author: Thompson, J.,

text:
    EDWARD L. KLARMAN v. JOSEPH HARASZTI
    [No. 390,
    September Term, 1974.]

      Decided February 14, 1975.

    The cause was argued before Orth, C. J., and Thompson and Menchine, JJ.

      Francis J. Meagher, with whom were Goodman, Meagher & Enoch on the brief, for appellant.

      Hartman J. Miller, with whom was Eugene A. Edgett, Jr., on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The interesting question presented in this appeal concerns the right of a motorist facing a yellow traffic signal to enter an intersection and the interplay of that right with the right of a motorist entering from the opposite direction and making a left turn therein. We hold that a motorist facing the yellow light is entitled to enter the intersection and having thus entered the intersection legally is entitled to proceed through regardless of a change in the traffic signal from yellow to red during the course of his passage.

The rights and duties of parties at intersections controlled by signal lights are statutory and governed by Md. Code, Art. 66V2, § 11-202 (1970 Repl. Vol.) which provides as follows:

“ (2) Steady yellow indication.
“ (i) Vehicular traffic facing a steady yellow signal is thereby warned that the related green movement is being terminated or that a red indication will be exhibited immediately thereafter when vehicular traffic shall not enter the intersection.
“ (ii) Pedestrians facing a steady yellow signal, unless otherwise directed by a pedestrian control signal as provided in § 11-203, are thereby advised that there is insufficient time to cross the roadway before a red indication is shown, and no pedestrian shall then start to cross the roadway.”

In construing the meaning of the statute we are assisted by written reports from two legislative committees as well as the history of the Uniform Act of which § 11-202 is a part. Such a rich source of material is not frequently available to show the meaning of a Maryland statute. Before reviewing those materials, however, we’pause to quote the instant statute as it existed prior to the enactment of the statute in its present form.

“§ 193. Traffic-control signal legend.

“(b) Amber alone or ‘caution’ when shown following the green or ‘go ’ signal.

“(1) Vehicles facing the signal shall stop before entering the nearest crosswalk at the intersection, but if such stop cannot be made in safety a vehicle may be driven cautiously through the intersection.

“(2) Pedestrians facing such signal are thereby advised that there is insufficient time to cross the roadway, and any pedestrian then starting to cross shall yield the right-of-way to all vehicles.”

We make two observations: (1) that in the present statute although a pedestrian facing a yellow light is directed to stop, a motor vehicle in such a position is not, and (2) that the specific requirement that a motorist facing a yellow light shall stop unless the stop could not be made in safety was omitted by the legislature in the current statute.

On September 1, 1968, a special committee appointed by the Legislative Council to revise the Motor Vehicle Laws of the State of Maryland, popularly known as the Warnken Commission, reported that the rules of the road in the Maryland Code, a portion of which we are now considering, should be made to conform as closely as possible with the provisions of the Uniform Vehicle Code. The committee report stated: On October 7, 1969, a special legislative committee reported after its several-month review of the Warnken Commission report. That committee made a number of changes with reference to the rules of the road but no changes were made in § 11-202. It will be observed that the Maryland statute as it currently reads corresponds exactly with the provisions of the Uniform Vehicle Code. The historical note following § 11-202 of the Code is interesting and indeed appears to us to be dispositive of the rights of a motorist facing a yellow light. Traffic Laws Annotated (1972 Ed.) on the Rules of the Road § 11-202 and its Historical Note state as follows:

“This is the area of vehicle law in which the need for national uniformity is greatest, and the UVC [Uniform Vehicle Code] has set the standard.”
“§ 11-202 — Traffic-control Signal Legend
“(b) Steady yellow indication 40
“1. Vehicular traffic facing a steady yellow signal is thereby warned that the related green movement is being terminated or that a red indication will be exhibited immediately thereafter when vehicular traffic shall not enter the intersection.
Historical Note
“Footnote 40, which has been in the Code in its present form since 1934 provides:
“It is recommended that the color yellow be used only before red. If yellow is used following the red, traffic facing the signal has a tendency to start before the green signal appears, causing interference with cross traffic clearing the intersection.
“The historical development of Code provisions on the meaning of a yellow signal following a green one indicates a significant change in the behavior expected of a driver facing such a signal.
“The difference between the 1962 Code and the original Code provisions on the meaning of a yellow signal can readily be seen by comparing the two. UVC Act IV, § 12(a) (Rev. ed. 1930) provided:
“Yellow or ‘Caution,’ when shown alone following the green or ‘Go’ — Traffic facing the signal shall stop before entering the nearest crosswalk at the intersection unless so close to the intersection that a stop cannot be made in safety.
“The 1934 and 1938 Codes made the 1930 provision on yellow signals more explicit. Those editions provided:
“(b) Yellow alone or ‘Caution’ when shown following the green or ‘Go’ signal.
“1. Vehicular traffic facing the signal shall stop before entering the nearest crosswalk at the intersection, but if such stop cannot be made in safety a vehicle may be driven cautiously through the intersection.
“UVC Act V, § 32(b) 1 (Rev. ed. 1934); UVC Act V, § 34 (b) 1 (Rev. ed. 1938). The first Code provisions on a steady yellow signal following a green one thus provided that, as a general rule, drivers should not proceed through the intersection. The 1962 Code, on the other hand, provides that a steady yellow signal warns a driver that a red signal will be exhibited immediately at which time he shall not enter the intersection. The tacit assumption of the 1962 Code is, of course, that a driver may lawfully enter the intersection on a yellow signal and lawfully continue across it even though a red signal may be shown during the time of such crossing. See UVC § ll-202(a)l (Rev. ed. 1962) requiring drivers facing a green signal on an intersecting street to yield the right of way to vehicles ‘lawfully within the intersection.’
“Actually, except for circumstances that would make it unsafe to stop, the original Code provisions on yellow signals required the same conduct on the part of drivers as the Code provision on red or stop signals. Thus, it was not surprising that in 1944, the National Committee substantially amended the Code’s yellow signal provision:
“Vehicular traffic facing the signal is thereby warned that the red or ‘Stop’ signal will be exhibited immediately thereafter and such vehicular traffic shall not enter or be crossing the intersection when the red or ‘Stop’ signal is exhibited. (Emphasis added.)
“UVC Act V, § 34(b)l (Rev. ed. 1944). This provision remained in the Code without amendment until 1962 and, in fact, served as the basis for the 1962 Code provision. UVC Act V, § 34(b)l (Rev. eds. 1948, 1952); UVC § ll-202(b)l (Rev. eds. 1954, 1956, 1962). The 1962 Code, however, contains one very substantial change. The italicized clause, ‘or be crossing, was deleted by the National Committee in 1962 so that a driver may now both legally enter the intersection on yellow and legally clear the intersection for use by traffic on intersecting streets even though a red signal is displayed while he is in the intersection. See discussion by Fisher, Vehicle Traffic Law 417 (1961).” (Emphasis added).

We have found four cases construing the yellow light, portion of the statute as it now reads in Maryland. They all support our holding. Fuentes v. Panella, 120 Cal. App. 2d 175, 260 P. 2d 853 (1953); Prather v. Phillis Wheatley Association, 8 Ohio App. 2d 91, 193 N.E.2d 290 (1963); Stann v. Taus & Associates, 79 Ohio L. Abs. 217, 151 N.E.2d 756 (1958); Case v. Carter, 103 Ohio App. 11, 142 N.E.2d 670 (1956).

I FACTS

The record shows that Edward L. Klarman, the appellant, brought suit in the Superior Court of Baltimore City to recover damages as the result of an automobile accident which occurred about 11 p.m. on January 25, 1971. He was proceeding south on Moravia Road at its intersection with Sinclair Lane when Dr. Joseph Haraszti, the defendant/appellee who had been proceeding in a northerly direction on Moravia Road was making a left turn into Sinclair Lane.

