author: Moore, J.,

text:
    ARMAND M. PANNONE, JR., Personal Representative of the Estate of George W. Cousins v. RICHARD D. McLAUGHLIN, Personal Representative of the Estate of Kathleen D. Cousins et al.
    [No. 1335,
    September Term, 1976.]

      Decided September 16, 1977.

      The cause was argued before Morton, Moore and Mason, JJ.

      Ronald C. Brubaker for appellant.

      Leslie J. Clark for appellees.
   Moore, J.,

delivered the opinion of the Court.

We consider here the effect upon jointly held real and personal property of the unlawful slaying of a wife by a husband who, within the hour, committed suicide. Also involved is a question of interpretation of a common disaster clause in the husband’s will.

In a declaratory judgment proceeding brought by the personal representative of the husband’s estate, the trial court (Getty, J.) held that under Maryland law neither a murderer nor those claiming under him may acquire any of the estate of the victim; and that the individually held property of the husband passed to the heirs of the wife under the disputed common disaster provision. We agree with the latter determination. With respect to the jointly held property, however, we conclude that the cotenancies were severed by the killing and that a constructive trust should be imposed upon one-half of the property held by the estate of the killer in favor of the heirs of the victim.

I

On a public street in Cumberland, at 1:12 in the afternoon of October 10, 1975, George W. Cousins, age 34, and a Vietnam veteran, shot and killed his wife, Kathleen D. Cousins, age 32, from whom he had been separated for several months. A short time later, at 1:40 p.m., he himself died of a self-inflicted gunshot wound in the head.

During the marriage, Mr. and Mrs. Cousins acquired two parcels of real estate as tenants by the entireties — the matrimonial residence and a small piece of commercial property. They also jointly owned 181 War Bonds valued at approximately $3,500 and household furnishings. A boat valued at several thousand dollars was titled in the name of the husband who also owned a gun collection. There were two motor vehicles, one titled to the husband and the other to the wife.

We are told that prior to their deaths the parties had made almost identical wills. The will of the husband was admitted to probate but that of the wife was never found. The wife had been married previously and had two children by that marriage. There were also two children by her marriage to Mr. Cousins. The will of Mr. Cousins named his two natural children as residuary legatees if his wife predeceased him but did not name the two stepchildren. The third paragraph of the will, the interpretation of which is at issue here, provided for a conclusive presumption of his wife’s survivorship in the event of their deaths in a common disaster “or within thirty days of each other.”

The trial court construed the will provision as operative with respect to the property owned individually by George Cousins, since husband and wife died within thirty days of each other, and held that such property vested in the estate of Kathleen Cousins and passed to her four children equally, as her heirs at law. The property held in cotenancy was ordered to be distributed in a like manner, the court finding that the heirs of a murderer were precluded from inheriting through him any portion of the estate of the victim.

The personal representative of Mr. Cousins’ estate contends, on this appeal, that the trial court’s order worked a forfeiture of the property of the decedent in violation of Article 27 of the Declaration of Rights, which provides that conviction of a crime shall not result in corruption of blood or forfeiture of estate. It is further the position of the appellant that the second and third paragraphs of the decedent’s will should be read together, so as to nullify the conclusive presumption of the wife’s survival where death did not result from a common disaster, and require distribution of the husband’s individually-owned property to his two children, as provided by the second paragraph of his will.

II

The lower court, after a discussion of applicable law, concluded that in Maryland “a murderer and those claiming through him may not inherit any of the estate of the victim.” We do not so interpret the Maryland cases.

