all times mentioned was ready, willing and able to match a legitimate offer for the purchase of the property and/or stock for $155,000.00.”

Tenant filed a bill in equity against Landlord, its stockholders, the contract purchasers of Landlord’s corporate stock, the realtor and the real estate agent. The bill prayed, inter alia, that the chancellor enjoin the “sale or exchange of the stock and/or real estate and/or improvements of East Main Street Land Development Corporation to anyone other than Complainant....”

The case was heard by Judge Simpkins on an agreed statement of facts, conforming to the stipulations set out above.

THE LAW

Aside from our observation in n. 2, supra, there are two (2) separate and distinct things involved in this matter, namely, 1) the real property and 2) the corporate stock of Landlord.

The general rule is that when a lease, as here, contains a “right of first refusal,” a lessee may enjoin the lessor from selling the demised property to anyone other than the lessee. Straley v. Osborne, 262 Md. 514, 524, 278 A. 2d 64, 70 (1971). See also Westpark, Inc. v. Seaton Land Co., 225 Md. 433, 449-50, 171 A. 2d 736, 743 (1961); Annot., 170 A.L.R. 1068 (1947); 49 Am. Jur. 2d Landlord and Tenant § 374 (1970); 1A A. Corbin, Contracts § 261 (1963).

The word sell ordinarily means to transfer title or possession of property to another in exchange for a valuable consideration. Eastern Shore Trust Co. v. Lockerman, 148 Md. 628, 636, 129 A. 915, 918 (1925).

An analysis of the facts in the case sub judice demonstrates that there was no sale of the real property owned by Landlord. Title to the East Main Street properties as well as that located on Market Street remains in Landlord. What has been sold is the stock of Landlord. While it is true that Landlord offered the realty it owned for sale through the real estate broker, the real property was not sold. Inasmuch as the lease between Landlord and Tenant did not extend to Tenant a “right of first refusal” to purchase all or part of the corporate stock of Landlord, no breach of the lease has occurred by virtue of the sale of stock by the stockholders of Landlord. Tenant is in no worse position than it was before the sale of the stock. Tenant still possesses all the rights and privileges conferred on it by the lease, including the “right of first refusal” to purchase the property demised to the Tenant.

There appears to be a dearth of cases dealing with the issue raised by Tenant, and which we stated at the outset. Perhaps this is true, because, as one authority suggests, the answer is usually obvious. Annot., 70 A.L.R.3rd. 203, 206 (1976). We think it obvious in the matter now before us. Corporations are legal entities “conceived by the mind of man and legitimated by statute....” Dixon v. Process Corp., 38 Md. App. 644, 645, 382 A. 2d 893, 894 (1978). They may be owned by one person or by millions of persons. The sale of corporate stock is an every day occurrence, and indeed, an industry has been created for the purpose of buying, selling, and trading in stocks and other securities. If, perchance, a large corporation with a multitude of stockholders entered into a lease with a tenant, and the lease contained a “right of first refusal” to buy the leased premises if it were offered for sale, no one would seriously contend that a transfer of some of the corporate stock from a seller thereof to a buyer would operate so as to trigger the “right of first refusal” on the theory that the sale of the stock is the equivalent to a sale of the demised premises. Yet, the only difference between that hypothetical and the case sub judice is the quantity of stock being sold. The fact that as a result of the stock sale the control of the corporate landlord will be altered did not change the ownership of the East Main Street property. Torrey Delivery, Inc. v. Chautauqua Truck Sales and Service, Inc., 47 App. Div. 2d 279, 366 N.Y.S.2d 506 (1975). That all the issued corporate stock of Landlord or part of the issued stock of Landlord was sold does not constitute a transfer of the property of the corporation so as to awaken the dormant clause of the lease pertaining .to the “right of first refusal.”

Judge Simpkins properly dismissed Tenant’s bill of complaint.

Judgment affirmed.

Costs to be paid by appellant.

      . The additional appellees are persons consisting of the stockholders of Landlord, the purchasers, and a real estate broker and his agent.

      . Although the matter was raised in the trial court, no issue has been raised in this Court concerning the fact that the right of first refusal referred to the property known as 308 East Main Street, but the appellant is, nevertheless, seeking to enforce its “right of first refusal” additionally, against 310, 312, 314, and 316 East Main Street as well as against another “parcel situated across Market Street from the above.” We shall, therefore, not consider it. See Straley v. Osborne, 262 Md. 514, 523-26, 278 A. 2d 64, 69-71 (1971). But see Annot., 170 A.L.R. 1068 (1947); 49 Am. Jur. 2d Landlord and Tenant § 371 (1970).

      . We observe that the stipulation does not state the year in which the happenings took place, but we, in response to inquiry at oral argument, have established that the year in which the transactions occurred was 1977.


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. INSURANCE COMMISSIONER OF MARYLAND
    [No. 1344,
    September Term, 1977.]

      Decided July 18, 1978.

    The cause was argued before Gilbert, C. J., and Melvin and Couch, JJ.

      Thomas Waxier, Jr., with whom were Alan N. Gamse, J. D. Ruff and Semmes, Bowen & Semmes on the brief, for appellant.

      Richard J. Brooks, Assistant Attorney General, with whom was Francis Bill Burch, Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Insurance, it has been said, is something like gambling— you bet against yourself while the insurance company bets on you. This appeal arises because Government Employees Insurance Company (GEICO) refused to “cover,” by way of policy renewal, the “bet” placed by Leonard and Audrey K. Frank on an automobile, titled in the name of the Franks, but actually operated by their son, Alan. Alan did not live with his parents, arid he maintained possession of the vehicle. During the period May 27,1975, through June 22,1976, Alan amassed four (4) speeding violations. Three (3) of them were for exceeding the posted speed limit by more than ten (10) miles per hour. GEICO’s underwriters were of the view that the “odds” were that Alan was a serious accident waiting to happen, and thus, it notified the Franks of the non-renewal of the policy it had previously issued on the automobile that Alan exclusively used. The Franks complained to the State Insurance Commissioner (Commissioner), who directed that a hearing be held on GEICO’s refusal to renew. As a result of that hearing, the Commissioner ordered GEICO to “coyer” the Franks’ “bet” in the form of a renewal of the policy and to surcharge the Franks for the additional risk that GEICO . was assuming by continuing to insure the vehicle driven by Alan. GEICO, firmly of the belief that the Commissioner had misinterpreted the law and consequently exceeded his authority, appealed to the Baltimore City Court. There, Judge Basil A. Thomas agreed with the Commissioner’s concept of the law and also held that GEICO had not properly furnished notice pf non-renewal to the Franks.

Unshaken in its conviction that the Commissioner was wrong, and that the court incorrectly affirmed the erroneous decision, GEICO has brought its grievance to us. In this Court, GEICO asks five (5) questions. Because of our view of the case, we find it unnecessary to discuss more than two of the issues raised, i.e., part of question one and all of question three, which we treat as one. Before doing so, however, we shall sketehingly set the stage from which this drama unfolded.

Neither Alex Haley nor any other genealogist is needed to determine that the “roots” of civil appeals are ordinarily found in the financial difficulties of one of the parties litigant. The “roots” of the case sub judice have grown from GEICO’s fiscal embarrassment. Early in the 1970’s, GEICO was in serious financial straits as a result of staggering underwriting losses that occurred in 1974 and 1975. The loss for 1975 alone was $191,000,000, and in the words of its brief in this case, “For many months, it was touch and go whether GEICO would survive.” The Superintendent of Insurance of Washington, D.C., GEICO’s home base, ordered that the company “reduce the number of its automobile policies over a two-year period by 40%.”

Seeking to improve its financial condition, GEICO applied to the Commissioner in June 1976 for a twenty-one point nine (21.9) per centum increase in its automobile insurance premium charges. After a hearing thereon, the sought rate hike was rejected. GEICO then promptly requested a more modest ten (10) per centum rate increase and submitted “a merit-demerit surcharge plan.” The plan proposed the lowering of premiums for violation-free drivers, while surcharging those drivers who had accumulated what may be characterized as bad driving records. On August 25, 1976, the chairman of the board of GEICO explained in a letter to the Commissioner that:

“We [GEICO] intend that the Driver Record Rating Plan will ‘re-distribute’ our premium income among the good and the bad drivers, and the premium received by the Company will remain the same.
“It is our expectation that the volume of our non-renewal activity in Maryland will be reduced as a result of the implementation of this Plan.” (Emphasis supplied.)