The intersection was controlled by a traffic light with a sequence of signals from green to amber to red to green with no left turn arrows or breaks in the sequence for left turns. There was testimony which would support a finding that Klarman, the appellant (1) entered the intersection when the light facing him was green, (2) entered the intersection when the light facing him was yellow, and (3) entered the intersection when the light facing him was red. There was testimony that Dr. Haraszti entered the intersection when the light facing him was green and that he entered the intersection when the light facing him was yellow. The trial court in pertinent part instructed the jury in his supplemental instructions as follows:

“Ladies and gentlemen of the Jury, I would like to amplify my instructions to you after conferring with both Counsel, amplify my instructions to you in this respect: if you should find from the evidence that the Plaintiff, Mr. Klarman, entered the intersection with the green light in his favor, then your verdict should be for the Plaintiff. If you should find from the evidence that the Plaintiff, Mr. Klarman, entered the intersection against the red light, your verdict should be for the Defendant. Now, if you should find that the Plaintiff, while proceeding south on Moravia Boulevard had the amber, that is, the yellow light facing him at the time he was entering the intersection but he could not stop with safety, then he had a right to proceed cautiously through the intersection and in that situation he would be considered as lawfully within the intersection. Now, if you should find from the evidence that the Plaintiff, Mr. Klarman, had the yellow or amber light in his face as he was about to enter the intersection and that he could have with the exercise of reasonable care brought his vehicle to a safe and complete stop prior to entering the intersection and thereby avoiding the collision, then you should find for the Defendant.”

The appellant promptly objected to these instructions on the basis that the court had failed to advise the jury that the plaintiff had a right to proceed cautiously through the intersection if he faced a yellow light and having entered the intersection lawfully the proximate cause of the accident was the appellee’s negligence.

II APPLICATION OF THE LAW

On appeal appellant argues that he had the right to enter the intersection on the yellow light and, therefore, the sole proximate cause of the collision was the appellee’s left turn which was made at a time when the appellant’s vehicle was “within the intersection or so close thereto as to constitute an immediate hazard.” Md. Code, Art. 66V2, § 11-402.

As we have indicated we agree that the trial court’s instruction was erroneous. It is apparent that this instruction was based upon the prior statute which required the appellant to stop if he faced a yellow light unless he could not do so with safety. The court should have granted appellant’s requested instruction No. 11: “If you find the plaintiff entered the intersection while the traffic light for him was yellow, then your verdict must be for the plaintiff as a matter of law for the proximate cause of the collision, then, would be the action of the defendant making a left turn” or should have covered the legal principle in similar language.

The history of the statute reveals that the intent of the writers of the Uniform Code, which must be imputed to the Maryland Legislature, was to all but equate the rights of a motorist facing a yellow light to those of a motorist facing a green light. Although the Court of Appeals has applied the boulevard rule to a motorist facing a green light, Eastern Contractors, Inc. v. State, 225 Md. 112, 169 A. 2d 430 (1961) and to a motorist making a left turn insofar as a motorist facing a red light was concerned, Clemons v. Bullock, 250 Md. 586, 244 A. 2d 240 (1968), it has yet to decide the applicability of the boulevard rule with reference to a left turning motorist and a motorist entering the intersection on a yellow light. We, like the Court of Appeals in Bennett v. Bass, 248 Md. 260, 235 A. 2d 715 (1967) do not have to decide that question. In that case both motorists entered the intersection on a green light and one made a left turn in front of the other. The Court said at 265:

“In order for us to affirm the lower court which resolved the case in the appellee’s favor, it is unnecessary for us to consider his contention that the Boulevard Rule should apply. Unquestionably, the instant case has some overtones found in those cases wherein the Boulevard Rule is applicable. However, it does not present the classic situation of intersection intrusion by the unfavored vehicle into the path of the favored vehicle wherein the Boulevard Rule comes into play. See, e.g., Thompson v. Terry, 245 Md. 480, 226 A. 2d 540 (1967).
“The record fails to reveal any evidence of excessive speed. Although it is true that appellee’s vision, like that of Mrs. Ellis, was obstructed by the large truck standing in the eastbound left-turn lane of Eastern Avenue, the light had been green for some time and the appellee had the right to assume that another vehicle would not unexpectedly pull into his course of travel. The situation is therefore distinguishable from Valench, supra, where the light had just turned green and the defendant proceeded blindly into the intersection while a streetcar blocked his view of vehicles attempting to clear the intersection as the light changed. Under those circumstances, the Court indicated that a motorist at a stop light waiting for it to turn green should expect that a vehicle on the other road might still be crossing the intersection when the light changed. Furthermore, the record is devoid of evidence that the appellee was inattentive in the operation of his vehicle.”

In the instant case, like Bass, there was no evidence that the appellant was inattentive in the operation of his vehicle. There was evidence that the appellant “came quite fast and it seemed to me he came through the light and the whole wreckage came toward me.” “This little car [the appellant’s] came from my left very fast.” “He seemed to come from nowhere. I just caught him out of the corner of my eye. He just shot in there like a bullet.” Such statements, however, are mere “general adjectival descriptions” and as such are not sufficient alone to establish that the appellant was traveling at an excessive speed. See: Fowler v. Smith, 240 Md. 240, 246, 213 A. 2d 549 (1965); Jones v. Baltimore Transit Company, 211 Md. 423, 428, 127 A. 2d 649 (1956); Willey v. Glass, 242 Md. 156, 163, 218 A. 2d 212 (1966) (dicta).

Both parties to the appeal rely on the case of Durham v. United States, 174 F. Supp. 410 (D. Md. 1959) in which a speeding vehicle entered an intersection on a yellow light and collided with a vehicle making a left turn. The Court held the speed and the turn were both a proximate cause of the accident. We find the case of no value here because there is no evidence sufficient to establish that the appellant was speeding when he entered the intersection and because the Maryland statute on the right of motorists facing a yellow light has been substantially changed since Durham was decided as discussed above.

Appellant also contends that the trial judge erred in refusing to direct a verdict in his favor, in refusing to instruct the jury that the appellee was guilty of negligence as a matter of law and that the appellant was free from contributory negligence as a matter of law. The arguments are devoid of merit because the witness Kammerman testified the appellant entered the intersection when the light facing him was red. Therefore instructions such as these would have been improper. Clemmons v. Bullock, supra. Appellant also argues that the trial court’s instructions were confusing because of the change between those he gave originally and those he gave in his supplemental instructions. We need not discuss the issue because it is very unlikely to be repeated on retrial.

Judgment reversed.

Costs to abide result of new trial.

      . § 11-202 was enacted by Chapter 534 of the Laws of Maryland 1970. Its effective date was January 1, 1971. The prior statute was in Md. Code, Art. 66V2, § 193 (1967 Repl. Vol.) and was enacted by the Laws of Maryland 1943, Chapter 1007.

      . In the regular charge the trial judge had read § 11-202 in its current form. We do not think that is sufficient to overcome the error in the final charge.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    JAMES M. QUIGLEY v. FRED I. SIMON et ux.
    [No. 398,
    September Term, 1974.]

      Decided February 14, 1975.

    The cause was argued before Moylan, Powers and Lowe, JJ.

      Bernard F. Goldberg for appellant.

      Fred I. Simon for appellees.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, James M. Quigley, sued the appellees, Fred I. Simon and wife, for conversion of various work tools, equipment and material and for damages. At the end of five days of jury trial, the presiding judge granted a motion for directed verdict in favor of the defendant-appellees at the end of the plaintiffs case. The appellant appeals from that grant.

Shorn of unessentials, the appellant rented a townhouse property, 13027 Marquette Lane in Bowie, from the appellees on July 3, 1971. The lease was to run for three months. The appellant intended to operate a dental crown and bridge laboratory. Because of zoning difficulties, that plan aborted. Rent was paid for July but not for August and September.