The Maryland decision most nearly akin to the facts with which we are presented is Price v. Hitaffer, 164 Md. 505, 165 A. 470 (1933), where the heirs and personal representatives of the estate of Walter J. Martin appealed from an order excluding them from participating in the distribution of the estate of Della A. Martin, the wife of Walter, the husband having murdered his wife and committed suicide immediately thereafter. Mrs. Martin’s estate consisted entirely of personal property in her own name, and she died intestate. Under the then applicable statutes of descent and distribution, the victim’s husband would have received one-half of her estate, having survived her, the other half to be divided among the other heirs at law. The court rejected the appellant’s claim that the trial court’s order worked a forfeiture of the husband’s property rights under Article 27 of the Declaration of Rights. In the court’s view, no deprivation of property in which the husband had an interest occurred, and, further, a person should not be permitted to enrich his estate by his own wrongdoing:

“There can be no forfeiture without first having beneficial use or possession. One cannot forfeit what he never had. The surviving husband in the case before us, never having acquired any interest in his wife’s estate, there is nothing upon which the constitutional or statutory prohibition can operate. By virtue of his act he is prevented from acquiring property which he would otherwise have acquired, but does not forfeit an estate which he possessed.’’ (Citations omitted.) (Emphasis added.) 164 Md. at 508,165 A. at 471.

The Price case thus stands for the principle that a murderer cannot enrich his estate by his act of wrongdoing, but neither can he be deprived of an interest in property which he possessed at the time he committed his wrongful act. An unconstitutional forfeiture would result in the latter instance.

A similar, though less difficult, issue was presented to the Court of Appeals in Chase v. Jenifer, 219 Md. 564, 150 A. 2d 251 (1958), where an insurer filed an interpleader action to determine the rights of a wife as beneficiary of her husband’s life insurance policy in the light of her conviction of manslaughter in the death of her husband. Analogizing the facts to Price v. Hitaffer, supra, the court held that a beneficiary would be disqualified whether convicted of murder or manslaughter, under the equitable doctrine that a wrongdoer should not profit as a result of his illegal acts. More recently, this Court recognized the principles of the above decisions in Hill v. Lewis, 21 Md. App. 121, 318 A. 2d 850 (1974). This was an appeal from the granting of summary judgment by the trial court on an issue submitted to it by the Orphans’ Court as to whether a husband murdered his wife and should therefore be removed as personal representative of his wife’s estate. The decision in Hill turned upon a procedural issue, but the Court noted preliminarily, citing Chase v. Jenifer, supra, and Price v. Hitaffer, supra, that a murderer, his heirs and representatives of his estate cannot share in the estate of the victim, and that an actual “conviction” of murder was not required for such bar to apply. In a footnote, the Court reiterated that, under Price, the constitutional provision against forfeiture of property upon conviction of a crime does not permit a murderer to claim a share of the victim’s estate as an heir or next of kin, but does protect from forfeiture that property which the wrongdoer already possessed at the time of his illegal act. 21 Md. App. at 124, n.l, 318 A. 2d at 852-853, n.l.

We recognize that the issue of whether the loss of a survivorship interest in property owned as tenants by the entireties constitutes a forfeiture, where one spouse murders the other, has not been confronted in the Maryland decisions referred to above. In Price v. Hitaffer, supra, the husband’s heirs asserted rights in personalty of the murdered wife which would, in the event of the wife’s natural death, have vested in the husband under the Maryland statutes of descent and distribution. It is clear that the court’s decision would have been different if the husband had had a pre-existing ownership interest in his wife’s property. 164 Md. at 508, 165 A. at 471. The import of Price for our purposes is that no additional benefit should accrue to the estate of George Cousins by virtue of his wrongful act, but that his heirs cannot be divested of property in which he had a prior legal interest.

With respect to the property owned by George and Kathleen Cousins as tenants by the entireties, the appellant argues that the interest of George Cousins was not enhanced by his wife’s death, since his title derived from a prior inchoate ownership interest in the whole of the property. Indeed, a tenancy by the entireties in Maryland has all its common law incidents and is based on the concept of the unity of husband and wife. Stieff Co. v. Ullrich, 110 Md. 629, 73 A. 874 (1909); Foland v. Hoffman, 186 Md. 423, 47 A. 2d 62 (1946). Where husband and wife possess real property as tenants by the entireties, each tenant is said to be in possession of the whole, rather than equal portions, during the lives of both. Upon the death of one spouse, title vests in the survivor, not because of any new interest, but because of the original conveyance. Cunningham v. Cunningham, 158 Md. 372, 148 A. 444 (1930).