The Commissioner responded to GEICO’s chairman in a letter dated September 1, 1976, noting his approval of the Plan, with the following qualifying comment:

“Approval [of the rate increase and surcharge plan] is based on assurance that the rates will be applied in order to expand the market for automobile insurance in this state and that cancellation and insurance [non-]renewal will not be made where rates for the applicants rates is [s/e] provided.” (Emphasis supplied.)

GEICO’s chairman answered in a letter dated September 2, 1976 by stating:

“We note that your approval is based on our prior assurance that the rates will be applied in order to expand the market for automobile insurance by lessening the rate of our non-renewals in the State of Maryland. As I previously indicated to you, it is our intention through the implementation of the above changes to materially reduce the volume of this Company’s non-renewal activity in the State of Maryland.” (Emphasis supplied.)

GEICO subsequently revised and filed with the Commissioner on December 14, 1976 its “Maryland Reunderwriting Standards” with the expectation that the “guidelines will allow GEICO to renew substantially more policies than was possible under the previous standards.” The reunderwriting guidelines stated in pertinent part:

“With the adoption of a Demerit system in Maryland, we must take a different reunderwriting approach to the treatment of accidents and violations. Some previous undesirable risks become acceptable with Demerit rating, while some risks are not desirable even with a Demerit system. These latter risks are the ones to be identified and non-renewed or the named driver exclusion used.
VIOLATIONS Individuals having the following violations within the 39 months[] prior to expiration are to be considered undesirable and should be considered for non-renewal, if the only driver on the policy, or the named driver exclusion used:
9) three moving violations”

The Commissioner, on January 28,1977, by letter, granted his approval of GEICO’s modified automobile: insurance rates and classification procedures.

The Franks became involved in this matter as the direct result of a questionnaire mailed to thém by GEICO on March 8, 1977. The questionnaire concerned the policy of insurance issued on a 1976 Pontiac LeMans owned, as we have previously set forth, by Mr. and Mrs. Frank, but used exclusively by their son, Alan, age twenty-one (21), who did not live with his parents. Leonard Frank answered, signed, and returned the questionnaire to GEICO. Mr. Frank’s response indicated that no automobile accidents or violations had occurred. GEICO’s review, on March 22, 1977, of the driving record of Alan, as maintained by the Motor Vehicle Administration, revealed that Alan had, in fact, accumulated four (4) speeding tickets within the preceding two (2) years. Three (3) of the violations were after he had completed a driver’s clinic. A week later, GEICO wrote to the Franks by certified mail that:

“You are hereby notified of the following action concerning your automobile insurance: (Action marked “X” applies)
[x] Non-Renewal: This is notice this policy cannot be renewed and is terminated at 12:01 AM on May 22, 1977.”

Thereafter, in the form letter notice appears:

“Reason(s) or explanation for the above action:
Alan J. Frank’s driving record.
His violations of:
June 22, 1976 — speeding
May 15, 1976 — exceed speed limit by 10 MPH
April 2, 1976 — exceed speed limit by 10 MPH
May 27, 1975 — exceed speed limit by 10 MPH”

The Franks were advised by GEICO that they had a “right to protest ... [the] action and request a hearing thereon before the Commissioner ... within 15 days after receipt of this notice.” Mr. Frank exercised the right within two (2) days.

The Commissioner, as we have already noted, directed GEICO to continue to insure the Franks’ Pontiac automobile and, thus, afford coverage to Alan. The question of the validity vel non of the notice of non-renewal was not raised in the administrative proceeding, nor was it addressed. When GEICO’s appeal reached the Baltimore City Court, the Commissioner did inject the matter of an invalid non-renewal notice into the case. GEICO asserts that the intromission of the notice question before the trial court was improper, but we view it differently. We do so because Md. Ann. Code art. 48A, § 40 (4) provides:

“Upon receipt of such transcripts and evidence [from the Commissioner] the court shall hear the matter de novo as soon as reasonably possible thereafter. Upon the hearing of the appeal the court shall consider the evidence contained in the transcript, exhibits, and documents therein filed by the Commissioner, together with such additional evidence as may be offered by any party to the appeal.”

Section 40 (5) of article 48A, the Insurance Code, permits the trial court to affirm, remand for further proceedings, reverse or modify the decision of the Commissioner. The Court of Appeals, in Nuger v. Insurance Comm’r, 238 Md. 55, 207 A. 2d 619 (1965), made clear that Md. Ann. Code art. 48A, § 40 (4) and § 40 (5), must be read together. That reading, the Court said, means that additional evidence may be offered “as a matter of right” on appeal to the trial court, from the decision of the Commissioner. 238 Md. at 61, 207 A. 2d at 622. If, as here, the Commissioner could demonstrate to the trial court that the notice of non-renewal failed to comply with the statutory mandate of Md. Ann. Code art. 48A, § 240AA (b) (iii), there appears to be no reason why he could not raise the issue as an additional ground for the affirmance of his decision. We think that at that point the trial court could have remanded the matter to the Commissioner for the taking of further evidence or proceeded, as it did, de novo. Moreover, the fact that the Commissioner raised the issue “one day prior to the actual hearing of the appeal before the Baltimore City Court” does not cause the issue to be stricken from consideration. GEICO could have requested a remand to the Commissioner for the purpose of taking testimony and a finding of fact thereon, or it could, as it did, proceed before the court and present evidence to refute the allegation. We perceive no error in Judge Thomas’s permitting the case to proceed before him with the additional issue being joined.

With respect to cancellation or non-renewal of an automobile insurance policy, Md. Ann. Code art. 48A, § 240AA (b) (iii) provides:

“(b) ... An insurer intending to take an action subject to the provisions of this section shall, on or before forty-five days prior to the proposed effective date of the action, send written notice by certified mail of its intended action to the insured at his last known address. The notice shall be in triplicate, and shall state in clear and specific terms, on a form approved by the Commissioner:
(iii) The insurer’s actual reason or reasons for proposing to take such action. The statement of reasons shall be sufficiently clear and specific so that a person of average intelligence can identify the basis for the insurer’s decision, without making further inquiry. Generalized terms such as “personal habits,” “living conditions,” “poor morale,” or “violation or accident record” shall not suffice to meet the requirements of this section....
(f) ... The insurer shall have the burden of proving its proposed action to be justified, and, in doing so, may rely only upon the reasons set forth in its notice to the insured.”

There is no dispute about the fact that GEICO sent written notice to Leonard and Audrey Frank, by certified mail, on or before forty-five (45) days prior to the proposed effective date of its non-renewal of the automobile policy covering the 1976 Pontiac.

Albeit, the form of the notice GEICO used was approved by the Commissioner, the court determined that the notice did not “state in clear and specific terms” GEICO’s “actual reason or reasons for proposing to” non-renew the Franks’ insurance coverage on the automobile operated by Alan. GEICO contends, however, that the notice was sufficient to inform Alan of the reason for the non-renewal inasmuch as Alan “knew what his driving record was.” That argument overlooks the fact that Alan was not the policy owner nor was the notice addressed or mailed to him. The notice, as we have seen, was sent to “Leonard and Audrey K. Frank.” GEICO’s underwriter, David C. Westlein, testified before the court that GEICO’s rationale for non-renewing Alan’s coverage, “was his four speeding tickets within the two years preceding our notice to him____[A\nd also about the fact that three of them were received after he [Alan] had attended a rehabilitation clinic.’’ (Emphasis supplied.) The notice received by the Franks, however, assigns as the reason for non-renewal “Alan J. Frank’s driving record,” followed by a summary of Alan’s motor vehicular violations accruing within three (3) years prior to the notice. Absent from the notice is any explanation that GEICO’s reason for the non-renewal was the frequency of the violations within a two (2) year period, or that three (3) of the violations occurred after Alan had attended a driver’s clinic. According to an underwriting consultant for GEICO during the time relevant to this case, Alan was qualified as a permissible risk under GEICO’s reunderwriting guidelines, subject to “a surcharge factor... to make the base more accurate,” despite his four (4) speeding violations. No explanation, however, was provided -in the notice of the additional factors testified to by Westlein, upon which GEICO based its determination of non-renewal. No showing was made as to why Alan differed from other insured motorists with similar records whom GEICO chooses to surcharge rather than non-renew.