On September 8, the appellees removed various items of material, tools and equipment and held them as a distraint against the unpaid rent. The appellant placed a value on the distrained goods of $4,464. The appellees characterized them as “trash and rubbish” although they only released one set of dental appliances to a dentist for $360 and later sold the remaining goods for $100. The value, however, is immaterial for purposes of the motion.

The appellees refused to release the goods to the appellant and refused to apprise him of the location of the goods. They were, it was revealed, in a padlocked farmhouse owned by the appellees. The appellees instituted formal attachment proceedings on September 29, 1971. The goods were not ultimately located and attached by the sheriff until November 11, 1971.

It is clear that the trial judge, in granting the motion, relied primarily upon the common law as to distress for rent, which permitted, under certain circumstances, self-help on the part of the distraining landlord:

“Now, the plaintiff seems to ground his case on the fact that the landlord had no right to seize this material and move it and then execute upon it and sell it. Now, it’s with that premise in the law that the Court has considerable difficulty. There isn’t any dispute about the fact that the landlord did pursue the legal process and eventually it was sold under that process.
My understanding of the history of the landlord and tenant in common law, a landlord had to remove possessions of a tenant who did not pay his rent, to another place. He did not store them on the demised premises unless the tenant consented. That ancient practice has been abrogated, to some extent, in this case by the statute which permits the landlord to seize goods on the premises and deal with them there without having to move them. But I would say that my understanding of the law is the option is still with the landlord and he may follow the older practice if he desires to clear out his equipment, clear out his premises of the other equipment and ready it for re-lease.
I have done a little research on my own and I have considered this matter as carefully as I know how and I fail to see how there can be any action against the landlord who seizes a tenant’s goods on the property for rent that is admittedly, according to the testimony in this case, to be due and owing. If there was rent due and owing, then whether the landlord’s action in seizing the goods was motivated by malice or evil intent is immaterial. That’s the Maryland law. Whatever his motive may have been in seizing the goods, if the rent is due and in arrears, malicious or not, the distraint lies.”

The common law as to distress for rent, however, has now been pre-empted by statute. For the former law, see Rhynhart, Distress, 13 Md.L.Rev. 185 (1953). It is now completely covered by Maryland Code, Real Property Article, Title VIII, “Landlord and Tenant,” Subtitle 3, “Distress for Rent.” Whereas distress at the common law was a remedy and not an action, see Rhynhart, op. cit., it is now expressly made an action by Sec. 8-302 (a):

“Distress for rent is an action at law and shall be brought as provided in this section.”

It was Chapter 915 of the Laws of 1965, effective January 1, 1966, which “completely revised and formalized the law of distress.” Universal C. I. T. Credit Corp. v. Congressional Motors, Inc., 246 Md. 380, 382. In describing the situation antecedent to the change and contributing to the need for the change, Chief Judge Hammond said in that case, at 382-383:

“Before 1966 distress was a mixture of rules of the common law, many stemming from feudal times, implementing and supplementing Maryland legislation and long-standing practice.

In 1964 the Committee on Laws of the Maryland State Bar Association said in reporting on the bill which later became Ch. 915 of the Laws of 1965:

‘The present distraint law in Maryland is archaic in that a landlord’s remedy of distress is exercised without supervision by any court in spite of the substantial rights, and important interests, of tenants and landlords which are involved. The sheriff or constable now acts merely as an agent of the landlord. No court record is made with respect to a distress proceeding including the levy and sale of goods on the leased premises.’ (69 Transactions of the Maryland State Bar Association 305.)

Under the law as now codified, the procedures are expressly set out that a landlord must follow to distrain for rent, e.g. Section 8-303, dealing with the form and contents of the petition; Section 8-304, dealing with the show cause order; Section 8-305, dealing with the levy, inventory and return; Section 8-308, dealing with the requirement that the goods levied on under distress shall be held in custodia legis; etc. Those procedures were not even arguably followed by the appellees here, who proceeded, as they might have at the common law, by way of self-help.

The indispensable predicate for the granting of the motion for directed verdict was that the common law remedy was still viable. It is not. Under the circumstances, the motion should not have been granted.

Judgment reversed; case remanded for new trial; costs to be paid by appellees.


author:
Orth, C. J.,

      Menchine, J.,

      Thompson, J.,

text:
    BERNADINE BOYD v. WILLIAM D. BOYD
    [No. 412,
    September Term, 1974.]

      Decided February 14, 1975.

      The cause was argued before Orth, C. J., and Thompson and Menchine, JJ.

      Norman Hochberg, with whom were Paul J. Bailey, Paul, Perry & Hochberg and John S. Hyle on the brief, for appellant.
    Submitted on brief by Walter B. Dorsey for appellee.
   Orth, C. J.,

delivered the opinion of the Court. Menchine, J., concurs in part and dissents in part and filed an opinion concurring in part and dissenting in part at page 512 infra. Thompson, J., dissents and filed a dissenting opinion at page 513 infra.

The seeds from which the controversy culminating in this appeal grew were sowed on 4 September 1924 when Mary E. Davis (testatrix) executed a will which was her last will and testament upon her death in 1928 during the month of June. After provisions for the payment of her just debts, funeral charges and a legacy of $300, she gave, devised, and bequeathed all the property of which she may die seised and possessed to her husband, Frederick C. Davis, for his use during his single life, and after his death or remarriage, to her daughter, Mary Pearl Boyd, during her natural life. She disposed of the remainder interest in her property in three succeeding paragraphs, which, for ease of reference, we designate as clause 1, clause 2, and clause 3.

Clause 1:

“And after the death of my said daughter, then said Estate including Real, personal and mixed to my two grandchildren, George Frederick Boyd and William Dunbar Boyd, absolute and in fee simple to do with as they may see fit and proper provided however that said estate shall not pass unto said grandchildren until they shall arrive at the age of twenty one years, share and share alike, but the income to be paid to their legal guardian during their minority for their education and maintenance.”

Clause 2:

“And it is my Will that in the event of the death of either of my grandchildren then such share shall go absolutely to the other.”

Clause 3:

“And in the event both my grandchildren should die before arriving at the age of twenty one years, then I give bequeath and devise all said property so mentioned to St. Joseph Roman Catholic Church at Morganza, Maryland absolutely but not until all the Covenants and conditions heretofore mentioned have taken place.”

Although the will speaks in terms of all of the testatrix’s property, we are concerned here only with certain real property of which she died seised and possessed, namely, a 190 acre farm located in the 4th Election District of Saint Mary’s County which was conveyed to her, her heirs and assigns, forever in fee simple by a deed from one Mary E. Hayden dated 27 November 1895 and recorded among the Land Records of said County in Liber J.J.G. No. 3, folio 269.

As we have indicated, the last life tenant died in 1967 and one of the remaindermen, George Frederick Boyd, died in 1968. Questions as to the disposition of the property under the will, however, did not ripen into legal action until 19 December 1973. On that date William Dunbar Boyd (appellee) instituted a declaratory judgment action in the Circuit Court for Saint Mary’s County against Bernadine Boyd (appellant), George Frederick Boyd, Jr. and Bernadine Johnson. The narratio, as orally amended at trial, asked that the court construe the will and declare the rights and respective interests of the parties thereunder. It was appellee’s view that the will created a joint estate in the property in the two grandsons, or in the alternative, “a tenancy in common with a right of survivorship” so that on the death of George Frederick Boyd the entire estate passed to appellee. Appellant claimed that the will created an estate in common as to the grandsons so that she was entitled to one-half of the estate under the will of her husband which devised and bequeathed all of his property to her.

The chancellor, considering that the only question before him was “with respect to the devise in question: namely, does it create a right of survivorship between the two grandsons of the testatrix”, construed the will as creating “a tenancy in common with William Dunbar Boyd and George Frederick Boyd, with right of survivorship.” He adjudged that because George Frederick Boyd was “now deceased, title to the entire property ... is now vested absolute in fee simple in William Dunbar Boyd, and the Defendant, Bernadine Boyd, is denied any interest in said property.” A decree to such effect was entered on 7 June 1974. The appeal is from that decree.