Despite the theory of ownership of the whole of entireties property, based on the unity of the spouses, we believe it is contrary to reason to suggest that the interest of a surviving husband is equivalent to his interest prior to his wife’s death. While both spouses are alive, either has but an expectancy of sole ownership in the event of the other’s prior death. Such expectancy ripens into unhampered ownership upon the death of one spouse, and substantial benefits accrue to the survivor. As stated by Bogert in Law of Trusts and Trustees § 478 (2d ed. I960):

“The courts . . . have appreciated that the survivor does acquire a substantial benefit by the death of his cotenant, in practical effect. Before such death each was entitled to enjoy the whole, and each had a chance of survivorship and consequent acquisition of the whole as a tenant in severalty. After the dealh the survivor does not have to share current profits with any one, and he has no possibility of loss of his interest impending over him.” (Emphasis added.)

See also Schilbach v. Schilbach, 171 Md. 405, 407, 189 A. 432, 433-434 (1937), where the court stated, “Except for the fact that [a tenancy by the entireties] cannot be defeated, during their lives, without the joint action of both [spouses], the same rules of law apply to it as to any other cotenancy.” In determining the manner in which the entireties property of George and Kathleen Cousins should be distributed, therefore, we must bear in mind that the estate of a murderer would indeed be enhanced were it to receive a sole and unfettered survivorship interest.

Various modes of distribution of entireties property have been employed by courts in other jurisdictions where one tenant has feloniously killed the other and then committed suicide. See Annot., 42 A.L.R.3d 1116, 1140 (1972). We reject outright such cases as Beddingfield v. Estill & Newman, 100 S. W. 108 (Tenn. 1907), which hold that property owned as tenants by the entireties vests solely in the estate of the guilty tenant, where he murders his spouse and thereafter commits suicide. See also Hamer v. Kinnan, 16 Pa. D. & C. 395 (1930); Wenker v. Landon, 88 P. 2d 971 (Ore. 1939). We have already discussed our reasons for finding a benefit to the estate of the survivor by virtue of his wrongful act, and our aversion to such result. See Price v. Hitaffer, supra, and Schilbach v. Schilbach, supra. The case of In re Eckardt’s Estate, 54 N.Y.S.2d 484 (Orange Cty. Surr. Ct. 1945), cited by appellant, is inapposite to the facts at hand, since it involves a surviving spouse who was suffering from somnambulism at the time she killed her husband, and rests on the principle that the survivor should not be penalized where no legal wrong has been committed.

We also decline to follow those cases which hold that the killer is not entitled to receive any portion of the property held as tenants by the entireties by virtue of his wrongful act. See Annot., 42 A.L.R.3d 1116, supra, at 1147. In Van Alstyne v. Tuffy, 169 N.Y.S. 173 (Sup. Ct. 1918), where a husband murdered his wife and then committed suicide, the court enjoined the husband’s heirs from making any claim of property held as tenants by the entireties, recognizing that no person should be permitted to profit from his own wrong or found a claim upon a criminal act. We regard such cases as extreme in position and violative of the provision against forfeiture of property upon conviction of crime in Article 27 of the Declaration of Rights.

The method of distribution which we regard as most equitable and appropriate for the resolution of the conflicting claims in the situation presented here is one which recognizes that the cotenancy was severed by the unlawful killing, and that the property held by George and Kathleen Cousins as tenants by the entireties vested in George when he survived Kathleen, but that his estate is required to hold one-half of the property in constructive trust for Kathleen’s heirs. This has become the rule most frequently applied in the distribution of property held as joint tenants or as tenants by the entireties where one spouse murders the other and then commits suicide. See Annot., 42 A.L.R.3d 1116, supra, at 1141.