It is perspicuous that Judge Thomas believed that GEICO’s statement of reasons in the notice to the policy holders, Leonard and Audrey K. Frank, did not adequately inform them of the “actual reason or reasons” for proposing not to renew their automobile insurance coverage of the Pontiac, and that the statement of reasons was not “sufficiently clear and specific so that a person of average intelligence ... [could] identify the [actual] basis for the insurer’s decision, without making further inquiry.” Md. Ann. Code art. 48A, § 240AA (b) (iii).

Plainly, GEICO’s stated reasons to the Franks for non-renewal were not, as the testimony before Judge Thomas revealed, all the reasons why it elected not to renew the policy. GEICO’s written explanation fell short of being the “actual reason or reasons” and thus was non-compliance with section 240AA (b) (iii).

The net result of GEICO’s failure to obey the clear legislative mandate of section 240AA is that under the provisions of section 240D they remain liable to the Franks for the coverage.

While not mentioned by the trial court, the Commissioner or GEICO, there is another statutory reason why the non-renewal, in this case, was non-effective. We refer to Md. Ann. Code art. 48A, § 240C-1. That section provides:

“(a) In any case where an insurer is authorized under this article to cancel or nonrenew or increase the premiums on an automobile liability insurance policy under which more than one person is insured because of the claim experience or driving record of one or more but less than all of the persons insured under the policy, the insurer shall in lieu of cancellation, nonrenewal, or premium increase offer to continue or renew the insurance, but to exclude from coverage by name, the person or persons whose claim experience or driving record would have justified the cancellation or nonrenewal. The premiums charged on any such policy excluding a named driver or drivers shall not reflect the claims experience or driving record of the excluded named driver or drivers.
(b) With respect to any person excluded from coverage under this section, the policy may provide that the insurer shall not be liable for damages, losses, or claims arising out of the operation or use of the insured motor vehicle, whether or not such operation or use was with the express or implied permission of a person insured under the policy____” (Emphasis supplied.)

The automobile policy in the case sub judice was issued to Leonard and Audrey K. Frank. Apparently, GEICO found no fault with their respective driving records but pointed the finger of accusation solely at their son, Alan. Any reading of section 240C-1 manifests that GEICO was required to offer Mr. and Mrs. Frank a renewal of the policy, excluding therefrom coverage of Alan. It is clear from the record that no such offer was made to the Franks notwithstanding the unmistakable clarity of section 240C-1. For that reason alone, the trial court or the Commissioner would have been justified in holding that GEICO’s attempted non-renewal was self-aborted and consequently, of no effect.

At oral argument, counsel for GEICO recognized the failure of the notice to meet the requirements of the Code with respect to non-renewal of the policy but, nevertheless, requested this Court to consider the merits of GEICO’s appeal in order to provide guidance for insurers and the Commissioner so as to avoid future conflicts over the effect of section 234A. We decline to sail the course that GEICO would chart for us as any opinion by this Court on the merits of GEICO’s appeal would constitute unadulterated advisory dicta, which “whether it be wise or foolish, right or wrong, bindeth none — not even the lips that utter it,” nor the hand that penned it.

Judgment affirmed.

Costs to be paid by appellant.

      . The word "insurance” came into the English language in 1649, according to Stuart Berg Flexner, I Hear America Talking: An Illustrated Treasury of American Words & Phrases 161 (1976).

      . “Insurance company” had its debut in 1784. Id.

      . Md. Ann. Code art. 48A, § 40 (l).

      . GEICO"asks:
      “1. Is the action of the Baltimore City Court and of the Insurance Commissioner supported by the competent, material, and substantial evidence in view of the entire record, including the de novo evidence, and in view of the requirements of Section 2ÍJ4A (a) of Article 48A of the Maryland Annotated Code?
      2. Is the action of the Baltimore City Court and of the Insurance Commissioner in excess of the Insurance Commissioner’s statutory authority in requiring GEICO to retain all risks eligible for a surcharge rate under the surcharge classification system?
      3. Did GEICO comply with the Notice Provisions of the Insurance Code?
      4. Is the action of the Baltimore City Court and of the Insurance Commissioner in violation of the Due Process Clause of the United States’ Constitution in requiring GEICO to continue to write an insurance risk which is admittedly beyond any company’s statistical underwriting capability?
      5. Is the action of the Baltimore City Court and of the Insurance Commissioner in conflict with the public policy of this state which is expressed in the Maryland Automobile Insurance Fund?”
      We observe that neither GEICO’s fourth (4th) nor fifth (5th) question was raised or decided in the trial court, nor were they raised and decided before the) Oommissionér. They appear before us in virginal form and as such are improperly here. Md. Rule 1085.

      , Mr, Haley is the author of the best selling novel, /¿oofa'(197(i).

      . We do not attempt to define what constitutes a “bad driving record,” for it, like beauty, is largely in the eyes of the beholder and depends upon a number of divers factors.

      . By 1977 Md. Laws, ch. 314, effective July 1, 1977, Md. Ann. Code art. 48A, § 234A was amended by the addition of subsection (d). Md. Ann. Code art. 48A, § 234A (d) (1) provides that an insurer may not “[c]ancel, refuse to renew or otherwise terminate coverage for any automobile insurance risk because of the existence of a traffic violation or accident more than three years old on the date the policy or renewal is effective----”

      . We infer that the driver clinic was held under the auspices of the Motor Vehicle Administration. The entry upon Alan’s driving record is as follows:
      “08-08-75 COMPLETED DRIVER CLINIC"
      In August 1976, Alan was reprimanded by the Motor Vehicle Administration. No violations appear on the record subsequent to June 22, 1976, at which time Alan was found guilty of “speeding.”

      . Enacted by 1972 Md. Laws, ch. 73, effective January 1, 1973, as part of a massive revision of the Maryland automobile liability insurance laws. By 1974 Md. Laws, ch. 765, effective July 1, 1974, section 240AA was amended by the addition of subsection (c-1) requiring that an insurer “promptly send to the Motor Vehicle Administration a copy of any notice to cancel or not renew a motor vehicle liability insurance policy.”

      . When counsel entered the picture on behalf of GEICO, he was confronted with a fait accompli in the form of the failure of GEICO to comply fully with the cancellation or non-renewal provisions of the regulatory statute. The tools of the lawyer are his knowledge, resourcefulness, and his ability to articulate the principles of law involved. Notwithstanding his acumen or the expertise by which he applies his craftsmanship, he still must build upon the foundation of facts as they happened. Although he may be able to present those facts in a more favorable light, he, nevertheless, possesses no magical power to change them. When the factual predicate establishes clearly that his client erred, the lawyer may endeavor to explain away the error, but he cannot undo acts that his client has performed. That task is left to the fictional Mandrake or the legendary Houdini.

        . The Old Judge, as it appears on the title page of Birrell, Obiter Dicta (1885).


text:
    EAST COAST CONFERENCE OF THE EVANGELICAL COVENANT CHURCH OF AMERICA, INC. et al. v. SUPERVISOR OF ASSESSMENTS OF PRINCE GEORGE’S COUNTY
    [No. 1348,
    September Term, 1977.]

      Decided July 18, 1978.

    The cause was argued before Moylan, Melvin and Couch, JJ.

      Gerald E. Baker and Paul R. Shelby for appellants.

      Robert J. Aumiller, Assistant Attorney General, with whom was Francis Bill Burch, Attorney General, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

The East Coast Conference of the Evangelical Covenant Church of America, Inc., et al., appellants, take this appeal from an order of the Circuit Court for Prince George’s County, reversing the order of the Maryland Tax Court, which had granted a tax exemption under Art. 81, § 9 (c), to certain real property owned by the Conference. The single question presented in this appeal is one of statutory construction — whether the “parsonage” tax exemption found in Art. 81, § 9 (c), includes any property owned by a church and used exclusively as a residence by a pastor, whether or not there is an existing congregation or church building.