Appellee bases his claim that he holds an absolute estate in fee simple in the whole of the property on three alternative grounds — that the will created a joint tenancy in him and his brother, or that it created a tenancy in common in them “with a right of survivorship”, or that, in any event, the testatrix intended that a fee simple estate ultimately vest in the survivor of him and his brother.

The ascertainment and effectuation of the intention of the testator is controlling in the construction of wills. Recognition of this fundamental axiom as the “guiding star” of testamentary construction has been apparent in countless decisions. The axiom has been stated in a variety of ways. 57 Am. Jur. Wills § 1133. Our Court of Appeals has said: “The general principle in the construction of wills is that all parts of a will are to be construed in relation to each other, so as, if possible, to form one consistent whole. The cardinal policy is to carry out the intention of the testator as deduced from the four corners of the will.” Veditz v. Athey, 239 Md. 435, 448, and cases cited therein. “The primary object in construing a will is to ascertain the intention of the testator from the whole instrument, or from the instrument as read in the light of surrounding circumstances and then to give effect to that intention if it be consistent with the rules and policies of the law. What a testator meant must be gathered from what he said in the will, as viewed from the standpoint he occupied at the time of its execution. Miller, Construction of Wills, secs. 8, 9. And all ‘the clauses and every word in a will should receive such a construction as that, while effect is given to each, they are all made to harmonize with each other, so as to reach the general plan or scope of the entire will.’ Miller, op. cit., sec. 11.” McIntyre v. Byrne, 217 Md. 71, 77.

We reject the notion that the testatrix intended to create a joint tenancy in her two grandsons. In ascertaining the intention of the testatrix in this connection we consider the statutory mandate that joint tenancies must be created by express provision. Brewer v. Bowersox, 92 Md. 567. Although the statutory requirement is only one of clear manifestation or intention, and not one of particular words, the paramount factor of the intention of the grantor must be so clearly expressed as to leave no doubt of the intention to create a joint tenancy. Alexander v. Boyer, 253 Md. 511; Register of Wills v. Madine, 242 Md. 437; Marshall v. Security Storage & Trust Co., 155 Md. 649; Michael v. Lucas, 152 Md. 512. There was no such clear expression of intention to create a joint tenancy here. On the contrary, clause 1 manifests an intention to create a tenancy in common. “In wills the expressions, ‘equally to be divided,’ ‘share and share alike,’ ‘respectively between and amongst them,’ have been held to create a tenancy in common. 2 Bl. Comm. ch. 12, note by Chitty, and in 2 Powell on Devises, ch. 18, pages 370, 371, it is said: ‘It may be stated generally that all expressions importing division by equal or unequal shares, or referring to the devisees as owners of respective or distinct interests, and even words simply denoting equality, will have this effect.’ ” Gilpin v. Hollingsworth, 3 Md. 190, 195. After the death of the second life tenant, the devise in clause 1 is to the two grandsons “absolute and in fee simple to do with as they may see fit and proper . . . share and share alike.” Beyond doubt, this provision, standing alone, gives the property to the devisees as tenants in common. Neither clause 2 nor clause 3 derogates from the creation of a tenancy in common. It is true that clause 2 speaks to survivorship and that survivorship is the chief incident of joint tenancy. Michael v. Lucas, supra, at 514. But as is pointed out infra, clause 2, when the general plan or scope of the entire will is considered, does not demonstrate any intention to create a joint tenancy much less such a clear intention as to leave no doubt. Clause 3 patently expresses no implication of joint tenancy. In short, a tenancy in common as to the grandsons is more consistent with the general context of the will than a joint tenancy, and the devise to them should be so considered, especially in the light of the statutory mandate. McIntosh v. Rieman, 160 Md. 368, 373.

We also reject the theory that the devise to the grandsons creates “a tenancy in common with a right of survivorship.” In support of this conception, appellee relies upon Mitchell v. Frederick, 166 Md. 42, in which the Court of Appeals apparently recognized such a cotenancy. Whatever the actual holding in Mitchell may be, see Annot., 92 A.L.R. 1420 and Annot., 1 A.L.R. 2d, 247, but see East. Shore v. Bank of Somerset, 253 Md. 525, 532, and Schilbach v. Schilbach, 171 Md. 405, 407-408, Mitchell is simply not apposite. It did not concern a testamentary disposition but a grant to two persons as tenants by the entireties when they were in fact not legally married, and was decided with no reference to executory limitations. As shall be seen, the fact that the case here involves executory devises puts it in a completely different posture than Mitchell.

What all this leads up to is that we have no difficulty whatever in ascertaining and effectuating the intention of the testatrix because it is manifest from all the provisions, clauses and words of the will itself. Clauses 1, 2 and 3 are in complete harmony, and effect may be given to each of them. What the will does with respect to the grandsons, is to create in them a vested remainder as tenants in common in the property in fee simple subject to two shifting executory interests. It will or may become a present possessory interest immediately and automatically at the death of the second life tenant. Their full enjoyment of their interest is deferred until the termination of the life estates and until they attain the age of 21 years, but it surely vests in them at the testatrix’s death because, in addition to the usual reasons for the early vesting of estates, it is by the vesting that the income may be paid to their legal guardian for their education and maintenance. See Safe Deposit & Trust Company v. Bouse, 181 Md. 351; Gittinger v. F. & M. National Bank, 180 Md. 640; Plitt v. Peppler, 167 Md. 252. See also Simes & Smith, The Law of Future Interests § 113 (2d ed. 1956).

The Court of Appeals discussed executory devises in Starr v. Starr M. P. Church, 112 Md. 171,181-182:

“A limitation after a fee cannot take effect as a remainder, for a remainder must await the regular determination of the preceding estate on which it rests, and cannot arise in derogation of it, but such a limitation may be good as an executory devise. The reasons for this rule, which is definite and well established, would be interesting to discuss, but it would unnecessarily prolong this opinion to do more than state it, with some of the authorities by which it is fully recognized. 2 Blackstone, 164-171; 4 Kent, 198-201; 16 Cyc. 648-650; 2 Wash. R. P., secs. 972-3; 1 Jarman on Wills, 822-825; Hill v. Hill et al., 5 G. & J. 87; Battle Sq. Church v. Grant et al., 3 Gray, 142. Blackstone (2 Blackstone, 172) says that ‘An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency.’ It is said in 4 Kent, 264, that ‘An executory devise is a limitation by will of a future contingent interest in lands, contrary to the rules of limitations of contingent estates in conveyances at common law’ as ‘when the devisor parts with his whole estate, but, upon some contingency, qualifies the disposition of it, and limits an estate on that contingency.’ And Mr. Jarman says: ‘It will be apparent from what has been stated, that every devise to a person in derogation of, or substitution for, a preceding estate in fee-simple is an executory devise.’ 1 Jarman on Wills, 824. See also Battle Square Church v. Grant, supra; 2 Wash. R.P., sec.973; Biscoe v. Biscoe, 6 G. & J. 202; Allender v. Sussan, 33 Md. 11.”

The law to this effect was early laid down in Dallam v. Dallam’s Lessee, 7 H. & J. 220, which is quoted with approval in Deets v. Riggins, 176 Md. 520. Fenby v. Johnson, 21 Md. 106, concerned an executory devise. The devise in Fenby was to the children of the testator “equally.” It continued in pertinent part: “But it is my will, that in case both my children shall die in their minority, unmarried, without issue, and intestate, then I give, devise and bequeath the same to my right heirs.” At 110. The testator had two children. One died in her minority, unmarried, without issue, and intestate. The other was in her minority at the time of the suit. The Court held, at 117:

“In the opinion of this court the children took under this devise as tenants in common in fee in the lands, and an absolute estate in the personalty, which vested upon the death of the testator; and the limitation over upon the contingency named in the will, was good as an executory devise. In such case the weight of authority, as well as of reason, is, that there is no implication of cross-remainders between the devisees, but in case of the death of one, the event which has actually happened, her estate devolved upon her heirs and personal representatives, subject however to be afterwards defeated by the happening of the contingency named in the will.”