One of the most recent and well-reasoned decisions in which this approach was employed is Johansen v. Pelton, 87 Cal. Rptr. 784 (1970), where the administrator of the estate of a husband who had killed his wife and then committed suicide appealed from an order requiring him to hold all joint tenancy property of the spouses as constructive trustee for the administrator of the wife’s estate. Both parties acknowledged the principle of the Restatement of Restitution § 188 (1937) that “[w]here two persons have an interest in property and the interest of one of them is enlarged by his murder of the other, to the extent to which it is enlarged he holds it upon a constructive trust for the estate of the other.” The narrow issue presented for decision was therefore the extent to which the interest of the husband in joint tenant property was enlarged as a result of the murder of his wife. The court refused to follow the procedure outlined in the Comment to Restatement § 188, whereby the estate of the killer would hold the entire interest in the property as constructive trustee for the estate of the innocent spouse, except for a one-half interest in the income for the killer. Instead, the California court chose to treat the joint tenancy as severed by the unlawful killing and to recognize the creation of a constructive trust with respect to one-half of the property held by the husband’s estate in favor of the estate of the slain joint tenant. In Johansen, the court stated the issue and its resolution in the following language:

“In this case the appeal by the slayer’s representative squarely presents the issue of whether the slayer has been unjustly enriched by one-half or by the whole ... of the property to which he received the full legal title as surviving joint tenant. An examination of the precedents . . . leads this court to the conclusion that the most equitable solution is to treat the joint tenancy as severed by the unlawful slaying, and to impress a constructive trust on one-half the property held by the surviving slayer, or, as in this case, where he too is deceased, his estate, in favor of the heirs or devisees, other than the slayer, of the slain joint tenant. ” (Emphasis added. 187 Cal. Rptr. at 788.

See also Ashwood v. Patterson, 49 So. 2d 848 (Fla. 1951); In re Estate of Nunnelley, 343 So. 2d 657 (Fla. App. 1977).

As indicated in the above quotation, Johansen drew upon the resources of a number of earlier cases in which the constructive trust theory was applied. In Barnett v. Couey, 27 S.W.2d 757 (Mo. 1930), where a husband also murdered his wife and then committed suicide, the administrator of the wife’s estate petitioned in equity to have the husband’s administrator declared constructive trustee of one-half of the proceeds of bank deposits formerly owned by the spouses as tenants by the entireties. The court ruled that the requested relief should be granted because of the “unconscionable mode of . . . acquisition” of full legal title by the husband’s survival of his wife. 27 S.W.2d at 760. Theorizing that a severance of the marriage relationship occurred at the time of the murder, the Missouri court drew an analogy to the dissolution of a marriage by divorce, where an undivided one-half interest would vest in each spouse as tenants in common by operation of law. See also National City Bank v. Bledsoe, 144 N.E.2d 710 (Ind. 1957) and Budwit v. Herr, 63 N.W.2d 841 (Mich. 1954).

As an alternative justification for the imposition of a constructive trust as to one-half of the property, the court in Barnett found an implied condition in the common law that death be within the ordinary course of events in order for full ownership rights to become vested in the surviving spouse. 27 S.W.2d at 761. Such condition would not be satisfied where one spouse killed the other. This reasoning was also applied in Bradley v. Fox, 129 N.E.2d 699 (Ill. 1955) with regard to joint tenancy property, where the court found a destruction of the unities of time, title, interest, and possession at the time of the murder, thus preventing full survivorship rights from vesting.

A final leading case on this issue is Grose v. Holland, 211 S.W.2d 464 (Mo. 1948), where the heirs of the murdered wife petitioned for a decree that they were the equitable owners of one-half of the property passing to the husband by survivorship, and for partition of real property. The husband in Grose had not committed suicide, and the issue presented was whether the husband could enjoy the full benefit of the property formerly held as tenants by the entireties. Quoting Bogert, supra, § 478, the court found that the husband had been unjustly enriched by his wrongful act, and “[w]hatever practical benefit the murderer has obtained should be taken from him for the benefit of the innocent successors of the deceased tenant.” 211 S.W.2d at 466. Further discussing Barnett v. Couey, supra, and noting that survivorship vested full title only when the death of the cotenant was within the contemplation of the law, the court ordered that the property descend as if it had been held as tenants in common by husband and wife, one-half going to the heirs of each spouse.