The facts involved in this case are largely undisputed. The Evangelical Covenant Church of America was duly organized in 1885, now having a membership over 70,000 in more than 550 churches. The East Coast Conference is one of its ten regional conferences. After determining to make a major effort to establish new churches in areas where the church was not well known, the Conference selected the Washington, D. C. Metropolitan Area as a project area. To implement its plan, appellant issued a “call” to Reverend Njaa to become the area nucleus builder. Reverend Njaa was a duly ordained minister of the church and had previously served as pastor of three covenant churches. The main function of Reverend Njaa was to organize local members of the church into groups which would ultimately be large enough and interested enough to support their own parish. When and if Reverend Njaa’s organizing efforts were successful, these groups would call their own minister. On occasion, Reverend Njaa performed typical pastoral duties with a particular group in the Gaithersburg-Rockville area and he maintained that the entire Washington Metropolitan Area was his parish. While admitting .that his job was to start new churches, he stated he also served as pastor.

A few months after Reverend Njaa’s arrival in the Washington area,- the East Coast Conference purchased a house in Bowie, Maryland to be used exclusively as a residence by the Reverend and his family; the house was admittedly used for no other purpose.

In due course, appellants filed an application with the Supervisor of Assessments of Prince George’s County requesting an exemption from real property assessment and taxation on their property being used as a residence, on the ground that said house constituted a “parsonage” within the meaning of Art. 81, § 9 (c), of the Annotated Code of Maryland (1957 Repl. Vol.). The exemption was denied by the Supervisor of Assessments and an appeal was taken to the Property Tax Assessment Appeal Board for Prince George’s County, which affirmed the Supervisor’s denial. A further appeal was then taken to the Maryland Tax Court and, for the first time, appellants were successful. The Tax Court reversed the Supervisor of Assessments and granted the § 9 (c) exemption. The Supervisor of Assessments appealed the Tax Court decision to the Circuit Court for Prince George’s County, and that court reversed the decision of the Maryland Tax Court, in effect denying the exemption to appellants. Undaunted, appellants ask this Court, on appeal, to reverse the Circuit Court and to reinstate the Maryland Tax Court decision. We decline to do so.

Article 81, Sec. 9, provides for real and personal property exemptions generally. Section 9 (c) provides:

“Property owned by a religious group or organization and actually used exclusively for public religious worship, including parsonages and convents ... shall be exempt.”

There is no dispute that the subject property is owned by a religious group or organization. The question is whether the subject property is a parsonage as used in that section.

Distilling the many definitions found in standard dictionaries, it seems fair to say a parsonage is, in general, a house supplied to a parish minister by the parish congregation or church.

Whether or not there must be an existing local church or congregation, to which the parsonage is an adjunct, is the disputed point.

Art. 81, § 9 (a) requires that all exemptions be strictly construed. The Court of Appeals in Perdue v. State Dept. of Assessments & Taxation, 264 Md. 228, 232-3, 286 A. 2d 165, 167 (1972), stated:

“To determine the applicability of a legislative exemption to particular facts it is necessary to ascertain whether the language of the act clearly and unambiguously included the claimed items by words used in their ordinary and popularly understood meaning .... It is fundamental that statutory tax exemptions are strictly construed in favor of the taxing authority and if any real doubt exists as to the propriety of an exemption that doubt must be resolved in favor of the State.”

Appellants argue that the legislature eliminated any doubt as to the construction of “parsonage” by repealing and reenacting Art. 81, § 9 (c), with amendments in Acts 1972, ch. 350, § 1.

Formerly Article 81, Sec. 9 (4) provided:

“Houses and buildings used exclusively for public worship, and the furniture contained therein, and any parsonage used in connection therewith, and the grounds appurtenant to such houses, buildings and parsonages and necessary for the respective uses thereof.”

Article 81, Sec. 9 (c) was passed in 1972; it repealed Article 81, Sec. 9 (4) and reenacted the former law, providing in pertinent part:

“(c) Churches. — Property owned by a religious group or organization and actually used exclusively for public religious worship, including parsonages and convents, and property owned by any such group or organization and actually used exclusively for educational purposes.”

The amendments in part eliminated the requirement of a “connection” with houses and buildings used exclusively for public worship, arguably indicating that no identifiable church is required. On the other hand, it may be argued that all the amendments did, so far as is here pertinent, was to remove the requirement of a physical connection with a church building (in terms of spatial proximity). The legislature may well have been recognizing that congregations in modern times often find their pastors’ homes in the neighborhood of the church, rather than in a connected church building. The amendments did not necessarily alter the definition of parsonage to eliminate the requirement that there be an “organizational” connection with an existing church or congregation.

The Maryland Tax Court, in its opinion reversing the Property Tax Assessment Appeal Board for Prince George’s County, concluded that the legislature, by the 1972 amendments, removed the requirement that the house must be used in connection with another house or building which is used exclusively for public worship. It finally concluded:

“Parsonages and convents are residences that are not intended to have any other religious use.”

In its Memorandum and Order of Court, the Circuit Court concluded:

“The Court feels that in order for a parsonage to qualify for an exemption from real estate taxation it must be an adjunct to a house of public worship or a residence of a clergyman who is affiliated with a house of public worship.”

Under Art. 81, Sec. 229 (o), the Circuit Court was required to determine the matter upon the record made in the Maryland Tax Court and must affirm the Tax Court Order unless it was erroneous as a matter of law and if it is supported by substantial evidence appearing in the record. The requirement of substantial evidence has been interpreted to mean “whether a reasoning mind reasonably could have reached the factual conclusion which the agency reached.” See Comptroller of the Treasury, Income Tax Division v. Diebold, Inc., 279 Md. 401, 369 A. 2d 77 (1977).

We conclude the Tax Court erred in holding appellant’s property was exempt, as a matter of law. We do so because we find that to qualify as a parsonage there must be a minister with an identifiable parish and congregation and, of course, a building furnished to him by the church or congregation for his residence. The record clearly demonstrates that Reverend Njaa, although an ordained minister, accepted a “call” as a nucleus builder for the Washington, D.C. area, not as a traditional minister for an identifiable congregation. There was also evidence of appellants’ “methodology” of church development which explained Reverend Njaa’s duties, in part, as follows:

“... A Nucleus Builder is a Pastor whose primary goal shall be to coalesce groups of Christians simultaneously in several Service Areas who may become the nucleus for the beginnings of a Covenant Church.
Such a person does not hold regular services or serve a parish as such. Once the nucleus has developed to a point of taking a step forward to organize into a fellowship group, a Developer Pastor would be called____The nucleus builder would normally have two or three groups simultaneously.” (Emphasis supplied.)

Despite the Reverend’s opinion that the entire Washington area was his parish, it is patent that his superiors did not so conclude. We also find it significant that it was contemplated by appellants “once the nucleus has developed to a point of taking a step forward to organize into a fellowship group, a Developer Pastor would be called.”

Support for our conclusion may be found in strikingly similar cases such as Pacific Northwest Annual Conf. v. Walla Walla County, 82 Wash. 2d 138, 508 P. 2d 1361 (1973), Worcester Dist. Stewards v. Assessors of Worcester, 321 Mass. 482, 73 N.E.2d 898 (1947), Int. Missions, Inc. v. Lincoln Park, 87 N.J. Super. 170, 208 A. 2d 431 (1965), and Harmon v. No. Pacific Union Conf., 462 P. 2d 432 (Alaska 1969).

Order affirmed.

Costs to be paid by appellants.