The distinguishing characteristics of an executory interest in modern times are set out in Simes and Smith, The Law of Future Interests, § 221 (2d ed. 1956):

“First, on the happening of a condition or event, an estate vests in the holder of the executory interest, and it is not vested until that time. So long as it remains a future interest it is non-vested. Second, it must vest in some person other than the creator of the executory interest. Third, with the exception of the executory interest after the determinable fee and the fee simple conditional, it vests in derogation of a vested freehold estate and not at the termination of a freehold estate. Fourth, on the happening of the condition or event, it may become a present interest automatically; no entry or election being necessary.”

The devise here has each of these characteristics.

The first executory interest is created by clause 2. Initially, we must determine what the testatrix intended when she said: “And it is my Will that in the event of the death of either of my grandchildren then such share shall go absolutely to the other.” We must infer the intention from the four corners of the will. Miller, The Construction of Wills in Maryland, § 10 (1927) put it neatly and emphatically:

“Obviously the most simple and natural way to ascertain what a testator’s or grantor’s intention was, is to read what he has written, because what he has written was designed by him to express that intention. Just as he has written his will, it must stand. What he meant to say must be gathered from what he did say therein, as viewed from the standpoint he- then occupied. The intention which controls in the construction of a will is not the presumed intention of the testator, but the expressed intention. The question is not what the testator meant, as distinguished from what his words express; but simply what is the true meaning of his words; not merely what he meant, but what his words mean. The court is governed not by what the court may suppose to be the wish of the testator, but by what the testator says; and arguments based upon the supposed or known wishes of a testator are not to be considered unless such wishes are expressed in his will. A will is to be interpreted by what the testator has written, rather than by what he ought to have written; not from what he has omitted to say, but from the words he has used. The object of the court is not to make a will for the testator, and not to determine what he ought to have done, but to find out what he did intend, and the court will therefore carefully examine the language used in the will taken as a whole. But if a testator does not so express his intention that the court can ascertain it from the will and the surrounding circumstances, the intention cannot be carried out. The obligation of the court is to give effect to the testator’s expressed intention, and not to indulge in conjecture however strong; its province is not to speculate upon the intention of the testator, and it is not at liberty to do so. But where it is plain that the testator has not expressed himself as he intended and supposed he had done, and the defect arises from the omission of some word or words, and where it is certain what particular words were thus omitted, they may be supplied by intendment. But whatever may be the general intent of the testator, if it does not appear that he has omitted words intended to be used, it is not competent for the court, by intendment, to reconstruct the will to give effect to such intention.” (notes omitted)

Clause 2 presents two possibilities. It applies to pass absolutely the share of a grandchild dying to the grandchild surviving (a) upon the death of the first to die no matter when that death occurs, or (b) upon the death of the first to die before arriving at the age of 21 years, but not thereafter. Examining the language used in the will taken as a whole, and from the words used in clause 2, we think that the testatrix intended the second possibility. We find it plain that she did not express herself as she intended and supposed she had done. The defect obviously arises from the omission of some words, and it is certain what particular words were thus omitted. They were “before arriving at the age of twenty-one years.” We supply them by intendment so that clause 2 reads: “And it is my Will that in the event of the death of either of my grandchildren before arriving at the age of twenty-one years then such shares shall go absolutely to the other.”

We reach this conclusion because we find it apparent that the three clauses are interrelated and must be read together. When so read, it is inescapable that the testatrix intended that her estate: (i) go in equal shares to her two grandchildren if both survived to the age of 21 years; (ii) go to one of her grandchildren if only one survived to the age of 21 years; and (iii) go to the Church if both died before arriving at the age of 21 years. The language of the phrases “in the event of death of either of my grandchildren” (Clause 2); and “in the event both of my grandchildren should die” (Clause 3) manifestly implies events that may not occur. The American Heritage Dictionary of the English Language (1969) defines “in the event” as meaning “if it should happen; in case.” Yet, death is certain to occur. Only the time of death is uncertain. Use of the words “after the death of my said daughter” in Clause 1, clearly shows that the testatrix consciously intended a distinction in the use of the phrase “in the event.” Thus, the intent is clear. When the younger of the two grandchildren reaches 21 years of age, his brother already having attained that age, the basic purpose of the testatrix, as expressed in Clause 1, that they hold the property “absolute and in fee simple to do with as they may see fit and proper,” would be achieved, subject only to any life estate in the husband or daughter then existing. When Clause 2 is construed as we have indicated, the three clauses are in perfect complement. Clause 1 declares the basic or primary intent of the testatrix, that her two grandchildren equally share her bounty, provided that both attain the age of 21 years. Clause 2 serves merely to provide that if one of the grandchildren were to die before arriving at the age of 21 years, the survivor takes the entire estate. Clause 3 provides that if both of the grandchildren were to die before attaining the age of 21 years, the property passes to the Church.

As we have indicated, the will creates two shifting executory interests, the first by clause 2 and the second by clause 3. If both grandchildren attain the age of 21 years, both executory interests are defeated. Upon the first grandson to die before arriving at the age of 21 years, his vested undivided one-half interest as tenant in common is divested from him and shifted to the surviving grandson. If the surviving grandson has not obtained the age of 21 years, he is then vested with the entire remainder interest if there are outstanding life estates, or a present possessory fee simple estate if the life estates have terminated. But his estate is limited by the second executory interest, which is created by clause 3. If the surviving grandson dies before arriving at the age of 21 years, his interest is divested and shifts to the Church. The executory interest having vested, the Church is indefeasibly vested with the entire remainder if there are outstanding life estates, or a present possessory estate in fee simple absolute if the life estates have terminated. If the surviving grandson has reached 21 years of age when his brother dies before arriving at 21 years of age, the second executory limitation is no longer in effect. Therefore, the survivor becomes indefeasibly vested in the entire remainder if there are outstanding life estates or with a present possessory estate in fee simple absolute if the life estates have terminated.

We now apply the devise as so construed to the situation here. The first life estate had terminated. The second life estate had terminated and when it did, both grandsons had attained the age of 21 years. Therefore, on the death of the second life tenant, George Frederick Boyd and William Dunbar Boyd each was indefeasibly vested with an undivided one-half interest in fee simple as a tenant in common, both the executory interest in clause 2 and the executory interest in clause 3 having been defeated. Thus, upon the death of George Frederick Boyd his interest passed under his will to appellant. The decree of the court below was wrong in that it adjudged that title to the entire property “. . . is now vested in William Dunbar Boyd” and in that it denied Bernadine Boyd any interest in the property. Under the will of her husband, she received his one-half interest as a tenant in common.

Decree of 7 June 197J,. reversed; case remanded for entry of a decree in accordance with this opinion; costs to be paid by appellee.

Menchine, J.,

concurring in part and dissenting in part:

With the exception of that part of the Court’s opinion declaring that Clause 2 presents two possibilities and that our decision supplies by intendment the words “before arriving at the age of twenty-one years,” I subscribe fully to that opinion and concur in the result ánnounced therein.

I consider, however, that the contingencies to a present possessory interest in the grandchildren as devised by the Will were limited to:

1. The life estates of the husband and of the daughter of the testatrix, and
2. The limitation over upon the contingency set forth in Clause 1.

I regard Clause 2 and Clause 3 as having a bearing on such present possessory interest if and only if, one (under Clause 2) or both (under Clause 3) of the grandchildren were affected by the contingency fixed in Clause 1. The record shows, of course, that they were not so affected.

In short, it is my view that the totality of the provisions of Clauses 1, 2 and 3 compel the conclusion, on the admitted facts of this record, that the grandchildren became vested with a fee simple title as tenants in common under the plain language of the Will, with no second possibility arising under Clause 2 and with no necessity for supply of words by our decision to establish the intendment of the testatrix.