The constructive trust doctrine is, of course, well-recognized in Maryland law, Peninsula Methodist Homes and Hospitals, Inc. v. Cropper, 256 Md. 728, 261 A. 2d 787 (1970), having been most recently applied by this Court in Hartsock v. Strong, 21 Md. App. 110, 318 A. 2d 237 (1974). Constructive trusts have traditionally been divided into three categories: those arising from actual fraud, constructive fraud, and some equitable principle apart from the existence of any fraud. 26 R.C.L. Trusts § 78 (1920); quoted in Springer v. Springer, 144 Md. 465, 125 A. 162 (1924) and Hartsock v. Strong, supra. Normally, a constructive trust must be “established from circumstances surrounding the inception of the transaction,” Mayor of Annapolis v. West Annapolis Fire and Improvement Co., 264 Md. 729, 736-737, 288 A. 2d 151, 155 (1972), and will arise “where a person holding title to a property is subject to an equitable duty to convey it to another person on the ground that he would be unjustly enriched if he were permitted to retain it.” Siemiesz v. Amend, 237 Md. 438, 441-442, 206 A. 2d 723, 726 (1965). See also Clark v. Clark, 139 Md. 38, 114 A. 722 (1921).

We encounter no difficulty in utilizing the constructive trust to satisfy the demands of equity here. The trial court ordered that all property held by George and Kathleen Cousins as tenants by the entireties passed to Kathleen’s estate. Such disposition, in our view, would work a forfeiture upon the rights of a slayer’s children, who should not be precluded from claiming an interest in the property which rightfully belonged to him before his wrongful act. As the court stated in Johansen v. Pelton, supra:

“To deprive the heirs of the slayer of all interest in the property is to embrace a policy which tends to work a forfeiture, attainder, or corruption of the blood, with respect to the property interest which the surviving malefactor had at the instant before the slaying, and which, except for intervention on the theory adopted by the trial court, would have passed to his heirs.” 87 Cal. Rptr. at 789.

At the same time, however, we believe that George’s interest was enhanced by the acquisition of survivorship rights in the property. The imposition of a constructive trust on one-half of the property thereby vested in George’s estate, to be held for the benefit of Kathleen’s heirs, will remove the substantial benefit which would otherwise have been acquired.

When George Cousins killed his wife, he severed the relationship of tenants by the entireties between himself and Kathleen, thereby rendering inoperative the general principle that the survivor succeeds to the whole of the property. See Johansen v. Pelton, supra, and Ashwood v. Patterson, supra. We think it significant to note that, prior to the deaths of husband and wife, they had suffered marital difficulties, and lived separate and apart for a period of about two months before their deaths. It is not inappropriate, to our minds, to view these circumstances as a prelude to divorce, which would also have dissolved the tenancy by the entireties and given rise to a one-half interest in each spouse as tenants in common. See Barnett v. Couey, supra. Finally, we are persuaded of the soundness of this mode of disposition by the reasoning of the decisions in Barnett, supra, and Bradley v. Fox, supra, where the courts recognized an implied condition in the relationship of tenants by the entireties whereby neither tenant cquld succeed to sole ownership through murder of a cotenant.

Ill

It remains for us to consider the manner in which the property of George Cousins, namely, the whole of his individually-owned property and his one-half interest in property previously held in cotenancy with his wife, should be distributed under the terms of his will.

In construing a will, it is elementary that the court must effectuate the intentions of the testator with regard to distribution of his property. The Court of Appeals stated in Judik v. Travers, 184 Md. 215, 221, 40 A. 2d 306, 309 (1944):

“In construing wills the supreme law of every case is the intention of the testator, and when once that is ascertained, it must be given effect, insofar as it is lawful, and all other considerations whatsoever must yield to it. . . .
“Where the language employed by the testator is free from ambiguity, the Court must disregard every consideration except affirmance and enforcement of the intention as thus expressed, unless it contravenes some rule or principle of law. . ..” See also Ross v. Safe Deposit & Trust Co., 168 Md. 65, 176 A. 483 (1935); Hebden v. Keim, 196 Md. 45, 51, 75 A. 2d 126, 129 (1950).