      . Parsonage: Black’s Law Dictionary, Rev. Fourth Edition: “A certain portion of lands, tithes and offerings, established by law, for the maintenance of the minister who has the cure of souls. Tomlins.
      The word is more generally used for the house set apart for the residence of the minister. Mozley & Whitely.”
      Webster’s Third New International Dictionary, unabridged (1976): “1: the benefice under English ecclesiastical law of the parson of a parish: a, a parish church and the income attached to it (as from rights, glebes, and tithes) b, a certain portion of lands, tithes, and offerings for the maintenance of the parson 2a: the house or the house and land provided by a parish or congregation for its pastor’s use, b: a clergyman's residence.”
      Ballentine’s Law Dictionary 3rd Ed. (1969): “A dwelling house occupied by the pastor of a church, ordinarily owned by the church. ’ 45 Am. Jur. (1st) Relig. Soc. § 30.
      When a church has acquired all the ecclesiastical rights it becomes, in the language of the law, a rectory or parsonage which consists of a glebe, tithes, and oblations established for the maintenance of the parson or rector to have cure of souls within the parish. Pawlet v. Clark (US) 9 Cranch 292, 326, 3 L. Ed. 735, 747.
      The Cyclopedic Law Dictionary (3rd Ed.) 1940: “A parsonage is a house in which a minister of the gospel resides.” 189 Mich. 408.
      Random House Dictionary of the English Language (1966): “1. the residence of a parson or clergyman, as provided by the parish or church, 2. Eng. Eccles. Law, the benefice of a parson.”
      Oxford New English Dictionary (1909): “The benefice or living of a parson; a rectory. 2. The house attached to a parson’s living, the rector’s house. Also, in later use, the house of a vicar, perpetual curate, or other incumbent of a parish or parochial district; sometimes (esp. in U.S. and Colonies) applied to the residence provided for any minister of religion.”

      . We use the word “organizational” in terms of the functional and spiritual relationship between the pastor (therefore, the parsonage) and his church and congregation.


author:
      Couch, J.,

      Gilbert, C. J.,

text:
    DEBORAH MASON MONTZ v. NICHOLAS A. MENDALOFF et ux.
    [No. 1358,
    September Term, 1977.J

      Decided July 18, 1978.

    The cause was argued before Gilbert, C. J., and Melvin and Couch, JJ.

      Jacob Matz, with whom was Gerald H. Cooper on the brief, for appellant.

      David M. Buffington and Peter G. Ashman, with whom were Semmes, Bowen & Semmes on the brief, for appellees.
   Couch, J.,

delivered the opinion of the Court. Gilbert, C. J., filed a concurring opinion at page 226 infra.

Appellant, Deborah Mason Montz, nee Mason, was injured while riding as a passenger in an automobile owned by her stepfather, Nicholas A. Mendaloff, and being operated by her mother, Althea D. Mendaloff. At the time of the accident appellant was not quite seventeen years of age, single, living with the Mendaloffs, and unemployed; since the accident, however, she has married and no longer lives with her parents. She brought an action in the Superior Court of Baltimore City against the Mendaloffs (appellees), alleging negligence and gross negligence on the part of her mother as being the cause of her injuries. For reasons not here relevant the case was transferred to the Circuit Court for Carroll County. There, appellees pleaded and moved for summary judgment, claiming immunity under the “parent-child immunity doctrine” set out in Sanford v. Sanford, 15 Md. App. 390, 290 A. 2d 812 (1972), and previous Maryland cases. The court, after hearing, held the case sub curia and ultimately granted appellees’ motion. After judgment was entered against appellant, she filed a timely appeal with this Court.

Appellant mounts a three-pronged attack on the trial court’s ruling by stating:

(1) the action is not barred by the parental immunity rule as previously articulated by the Court of Appeals;
(2) the action is not barred by public policy;
(3) the rule, in any event, would not bar an action based on gross negligence.

(1) and (2)

In our view, questions 1 and 2 are interrelated and may be considered together conveniently. Appellant first argues that there is no case wherein the Maryland Court of Appeals has declared the parental immunity doctrine to be applicable to an action based on facts and circumstances similar to those in the instant case. While we agree that this is true, we think appellant can find little solace because of what the Court of Appeals has said in analogous cases points the way for our ruling.

Chief Judge Bond, speaking for the Court in Schneider v. Schneider, 160 Md. 18, 152 A. 498 (1930), a case where a mother sued two sons for personal injuries sustained by her while riding as a passenger in an automobile owned by one son and driven by another, stated:

“It appears that a majority of courts in which the question has arisen have decided that a minor child cannot maintain such an action against its parents____”

Id. at 22, 152 A. at 499.

In Yost v. Yost, 172 Md. 128, 134, 190 A. 753-756 (1937), an action in equity by a minor against his father for support, the Court of Appeals noted:

“Stated differently, for acts of passive negligence incident to the parental relation, there is no liability. The doctrine is founded upon public policy,____”

The matter was not addressed again until 1951, when the Court decided Mahnke v. Moore, 197 Md. 61, 77 A. 2d 923 (1951). This case represented an action by a minor against her deceased father’s estate, alleging personal injuries caused by atrocious acts committed by the father in the child’s presence. The Court, in part, stated:

“Ordinarily, the parent is not liable for damages to the child for a failure to perform a parental duty, or for excessive punishment of the child not maliciously inflicted, or for negligent disrepair of the home provided by the father. These acts grow out of and pertain to the relation of parent and child. But when, as in this case, the parent is guilty of acts which show complete abandonment of the parental relation, the rule giving him immunity from suit by the child, on the ground that discipline should be maintained in the home, cannot logically be applied, for when he is guilty of such acts he forfeits his parental authority and privileges, including his immunity from suit.”

Id. at 68, 77 A. 2d at 926.

In 1956 the Court of Appeals next met the issue in Waltzinger v. Birsner, 212 Md. 107, 128 A. 2d 617 (1956), a case where an 81 year old mother sued her adult son for injuries she received in an automobile accident, allegedly due to his negligence. That Court, in rejecting the son’s defense of parent-child immunity, stated in part:

“Here, both the mother and son are free and separate persons having the right to sue and be sued .... Here, of course, the son is not a minor.”

Id. at 126, 128 A. 2d at 627.

That Court has not spoken on the subject since, but this Court has done so twice. In Latz v. Latz a/k/a Schafer, 10 Md. App. 720, 272 A. 2d 435 (1971), cert. denied, 261 Md. 726, a suit by a father against his minor daughter, as the driver of an automobile, for the death of his wife (her mother) who was riding therein as a passenger, Judge Orth, now of the Court of Appeals, speaking for this Court, stated:

“We feel that the rule of Schneider is firmly enough embedded in the law of Maryland as to make inadvisable its abolition by judicial decision and we decline to change it for other than constitutional reasons.
“In addition we believe it particularly fitting that any change in the parent-child immunity rule should be by legislative action .... The legislature in Maryland has been aware of the immunity under the Schneider decision for 40 years and has taken no action to change it.”

Id. at 730, 733-4, 272 A. 2d at 440-1, 442-3.

In Sanford v. Sanford, 15 Md. App. 390, 290 A. 2d 812 (1972), an action by a minor against his father for injuries received as a passenger in an automobile driven by the father, it was stated:

“In regard to reason (3), we discussed “the modern trend establishing such immunity’ in Latz at 728-734. We found the rule to be firmly enough embedded in the law of Maryland as to make inadvisable its abolition by judicial decision.”

We note that with the passage of forty-eight years since Schneider, and seven years since Latz, the legislature in Maryland not only has been aware of the immunity doctrine but has seen fit not to change it. We feel it is now more firmly embedded in the law of Maryland and decline to change it.

The answer to appellant’s second question regarding public policy is that, until the legislature speaks, there is a public policy against such actions. We have declined to change the rule in an action by a wife against her husband arising out of an automobile accident, where the parties were separated. See Arch v. Arch, 11 Md. App. 395, 274 A. 2d 646 (1971).

The Court of Appeals has also rejected the argument that the carrying of liability insurance by the parties should negate the applicability of the immunity rule. Schneider v. Schneider, supra. We are not unmindful of the direction being taken by other jurisdictions in this area, especially where the parties are insured. See Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (Mass. 1975) and cases cited therein. We decline, however, to follow those jurisdictions, leaving it to the Maryland legislature to make this change if it perceives it to be in the best interest of the people of this State.

(3)

The last, and probably most troublesome, argument is whether the rule applies in an action between child and parent based on gross negligence. The argument has some persuasiveness because it is conceivable that a set of circumstances could exist wherein one could say that the acts of the parent were grossly negligent and which show a complete abandonment of the parental relation, or by which it might be said that the parent had forfeited his parental authority and privileges, and thus his immunity from suit, so as to bring the case within the narrow confines of Mahnke v. Moore, supra.