Thompson, J.,

dissenting:

I respectfully dissent. I fear the majority have engaged in the unwarranted task of rewriting Mrs. Davis’s will under the guise of interpretation.

The crucial clauses with which this case is concerned are as follows:

Clause 1:

“And after the death of my said daughter, then said Estate including Real, personal and mixed to my two grandchildren, George Frederick Boyd and William Dunbar Boyd, absolute and in fee simple to do with as they may see fit and proper provided however that said estate shall not pass unto said grandchildren until they shall arrive at the age of twenty one years, share and share alike, but the income to be paid to their legal guardian during their minority for their education and maintenance.”

Clause 2:

“And it is my Will that in the event of the death of either of my grandchildren then such share shall go absolutely to the other.”

Clause 3:

“And in the event both my grandchildren should die before arriving at the age of twenty one years, then I give bequeath and devise all said property so mentioned to St. Joseph Roman Catholic Church at Morganza, Maryland absolutely but not until all the Covenants and conditions heretofore mentioned have taken place.”

While I agree with the legal principles as stated by the majority, I must disagree with the way these principles have been applied. In order to reach their decision, the majority have added to Clause 2 the words “before arriving at the age of twenty-one years,” because, in their view, the testatrix’s use of the phrase “in the event of the death of either of my grandchildren” in Clause 2 showed an intent to add such a qualification. While words may be inserted to arrive at the true intent of a testator, insertion is permissible only where the intent is clear. Miller, The Construction of Wills in Maryland § 10 (1927). The majority find the requisite intent as discussed above in the use of the phrase “in the event of the death.” While the majority’s argument has some logical appeal, I do not think the intent of the testatrix is shown with sufficient certainty to allow insertion of a clause not in the original. The intent of the testatrix is more clearly shown by her careful use of the terms “arrive at the age of twenty one years” in Clause 1 and “before arriving at the age of twenty one years” in Clause 3 and by the omission of such language in Clause 2. To me, the omission of the material term in Clause 2 is more significant in determining the testatrix’s intent than the use of the phrase relied on by the majority. This omission indicates that the testatrix had a clear idea of the words to use when importance was to be attached to the attainment of age twenty one and of what words to omit when age was not intended to be a factor. By omitting mention of age only in Clause 2, the testatrix’s intent is clear: Age was to play no role in the operation of Clause 2.

I would affirm the chancellor’s decree even though, I, along with the majority, disagree with his reasoning.

      . The will was received in evidence at the trial below. According to a stipulation filed in open court, it is recorded among the records of the Register of Wills for Saint Mary’s County in Liber M.L.C. No. 1, folio 59. The stipulation indicates it was admitted to probate.

      . The testatrix was over 60 years of age when she died. At that time, her daughter was about 35 years old, and her two grandsons, George Frederick Boyd and William Dunbar Boyd, were 15 years of age and 6 years of age, respectively. Her daughter died on 29 October 1967. George Frederick Boyd died on 9 March 1968. These facts are from the stipulation filed at the trial. Included in the statement of facts in appellant’s brief are that the testatrix’s husband died 24 September 1928, that George Frederick Boyd was born 31 April 1913, and that William Dunbar Boyd was born 21 August 1923. Appellee, in his brief, said that appellant’s statement of facts was “substantially correct” and offered no changes or additions.

      . George Frederick Boyd left surviving a widow, Bernadine Boyd, and two childrer, George Frederick Boyd, Jr. and Bernadine Johnson. Bernadine Boyd testified that her husband died testate, that his will had been duly probated, and that under it she received all his property.

      . Bernadine Boyd testified to the effect that neither grandson lived on the property after the death of their mother but that they shared the income derived from it. On the death of George Frederick Boyd, appellant asked appellee what he wanted to do with the property. He said: “Well, it is half yours and half mine, and we’ll continue to work it as is, if George Frederick Junior will do so.” Apparently appellee received one-third of the income, appellant one-third and George Frederick Boyd, Jr. one-third, with taxes and repairs paid out of the latter two-thirds. What disrupted this arrangement is not apparent from the record.

      . George Frederick Boyd, Jr. and Bernadine Johnson demurred and were deleted as parties at the start of the trial upon motion of appellee. It was agreed that they were not proper parties “. . . in that any interest George F. Boyd may have had passed to his wife by his will.”

      . For a history of joint tenancy see Crowe v. Houseworth, 19 Md. App. 688.

      . For more than a century and a half, Maryland, by legislative enactment, has looked with disfavor upon an estate in joint tenancy. Acts 1822, ch. 162, inverted the common law rule favoring joint tenancies by providing:
      “That no deed devise or other instrument of writing which may hereafter be made or executed, shall be construed to create an estate in joint tenancy, unless in such deed, devise, or other instrument of writing, it is expressly provided that the property conveyed by such deed, devise, or other instrument of writing to be held in joint tenancy.”
      The Act appeared in the 1957 Code, Art. 50, § 9, in this language:
      “No deed, devise or other instrument of writing shall be construed to create an estate in joint tenancy, unless in such deed, devise or other instrument of writing it is expressly provided that the property hereby conveyed is to be held in joint tenancy.”
      Art. 50, § 9 was repealed by Acts 1972, ch. 349, effective 1 January 1973. The Act also repealed Art. 21, §§ 1 to 150 inclusive, and enacted in their place a new Article 21. Section 5-117 of the new Article 21 was identical with the former Art. 50, § 9 except that “will” was used in place of “devise.” In the revision of the Code, Art. 21 was in turn repealed by Acts 1974, ch. 12, § 1, effective 1 July 1974 and the Real Property Article enacted by § 2 of the Act, generally effective the same date. Real Property Art. § 2-117 reads:
      “No deed, will, or other written instrument which affects land or personal property, creates an estate in joint tenancy, unless the deed, will, or other written instrument expressly provides that the property granted is to be held in joint tenancy.”
      The Revisor noted that the only changes from Art. 21, § 5-117 were in style.

      . “The estate of joint tenancy, with its right of survivorship or jus accrescendi, was well known at common law and during the time of feudalism, because of the vital importance of tenure, was a favored estate.” Alexander v. Boyer, supra, at 517. At the common law joint tenants were seised pur my et pur tout, that is, although each joint tenant was seised of the whole, as between the joint tenants, each had an undivided interest as an individual which was equal to the interest of every other cotenant. Freeman, Joint Tenancy and Partition, § 12 (2d ed. 1886) quoting 2 Bl. Comm. 184, puts it thus: “But the grand incident of joint estates is the doctrine of survivorship, ‘by which when two or more persons are seised of a joint estate, for their own lives, or pur autre vie, . . . the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it may be.’ ”

      . Our attention has not been directed, nor are we aware of, a decision of the Court of Appeals since Mitchell in which “a tenancy in common with a right of survivorship” has been applied, discussed, or even mentioned. If a cotenancy of such a bastard nature is to be a part of the law of this State, this is not the appropriate case to render it viable.

      . Simes and Smith, The Law of Future Interests, § 221 (2d ed. 1956) traces the historical orgin of the executory interest. Of course, they must not be so limited as to offend the rule against perpetuities, and if they are not to vest within the period fixed by that rule they are void. Starr v. Starr M. P. Church, supra, at 182. Patently, the executory devises here do not offend the rule.