Factually this case bears no resemblance to Mahnke; there the minor child’s father shot her mother, in her presence, with a shotgun, causing a portion of the mother’s skull to come to rest on the kitchen table. The father thereafter kept the child with the mother’s body for some six days and then drove her to his home in New Jersey where, the next day, he committed suicide in her presence by shooting himself with a shotgun, thereby causing masses of his blood to lodge upon her face and clothing. In the instant case the mother was taking an injured dog to the veterinarian, with appellant and the dog in the back seat of the car. The mother claims the dog, which was in great distress, distracted her in the operation of the car, causing the accident. Appellant claims her mother was going too fast, took her eyes off the roadway, ran through a stop sign, off the traveled portion of the roadway and struck an embankment. There is nothing in the record showing the accident was caused by any action on the mother’s part, indicating her abandonment or forfeiture of her parental authority and privileges. Indeed, while appellant did allege, in one statement only, that the mother was operating the automobile in a careless, reckless, and grossly negligent manner, her declaration concluded with the statement that appellant’s injuries were due solely to and by reason of the negligence of appellees. Under the alleged facts of this case, we find no error in granting the motion for summary judgment both as to the mother and stepfather, based on the doctrine of parental immunity as it exists in Maryland.

Judgment affirmed.

Costs to be paid by appellant.

Gilbert, C. J.,

concurring:

Deborah Mason Montz, the appellant, has arrived in this Court yelling, “Tauro! Tauro! Tauro!” She, of course, does not refer to the December 7, 1941, attack on Pearl Harbor, but rather to the opinion of Chief Justice Tauro of the Massachusetts Supreme Judicial Court in Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975). In that case, Chief Justice Tauro stated that children have the same “right to protection and to legal redress for wrongs done them as others enjoy.” 339 N.E.2d at 912.

What some see as a doctrine of law that serves the best interest of family unity, but which I perceive to be an antiquated idea that not only fails to accomplish that end, but may well have the opposite effect, was conceived in the minds of the Supreme Court of Mississippi and given birth in Hewlett v. Ragsdale, 68 Miss. 703, 9 So. 885 (1891). Hewlett involved a female minor who brought suit against her mother for “wilfully, illegally, and maliciously” having the child confined in an insane asylum in order for the mother to secure the property of the child. The Mississippi court, without citing any authority for its position, baldly declared that “[t]he peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand.” 68 Miss, at 711, 9 So. at 887. Other American appellate courts, including Maryland, followed Hewlett. See Schneider v. Schneider, 160 Md. 18, 22, 152 A. 498, 499 (1930), where Chief Judge Bond said that “Tilt appears that a majority of courts in which the question has arisen have decided that a minor child cannot maintain such an action against its parent. . , .” The Court, as Judge Couch notes in the instant case, applied Schneider and the dubious holding of Hewlett, as well as its off-spring in Waltzinger v. Birsner, 212 Md. 107, 125-26, 128 A. 2d 617, 626-27 (1957); Mahnke v. Moore, 197 Md. 61, 68, 77 A. 2d 923, 926 (1951); Yost v. Yost, 172 Md. 128, 134, 190 A. 758, 756 (1937). We, in three (8) previous decisions, Sanford v. Sanford, 15 Md. App. 390, 290 A. 2d 812 (1972); Arch v. Arch, 11 Md. App: 395, 274 A. 2d 646 (1971); Latz v. Latz a/k/a Schafer, 10 Md. App. 720, 272 A. 2d 435 (1971), cert. denied, 261 Md. 726 (1971), have followed the lead of the Court of Appeals.

I agree that we, in the case sub j’udice, based on stare decisis, must reach the conclusion that under existing Maryland law a minor may not maintain an action, in tort, for wrongs done to the minor by his or her parent or parents. Were we deciding a virginal issue, however, I would subscribe to the Sorensen reasoning rather than Hewlett.

Many jurisdictions have departed 'in whole or in part from the seemingly unfair parental immunity doctrine, and each of them would entertain an action similar to that instituted in the case now before us. See Sorensen v. Sorensen, 339 N.E.2d at 911, footnote 5, infra, citing cases from Alaska, Arizona, California, Hawaii, Kentucky, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Virginia, and Wisconsin. Moreover, there appears to be no barrier in the common law of England that would prevent a minor from asserting an action against his or her parents for a wrong done to the child by the parents. Mahnke v. Moore, 197 Md. at 64, 77 A. 2d at 924; Hastings v. Hastings, 33 N. J. 247, 255, 163 A. 2d 147, 152 (1960); Sorensen v. Sorensen, 389 N.E.2d at 909.

I think the time has come for the Court of Appeals to re-examine the parental immunity doctrine espoused in Schneider, Yost, and Mahnke in the light of the present compulsory automobile insurance law of this State. Perhaps, the Court will now hear the beat of a different drummer than that heard by its predecessors and march with those who have denounced Hewlett, at least to the extent of permitting an unemancipáted minor to recover in motor tort cases to the limits of his or her parents’ automobile liability insurance for injuries occasioned to the minor as a result of the negligence of the parent. By so doing, the Court would lift unemancipated minors from their current status of second class citizens, a position in which they have been thrust by the parental immunity doctrine, and recognize that unemancipated minors have the same rights as everyone else. The majority, in the case subjudice, opine that it is up “to the Maryland legislature to make this change [in the law] if it perceives it to be in the best interest of the people of this State.” I fail to see why that is necessarily true. The doctrine of parental immunity, as we have seen, was sired in the minds of the Supreme Court of Mississippi, who, serving as mid-wife, delivered it in Hewlett, Maryland adopted the doctrine, notwithstanding its questionable parentage, insofar as precedent is concerned. The promulgation of parental immunity from actions by unemancipated minors and its subsequent nutriment have been solely judicial functions. To me there is no valid reason why the branch of government that gave birth to the doctrine cannot lay it to rest when, as here, there exists compulsory automobile liability insurance. I believe it to be inconceivable that the average parent entering into a contract with a motor vehicle liability insurance carrier knows that he is excluding from the protection of the policy his minor children, the ones he ordinarily is most desirous of protecting.

One further comment need be made. Judge Orth, for this Court, in Latz, commented:

“We feel that the rule of Schneider is firmly enough embedded in the law of Maryland as to make inadvisable its abolition by judicial decision and we decline to change it for other than constitutional reasons.” (Footnote omitted.) (Emphasis supplied.) 10 Md. App. at 730, 272 A. 2d at 440-41.

This Court, in Latz, rejected an “equal protection” argument on the basis that all unemancipated minor children are immune to tort actions brought against the minor by his or her parents. Latz was decided before automobile insurance became compulsory in this State. Perhaps in view of the present state of the law, the equal protection argument should be revisited. We are, however, precluded from doing so in the case at bar because that issue was not raised in the trial court, Md. Rule 1085, nor was it or could it then be raised for the first time in this Court. Consequently, any revisitation of Lat¿s equal protection holding will have to await its arrival in this Court properly attired for review.

I concur with the result reached in this case, but I do so with reluctance, for the reasons stated herein.

      . Clearly the stepfather’s liability, as he was not operating or present in the ear at the time of the accident, could only be dependent on the mother’s own liability. As she was not liable, neither was the stepfather.

      . With apologies to Gordon W. Prange, author of “Tora! Tora! Tora!"— Japanese for “Attack! Attack! Attack!”

      . Hewlett was decided before both automobiles and automobile insurance.

      . Obviously the Mississippi court of 1891 was unaware of the increasing number of child abuse cases appearing in the courts, hospital emergency rooms and doctors’ offices. Some writers on the subject believe that the reported cases are but the visible part of the iceberg, nine tenths of it being unseen.

      . See Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1980); Mesite v, Kirehanstein, 109 Conn. 77,145 A, 758 (1929); Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905); MeKelvey v. McKelvey, 111 Tenn, 388, 77 S. W. 664 (1908).

      . See Sorensen v. Sorensen, supra; Rupert v. Stienne, 90 Nev. 397, 528 P. 2d 1013 (1974); Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972); Gibson v. Gibson, 3 Cal. 3d 914,479 P. 2d 648, 92 Cal. Rptr. 288 (1971); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1971); Falco v. Pados, 444 Pa. 372, 282 A. 2d 351 (1971); Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971); France v. A.P.A. Transport Corp., 56 N. J. 500, 267 A. 2d 490 (1970); Streenz v. Streenz, 106 Ariz. 86, 471 P. 2d 282 (1970); Petersen v. City & County of Honolulu, 51 Hawaii 484, 462 P. 2d 1007 (1969); Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529 (1969); Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968); Hebel v. Hebel, 435 P. 2d 8 (Alas. 1967); Nuelle v. Wells, 154 N.W.2d 364 (N.D. 1967); Briere v. Briere, 107 N. H. 432, 224 A. 2d 588 (1966); Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).


text:
    EARL D. WATTERSON et al. v. LLOYD I. EDGERLY
    [No. 1373,
    September Term, 1977.]

      Decided July 18, 1978.

    The cause was argued before Gilbert, C. J., and Davidson and MacDaniel, JJ.

      E. Richard McIntyre for appellants.

      Marvin E. Perlis for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

A spendthrift trust is an American legal creation, designed specifically to afford a beneficiary those things he cannot afford, while simultaneously protecting him from the claws of cozened creditors. It runs the gamut from the benefactor’s fortune to the beneficiary’s good fortune and the creditor’s misfortune.

Spendthrift trusts were first allowed in Maryland in Smith v. Towers, 69 Md. 77, 14 A. 497, 15 A. 92 (1888). There, the Court held “that the founder of a trust may provide in direct terms that his property shall go to his beneficiary to the exclusion of his [the beneficiary’s] alienees, and to the exclusion of his [the beneficiary’s] creditors.” 69 Md. at 90-91, 14 A. at 500. The Court, in Smith, followed the lead of the Supreme Court of the United States in Nichols v. Eaton, 91 U. S. 716, 23 L. Ed. 254 (1875) and the high court of Massachusetts in Broadway Nat'l Bank v. Adams, 133 Mass. 170 (1882). Maryland has adhered to its original position through the years in a host of cases including, Reid v. Safe Deposit and Trust Co., 86 Md. 464, 38 A. 899 (1897); Brown v. Macgill, 87 Md. 161, 39 A. 613 (1898); Jackson Square Loan and Sav. Ass’n v. Bartlett, 95 Md. 661, 53 A. 426 (1902); Safe Deposit and Trust Co. v. Independent Brewing Ass’n, 127 Md. 463, 96 A. 617 (1916); Plitt v. Yakel, 129 Md. 464, 99 A. 669 (1916); Johnson v. Stringer, 158 Md. 315, 148 A. 447 (1930); Michaelson v. Sokolove, 169 Md. 529, 182 A. 458 (1936); Bauernschmidt v. Safe Deposit & Trust Co., 176 Md. 351, 4 A. 2d 712 (1939); and Medwedeff v. Fisher, 179 Md. 192, 17 A. 2d 141 (1941).

Nevertheless, it is unmistakable that a person may not create such a trust for his own benefit. Manders v. Mercantile Trust and Deposit Co., 147 Md. 448,128 A. 145(1925); Wenzel v. Powder, 100 Md. 36, 59 A. 194 (1904); Brillhart v. Mish, 99 Md. 447, 58 A. 28 (1904); Brown v. Macgill, supra; Warner v. Rice, 66 Md. 436, 8 A. 84 (1887); G. Bogert, Handbook of the Law of Trusts § 40 (5th ed. 1973); G. Bogert, The Law of Trusts and Trustees § 223 (2d ed. 1965); H. Ginsberg, Equity Jurisprudence and Procedure in Maryland 25 (1928); E. Griswold, Spendthrift Trusts 474 (2d ed. 1947); 1 Restatement (Second) of Trusts § 156(1) (1959); 2 A. Scott, The Law of Trusts § 156.3 (3rd ed. 1967).

The application of the principles we have stated above proves more difficult than merely articulating them. We are here called upon to decide whether a husband may convey his interest in real property, owned by the husband and his wife as tenants by the entireties, to his wife, and she in turn, by testamentary disposition, create a valid spendthrift trust so as to shield the husband from his judgment creditors. Aggravating the issue is the fact that the wife died on the sixty-first (61st) day following the conveyance to her by the husband, and the sixtieth (60th) day subsequent to the execution of her will. So far as Maryland appellate courts are concerned, by answering the issue, we seem to be plowing virgin fields.

This appeal had its origin with the filing of an Amended Bill of Complaint in the Circuit Court for Montgomery County by Lloyd I. Edgerly, appellee, against Earl D. Watterson, J. Morris Hardy, trustee of the trust created by the Last Will and Testament of Emma B. Watterson, deceased, and E. Richard McIntyre, personal representative of Mrs. Watterson’s estate, appellants. The bill sought to have the court “declare the spend thrift [sic] provision of the trust invalid to the extent of ... [Mr. Watterson’s] contribution”; permit appellee “to execute against... Earl D. Watterson’s life interest in the real estate conveyed into the trust”; declare him “to the extent of his surrendered right of curtesy,[] to be the settlor of the trust created by his wife,” thus sanctioning appellee’s executing against that interest in the estate.

The case sub judice was submitted to the circuit court on an agreed “Stipulation of Facts” which we quote in toto:

“1. That EARL D. WATTERSON and EMMA B. WATTERSON, his Wife, on May 28,1965, acquired the real property known as 10703 Bucknell Drive, Silver Spring, Maryland, as Tenants by the Entirety, otherwise described as Lot numbered two (2), Block numbered Thirteen (13), in the subdivision known as “GLENVIEW”, as per plat recorded in Plat Book 36, at Plat 2437.
2. That on January 23, 1976, EARL D. WATTERSON executed a Deed, without consideration, conveying all of his interest in the said real property to his Wife, EMMA B. WATTERSON and claimed exemption from Montgomery County transfer tax on the grounds the transfer was without consideration.
3. That on January 24, 1976, EMMA B. WATTERSON executed her Last Will and Testament, establishing a trust for the life of EARL D. WATTERSON.
4. That the income from said trust is to be paid in quarterly installments to EARL D. WATTERSON for his support and general welfare.
5. That the said trust, as established by the Will of EMMA B. WATTERSON, has engrafted upon it what is commonly known as a spendthrift trust provision.
6. That included among the assets of the spendthrift trust is the aforementioned real estate.
7. That EMMA WATTERSON died on March 2, 1976.
8. That EARL D. WATTERSON did not renounce his statutory share but rather elected in favor of the testimentary [s/c] spendthrift trust as provided in his Wife’s Will.
9. That subsequent to the time EARL D. WATTERSON and EMMA B. WATTERSON obtained the said property and prior to the time that EARL D. WATTERSON conveyed it to EMMA B. WATTERSON, a number of judgments against EARL D. WATTERSON by various creditors, including the judgment of the Plaintiff on May 28, 1974 in the sum of $19,969.16 had been obtained in the Circuit Court for Montgomery County, Maryland against EARL D. WATTERSON. (See attached list.)
10. That the said judgment remains partially unsatisfied.”

The chancellor, in a written opinion, concluded that it was "immediately apparent that the conveyance to ... [Earl Watterson’s] wife without consideration, and her will immediately thereafter when she was terminally ill, and when ... [Earl Watterson] was and had been for many years insolvent, constituted acts done with intent to hinder, delay, or defraud creditors.” (Emphasis supplied.) We have read and re-read the stipulation but are unable to find any expression therein which would give rise to the statement that Mrs. Watterson was “terminally ill.” Perhaps, it is mere surmise on the part of the trial judge based upon the date of death in relation to the conveyance and the making of the will, or perhaps he relied upon an allegation in the amended bill that the conveyance to Mrs. Watterson, by her husband, Earl, of his interest was made “in contemplation of the death of the then critically ill... [Mrs,] Watterson, and to avoid creditors reaching the said realty upon its becoming the sole property of Earl D. Watterson at the death of his wife — ” In any event, that averment was denied by the appellants, and as we have observed, there is nothing in the stipulation to support it. The finding, which was so “immediately apparent” to the chancellor is not apparent at all to us, and we are unwilling to declare that because Mm Watterson died sixty-one (61) days after a conveyance to her of real property which she almost simultaneously placed in a spendthrift trust for the benefit of her husband who had conveyed the property to her, that she was “terminally ill” at the time. We think that a judgment of that type is vested in an authority who occupies a position of review considerably higher than this, or any other Court.