      . The general rule is that “The construction of a will, as of other written instruments, is a matter of law, and is for the court, and not a jury, to determine.” E. Miller, Construction of Wills § 8 (1927). See 4 Bowie-Parker: Page on Wills § 31.16 (1961); G. Thompson, Wills § 210 (3rd ed. 1947). The Court of Appeals said in Stokeley v. Gordon, 8 Md. 496, 510:
      “Where, from the face of the will, in connection with the surrounding circumstances, a case is disclosed, upon which the judicial mind can take hold, and upon principles of reason or logic, arrive at a conclusion in regard to the testator’s intention, then the case is one of construction for the court, and not one of intention depending upon extrinsic evidence and to be found by a jury. * * * And it may be added, that this question is a matter of construction for the court, appears manifest from the circumstance, that as far back as Lord Bacon’s time, a rule of interpretation was adopted by which cases of this kind were to be determined, and that that rule, with certain qualifications, has been repeated and recognized down to the present period.”
      See Warner v. Miltenberger, 21 Md. 264, 274.


text:
    GAIL LLOYD v. JOHN G. SCHUTES et ux.
    [No. 422,
    September Term, 1974.]

      Decided February 14, 1975.

    The cause was argued before Orth, C. J., and Thompson and Menchine, JJ.

      Melvin G. Bergman, with whom were Borelli, Daniello & Bergman on the brief, for appellant.

      Gary R. Alexander, with whom were Giordano, Alexander, Haas, Mahoney & Bush on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

This is an appeal by Gail Miller Lloyd from a decree of the Circuit Court for Prince George’s County ordering that her infant child, Sandra, born June 19, 1969, be the adopted child of Mr. and Mrs. John G. Schutes, the appellees.

Sandra was born to the appellant and Dale Lloyd, her husband, on June 19, 1969, ten days after they were married and while they were both patients at Spring Grove State Hospital. Both were subsequently released from Spring Grove and Sandra lived with them for approximately one year. In June 1970, as a result of serious financial difficulties and a steadily deteriorating relationship between the parents, Sandra’s paternal grandparents, Arthur and Lillian Lloyd, were asked to take custody of her by the appellant and Dale. In July of 1970 an order was signed giving temporary custody of Sandra to the elder Lloyds. That order also provided that within five months the child should be placed in a foster home. In accordance with that order, the elder Lloyds gave Sandra to a member of the Prince George’s County Foster Care Unit in December of 1970. Instead of being put in foster care, however, the child was given back to the appellant, where she stayed until January 29, 1971 when Dale Lloyd removed her and returned her to the elder Lloyds. Several days later Sandra was placed in foster care. She lived with two foster families until October 1971 when the elder Lloyds again applied for and were granted custody. The appellant did not attend this custody hearing although she admitted having been notified. In December 1972, the elder Lloyds, as a result of failing health, felt they could no longer look after Sandra. The grandparents therefore gave Sandra to the appellees who were anxious to adopt a daughter and who knew the Lloyds through church activities. Sandra has lived with the appellees since that time.

The instant case arose on June 21, 1973, when the appellees filed a “Petition for Adoption and Change of Name” with an alternative prayer for custody of Sandra. The appellant opposed the adoption and requested that custody be returned to her. Dale Lloyd, the natural father, consented to the adoption.

He, Dale Lloyd, testified that on January 29,1971, he went to the appellant’s rooming house and found Sandra in the following condition:

“Sandra then proceeded to follow her into the main hallway dressed in what appeared to be, to me, either a T-shirt or a nightgown made of cotton; it was filthy, this I could see right away. She had the remains of a chicken bone in her hand.”
“I saw Gail, I saw the baby, my comments were, ‘Jesus Christ, what the hell is going on here? ’ And at this time Gail realized exactly what I was going to do. She bent down, she grabbed the baby and picked her up. I then grabbed the baby and pushed Gail away with my hand. When she was free of me and the baby I turned and started towards the door. I looked back and Robert, or Bob, came, was already in the hallway and started towards me. I then ran out the door, down the sidewalk into the cab , and we took off in a great hurry.”
“I found that Sandra was not properly clothed for the evening, you know, for that time; it was one of the coldest days we had that year. And she stunk, she reeked of urine and feces. I later found that the feces was dried in her diaper, in her pamper — it wasn’t a diaper, it was a pamper. And we then left the house on Oglethorpe, rounded the corner by the railroad tracks and we came in by a little liquor store which is known as Dumm’s Corner, where the cab driver had to stop the cab and get out to keep from vomiting. He was unsuccessful, he threw up all over the front of his cab from the smell. I wrapped the baby in my coat and left the window partially cracked. The cab driver got back in the cab and we left for Oxon Hill.”

Arthur Lloyd, Dale’s father, testified as to Sandra’s condition at the time as follows:

“She was filthy. She had a T-shirt, and it was also filthy. She had a diaper on, whether it was a Pamper or diaper I don’t recall, but it was —■ had dried feces in it. We gave the baby a bath and it was one of the worst experiences that I can —
Q. Would you like some water, Mr. Lloyd?
A. Yes, please. I’m sorry.
Q. Well, do the best you can. This is an emotional case for everyone. If you are able to proceed —
A. But she was filthy.”

Arthur Lloyd further testified that from the time the appellant and his son, Dale, separated in the fall of 1970 until December of 1972, the appellant did not come to his house to visit with Sandra. He also testified that he received no cards, gifts or letters for Sandra from the appellant during that time. The appellant did telephone Mr. Lloyd on three occasions regarding visitation rights. Mr. Lloyd consulted Master Hutchinson who told him that no visitation rights had been included in the order granting the Lloyds custody. Mr. Lloyd sent a letter to the appellant explaining the situation which was returned undelivered. Quite some time after eventually informing the appellant that no visitation rights were allowed, her attorney contacted Mr. Lloyd regarding visitation. Mr. Lloyd testified that at no time during any conversation he had with appellant did she ask about Sandra’s welfare. The appellant herself testified that the last card or present she sent to Sandra was in June 1971.

It was shown that at the time of the trial, March 1974, the appellant had been living in a two bedroom apartment with her 2V2 year old son for over a year and that she had been penalized several times for late rental payments. She had begun work with the telephone company in April 1973, but had been off work from November 1973 until the trial because of illness. She was to begin working again in April 1974. Although the appellant intimated that arrangements had been made to provide a babysitter for Sandra and her other child when she returned to work, both the appellant’s grandmother and her prior babysitter testified that they would not be available for such services in the future. The appellant also testified that she planned to get married in the future. Efforts to serve her prospective husband with a subpoena proved futile. Mrs. Geraldine Tindler of the Department of Juvenile Services recommended that custody of Sandra be returned to the appellant but tempered her recommendation by saying that if in the next six months the appellant wras unable to make a home her recommendation would change. It also appears that Mrs. Tindler’s recommendation was made with no knowledge of the appellant’s work record and with the understanding that babysitting arrangements had been made in the event Sandra was returned to the appellant.

There is no question from the transcript of the proceedings below that the appellees are fit to care for Sandra. Mr. Schutes is 41 years old and a Lieutenant Colonel in the Air Force. He and Mrs. Schutes have been married for 19 years and have three sons of their own. They live with their children and Sandra in a large house purchased specifically so that Sandra could have a bedroom of her own. Both of the appellees are in excellent health and are active in local church affairs. Numerous witnesses testified as to the character and stability of the appellees.

There was also substantial testimony regarding the easy and complete adjustment Sandra has made to the Schutes’ household and vice versa. Since coming to live with the appellees, Sandra became virtually a member of the family. She considers the appellees her mother and father and their children as her brothers. She has never mentioned her natural mother and father. She gets along excellently with the three Schutes boys and has numerous playmates in the neighborhood. She considers her name to be Sandra Schutes. She attends a local pre-school class and does well. In short, Sandra has, in the words of one witness, “Blossomed like a rose,” since living with the appellees.