Thus, a major premise of the trial court’s reasoning, when examined, is found wanting, but even if it had been correct, its value is doubtful when we consider the holding of the Court in Hertz v. Mills, 166 Md. 492, 171 A. 709 (1934). A property owned as tenants by the entireties may be conveyed by either the husband or the wife to the sole ownership of the other even though the purpose behind the conveyance is to prevent the enforcement of a judgment against the grantor should he survive the grantee. Id. See also Van Royen v. Lacey, 266 Md. 649, 296 A. 2d 426 (1972).

The chancellor recognized the rule of Hertz and Van Royen but reasoned that the conveyance without consideration to the wife by the insolvent husband did not pass valid title to her, citing Myers v. King, 42 Md. 65 (1875) and Ressmeyer v. Norwood, 117 Md. 320, 83 A. 347 (1912). The chancellor was of the further view that Earl Watterson’s transfer of his interest in the property to his wife, under the circumstances of this case constituted Earl Watterson as the settlor of the trust. The trial judge concluded that inasmuch as the trust was created by Mr. Watterson “for his own benefit” the “spendthrift clause... is void insofar as existing creditors are concerned, and they can reach his interest under the trust.”

We think Myers v. King, supra and Ressmeyer v. Norwood, supra, relied upon by the chancellor, to be inápposite. Myers was concerned with a gift of $500 by an insolvent husband to his wife. Prior to the giving of the money, the wife had absolutely no claim of ownership therein. No question of property held as tenants by the entireties was involved. Ressmeyer also bears no similarity to the case sub judice. There, a husband and wife made a mortgage to the wife alone to secure a debt in excess of $13,000, when, in fact, no such debt existed. The Court properly held that the mortgage was invalid for want of bona fide consideration.

We have not been directed to any Maryland case, nor have we found one, which holds that there must be a bona fide consideration for the transfer of a husband’s interest in tenants by the entireties property to his wife. In fact, Hertz v. Mills, supra and Van Royen v. Lacey, supra, are clearly to the contrary.

Judge Smith stated for the Court, in Van Royen, that “... under our holdings a creditor of one spouse may not attack as a fraudulent conveyance the transfer of land owned by a husband and wife as tenants by the entireties.” 266 Md. at 651, 296 A. 2d at 427. Under the rationale of Hertz and Van Royen, the fact that there was no consideration for the transfer, in the instant case, or that it was accomplished for the purpose of preventing the enforcement at a later time of a judgment against the husband is immaterial and does not affect the validity of the conveyance.

It has long been settled in this State that the property of a husband or wife held as tenants by the entireties cannot be taken by the creditors to satisfy the individual debts of either the husband or wife. Hertz v. Mills, supra; Annapolis Banking & Trust Co. v. Neilson, 164 Md. 8, 164 A. 157 (1933); Wolf v. Johnson, 157 Md. 112, 145 A. 363 (1929); McCubbin v. Stanford, 85 Md. 378, 37 A. 214 (1897); Marburg v. Cole, 49 Md. 402 (1878). That was also the rule at common law. 2 W. Blackstone, Commentaries on the Laws of England *182 (Lewis’s ed. 1898), observes that when “both are seised of the entirety, per tout, etnon per my [by all and not by the half] ... neither the husband nor the wife can dispose of any part without the assent of the other____” Because a judgment against either the husband or the wife does not attach to the judgment debtor’s interest in the entirety, Hertz v. Mills, 166 Md. at 496, 171 A. at 711, the husband and wife may convey the property to a third party free and clear of the judgment. Hertz v. Mills, supra; Jordan y. Reynolds, 105 Md. 288, 66 A. 37 (1907).

Md. Ann. Code art. 45, § 1, provides:

“The property, real and personal, belonging to a woman at the time of her marriage, and all the property which she may acquire or receive after her marriage, by purchase, gift, grant, devise, bequest, descent, in the course of distribution, by her own skill, labor or personal exertions, or in any other manner, shall be protected from the debts of the husband, and not in any way be liable for the payment thereof; provided, that no acquisition of property passing from one spouse to the other, shall be valid if the same has been made or granted in prejudice of the rights of subsisting creditors, who, however, must assert their claims within three years after the acquisition of the property, or be absolutely barred, and, for the purpose of asserting their rights under this section, claims of creditors not yet due and matured shall be considered as due and matured.”

The statute permits a married woman to own property, through gift, purchase, grant, devise, or otherwise. We have previously observed that the case law of this State allows a husband and wife to convey good and merchantable title to a third party despite a judgment against either the husband or the wife, but not both. We have also noted that a husband or wife may convey his or her interest in tenants by the entirety property to the other spouse, without consideration and for the purpose of preventing the enforcement of a judgment against the grantor. Accepting, then, as we must, that Earl Watterson did everything attributable to him in the “Stipulation of Facts” does not sap the vitality from Mrs. Watterson’s creation of a spendthrift trust for her husband.

When, as here, a husband and wife hold title as tenants by the entireties, the judgment creditor of the husband or of the wife has no lien against the property held as entireties, and no standing to complain of a conveyance which prevents the property from falling into his grasp. C.I.T. Corp. v. Flint, 333 Pa. 350, 5 A. 2d 126 (1939).

Furthermore, even if the acts performed by the husband and wife were in contemplation of death of the wife, we fail to perceive why that would alter the situation and cause the spendthrift trust to be deemed invalid. The husband and wife, under existing Maryland law, had a right to dispose of the property sans regard to the judgment against the husband. Hertz v. Mills, supra. The law does not specify the time frame in which the conveyance may be made, nor does it permit a court to conclude, simply because the wife died within a relatively short period of time from the dates of the conveyance and execution of the will, that the husband is, in fact, the settlor of the trust. What the trial court has done is to strip from the decedent her right to dispose of her estate, within the confines of the law, as she best determines. It has assessed against her a penalty for dying soon after the conveyance and the execution of her will, and has permitted her separate estate to be invaded to satisfy her husband’s creditors.

We shall reverse. In doing so, we note that the creditor is in no worse position than if the wife were still living with the property in her name or she had survived her husband.

Judgment reversed.

Costs to be paid by appellee.

      . According to G. Bogert’s Handbook of the Law of Trusts § 40 (5th ed. 1973), the courts of England “have consistently opposed such trusts” on the ground that they involve “alienability as an inherent characteristic” and “that a clause against transferring equitable interests is repugnant. .•..” Id. See also Brandon v. Robinson, 18 Ves. Jr. 429; Graves v. Dolphin, 1 Sim. 66; Green v. Spicer, 1 Russ & Myl. 395; Younghusband v. Gisborne, 1 Collyer 400.
      The first case in which the matter of a spendthrift trust was litigated was Ashhurst’s Appeal, 77 Pa. 464 (1875). The court upheld a trust but never used the term “spendthrift trust” although that expression is present in the headnote. “[A] trust for a spendthrift’’ first appeared in Overman’s Appeal, 88 Pa. 276 (1878), where the court stated that such a trust “will be upheld in equity, is a settled doctrine of this state, and rests on the donor’s right of dominion over his own property for a reasonable time.” 88 Pa. at 281. Later, in Thackara v. Mintzer, 100 Pa. 151 (1882), the court again upheld the spendthrift trust without ever referring to it as such.

      . The dictum in Nichols v. Eaton, supra, is credited by E. Griswold in Spendthrift Trusts S 26 (2d ed. 1947) as “the greatest single factor in the establishment of spendthrift trusts in the United States.” That dictum was grounded on early Pennsylvania cases, which, at the time of the decisions, lacked equity powers. Id. Griswold suggests that had the courts that cited the early Pennsylvania opinions been cognizant of the fact that the Pennsylvania courts did not then possess equity power, the dictum in Nichols may never have been penned and spendthrift trusts might never have reached the acceptance now accorded them. Id.

      . The record discloses that there are at least six (6) other judgment creditors with total judgments of approximately $72,500, exclusive of interest and costs.

      . The estate of curtesy was abolished by 1969 Md. Laws ch. 3, § 1, which became effective January 1,1970. The act was codified as Md. Ann. Code art. 93, § 3-202. The Legislature, by 1974 Md. Laws ch. 11, repealed Article 93, as well as other statutes relating to estates and trusts and reenacted them with suitable modifications as Maryland Annotated Code, Estates and Trusts Article. The title, section number, and wording were carried forward into the new statute in precisely the same form. See Md. Est. & Trusts Code Ann. § 3-202.