The chancellor also heard evidence relating to the effect returning Sandra to the appellant would have on the child. Rosa Bolen, the director of Sandra’s pre-school class, testified that such a move would be “devastating” to Sandra. Arthur Lloyd testified that in his opinion if Sandra was removed from the appellees’ home “it would ruin her.” Margaret Crawley, a friend and former neighbor of the appellees, said Sandra would have an extremely difficult time readjusting if she were to be removed from the atmosphere and environment of the appellees’ home. Stewart E. Barstad, an Air Force Chaplain and an expert in the field of counseling and planning, testified that there would be great detriment to Sandra in removing her from the appellees’ home and that such an adjustment could leave “some pretty serious marks on a person.” Dr. Robert G. Wilkerson, a psychiatrist specializing in child psychiatry, testified that as a result of his interviews with the appellees and Sandra, he was convinced that Sandra believes the appellees are her “sole and only parents” and that she has no recollection of her past or her natural mother. Dr. Wilkerson further testified that removal from the appellees’ home or a gradual process of reinstituting the natural mother through visitation would be a significant risk to Sandra’s psychological makeup and that it would “set her [Sandra] up so to speak, for various sorts of psychological difficulties in the future.” He also stressed the critical age from the years four to seven. He also foresaw the real possibility of treating Sandra in the near future as a psychiatric patient if she were to be removed from the appellees’ home.

After taking testimony and receiving exhibits which together produced a transcript of over 1,000 pages, the chancellor found that the appellant had withheld her consent to the adoption against the best interests of Sandra. We hold that the chancellor was correct in so doing and we therefore affirm his decision.

Md. Code, Art. 16, § 74. (b) requires the consent of both natural parents to the adoption “if they are alive and have not lost their parental rights through court action or voluntary relinquishment or abandonment.” With respect to consents, § 74 provides, as does Md. Rule D73, that a court may decree an adoption without consent “if, after a hearing the court finds that such consent or consents are withheld contrary to the best interests of the child.” Dale Lloyd, the natural father, consented, so, of course, we restrict our discussion to the lack of consent by the appellant.

In any adoption case the best interests of the child is a primary consideration. Walker v. Gardner, 221 Md. 280, 284, 157 A. 2d 273 (1960); King v. Shandrowski, 218 Md. 38, 43, 145 A. 2d 281 (1958); Schwartz v. Hudgins, 12 Md. App. 419, 424, 278 A. 2d 652 (1971). The test as to what amounts to the best interests of the child depends on the facts in each case. King v. Shandrowski, supra at 42. In Shetler v. Fink, 231 Md. 302, 190 A. 2d 76 (1963), the Court of Appeals reviewed cases decided by it dealing with unjustifiably withheld consent. It said at 308:

“While all the facts and circumstances in a case must be considered, the cases, which reached this Court on the merits of the question whether or not adoption should be granted, seem to indicate that willful abandonment, failure to contribute to support, neglect to see or visit, and unfitness of a natural parent, are some of the important factors to be considered in determining whether consent has been injustifiably withheld; and that station in life and financial and religious considerations are of secondary importance. On the other hand, the natural rights of a natural parent that have not been lost or forfeited by his or her acts or conduct must be carefully weighed and considered in deciding the question.”

Although the rights of the natural parent, or parents, must be closely considered and although without a natural parent’s consent, the case for adoption must be strong, there is no right to “an absolute, arbitrary veto on the part of the parent.” Walker v. Gardner, supra at 284; Lagumis v. Ex Parte Lagumis, 186 Md. 97, 106, 46 A. 2d 189 (1946); Schwartz v. Hudgins, supra at 425.

Our close scrutiny of the testimony and the exhibits lead inexorably to the conclusion that it is in the best interests of Sandra that she be adopted by the appellees. In Atkins v. Gose, 189 Md. 542, 56 A. 2d 697 (1948), a case factually very similar to the case at bar, the Court affirmed a decree granting adoption to foster parents over the objection of the natural mother. After noting the great progress the natural mother had made in improving herself, the Court went on to decide, however, that it was in the best interests of the child to be adopted by the foster parents with whom he had previously been placed. In that regard the Court stated at 550-551:

“In the case at bar it is admitted by all parties that the appellees are ideal foster parents and that the infant has responded to the love and care which he is receiving. The relationship between the child and the prospective adopted parents leaves nothing to be desired. A happy future with the adopted parents seems to be assured.”
“We do not feel that we should remove this infant from the highly satisfactory surroundings in which he now is, deprive him of the love and care which he is now receiving, and an honorable name. To do so would place him in the unstable environment of his mother, to satisfy her commendable and natural maternal affection for the infant whose custody she has had for only about one year since its birth. This would mean another removal of this very young child from ‘pillar to post’. It would hardly be to John’s best interests to do so.”

The Court in reaching its decision in Atkins stressed the fact that the child’s future with the natural mother was uncertain and problematical, while his future with the adoptive parents was certain and optimistic. We think the same rationale used in Atkins applies to the instant case. Here, while the appellant has made some progress in stabilizing her chaotic life, a fact for which she should be justly praised, her future, and thus the future of Sandra, is very uncertain. On the other hand from all the evidence it is clear that Sandra is thriving in the appellees’ home and that with them her future is certain and highly optimistic.

We are also acutely aware of the effects a removal of Sandra from the appellees’ home would have upon the child. To subject Sandra to such psychological and emotional disruptions, to shunt her once again from “pillar to post” can hardly be said to be in her best interests.

The appellant argues that the decree below was premature. The theory of a “premature adoption” was expressed in Lippy v. Breidenstein, 249 Md. 415, 240 A. 2d 251 (1968) and Brendoff v. Titus, 22 Md. App. 412, 323 A. 2d 612 (1974). While we realize the desirability in certain factual situations typified by Lippy and Brendoff of invoking the “premature adoption” doctrine, the case at bar is not one of those situations. In both Lippy and Brendoff the non-consenting natural parent had stabilized their lives to a much greater degree than the appellant in the case at bar. In both Lippy and Brendoff, the non-consenting natural parent had visited with and shown the “niceties of affection” for the child — in Lippy until the child was 3V2 years old, in Brendoff weekly until the hearing. In short in both Lippy and Brendoff the child had some very real recollection of the natural parent. In the case at bar there is no such recollection of the appellant by Sandra. See Schwartz v. Hudgins, supra and compare Watson v. Dockett, 229 Md. 63, 181 A. 2d 461 (1962). The devastating effects of a change in Sandra’s status now, or in the future were discussed at length above. We need only add that further litigation regarding Sandra’s adoption in the future when she is older and able to understand may well be even more devastating. Sandra’s best interests are served by finalizing her status at this time rather than placing her in legal limbo.

The appellant finally contends that the chancellor erred in considering the factors contained in Article 16, § 75 which deals with guardianship and the right to consent to adoption. She argues that in making reference to those factors the chancellor shifted the burden of proof in that § 75 raises a presumption against the natural parent while § 74, under which these proceedings were brought, does not. The appellant’s contention overlooks the pellucid statement made by the chancellor in his oral opinion: We hold that the appellees met their burden of proof on the record before us.

“Now, let’s look at that section — and again for the record I want to make it clear that I realize and understand that this section is speaking only of guardianship, with the right to consent to an adoption, or long term care, short of an adoption, but it is also speaking of that situation without the consent of the natural parent or parents. And I’m really saying that here the burden is still on the Schutes to convince us that this adoption by them would be in the best interest of Sandra, and I’m not saying that this Article 16, Section 75 in any way shifts any burden, or makes any presumption insofar as an adoption is concerned. But I want to discuss the items which are mentioned here as items to be considered in the evaluating the best interests.”

Decree affirmed. Appellant to pay the costs.

      . This transfer was in violation of Md. Code, Art. 88A, § 20 if adoption was intended by the parties at the moment of transfer. We do not pass upon the question because on this record the illegality, if any, would have no effect on the best interests of the child.

      . A divorce action between the appellant and Dale Lloyd was consolidated with the adoption proceeding. A divorce on the grounds of voluntary separation was granted. That decision has not been appealed.

      . A social worker testified, however, the child appeared well cared for when she visited the mother by appointment on January 28,1971. The trial judge did not evaluate this testimony nor that of the Lloyds.

      . Atkins was decided before the enactment of current Art. 16, § 74. However, the Court’s analysis dealt primarily with the best interests of the child.