We are asked, on this appeal, to determine whether the trial court properly interpreted the third paragraph of the will of George Cousins to mean that George’s property should vest in the estate of Kathleen, where husband and wife died within thirty days of each other. The appellant urges upon us that this disposition cannot have been what the testator intended, in the light of a contrary intention expressed in the second paragraph of the will. We quote below the controversial provisions of the will in their entirety:

[Paragraph 2]
“After the payment of all my just debts and funeral expenses, the amount of which latter I expressly authorize and empower my personal representative hereinafter named to pay without the Order of any Court, I give, devise and bequeath all my property and estate unto my wife, Kathleen D. Cousins, if she survives me and if she does not survive me, then to my children, George W. Cousins, Jr., and Johnnie C. Cousins, share and share alike, and to the children of any deceased child of mine who shall take their parent’s share of my estate per stirpes and not per capita.”
[Paragraph 3]
“In the event that my wife and I should die in a common disaster or under circumstances which render it impossible to determine who died last or within thirty days of each other, then I direct that it be conclusively presumed that my wife survived me.” (Emphasis added.)

We readily discern, in the second paragraph of the will, an intent on the part of George to provide for his own two children (to the exclusion of his stepchildren) in the event that his wife predeceased him. Somewhat inconsistently, however, the third paragraph creates a conclusive presumption of his wife’s survival in the specified circumstances, thereby causing his property to vest in Kathleen or her estate, rather than in his own children. We refuse to engage in speculation as to the testator’s reasons for wishing to dispose of his property in such manner. Suffice it to say that, at least with respect to the “common disaster” language, the Maryland Uniform Simultaneous Death Act, Md. Code, C.J. § 10-801 (1974) would create a contrary presumption, i.e., that of the testator’s survival, if both spouses perished in a common disaster or under circumstances rendering it impossible to determine who died first. The testator thus appears to have exercised the option given him under § 10-805 of the Act to negate the statutory presumption, and substitute one of his own making.

We must now decide whether the testamentary presumption should be operative where the spouses died “within thirty days of each other,” but not as a result of a common disaster. We hold that it was the intention of the testator that the presumption apply under such circumstances, and his intention must be given effect. Judik v. Travers, supra, Ross v. Safe Deposit & Trust Co., supra. It appears to us that the testator chose to enlarge the customary scope of “common disaster” language. He accomplished this purpose by providing that his property would be distributed in a like manner, whether the spouses died in a common disaster (or where it was impossible to determine who died last), or where the spouses died within thirty days of each other. With respect to the appellant’s claim that the language of the third paragraph is ambiguous, we recognize that the draftsmanship may leave something to be desired; we find, however, no lack of clarity in the expression of the testator’s intent.

We also reject appellant’s argument that the conclusive presumption should not be recognized here because it would cause the husband’s property to pass through two estates. The property held by the spouses as tenants by the entireties must pass through both estates, in any event, because of the constructive trust which we have imposed. We fail to apprehend any reason, grounded in the law or upon principles of public policy, which should cause us to circumvent the expressed intention of the testator.

In arriving at our conclusion that Mr. Cousins intended that his property vest in his wife’s estate under these circumstances, we need not seek support in the decision of the Virginia Supreme Court of Appeals in Shocket v. Silberman, 165 S.E.2d 414 (Va. 1969), upon which appellee relies. The court in Shocket was called upon to determine whether a provision of the husband’s will creating a conclusive presumption that his wife predeceased him should be operative where she died “within ninety days after his death,” but not as a result of a “common disaster.” The testator had juxtaposed the two clauses in a manner similar to that in the Cousins will. Since, however, the testator in Shocket created an opposite presumption — one of his own survival, rather than his wife’s — we would be reluctant to analogize the facts to our own, differing results being likely to flow from each.

We hold, therefore, that since George and Kathleen Cousins died within thirty days of each other, the conclusive presumption of Kathleen’s survivorship set forth in the third paragraph of the will was operative, and controls the disposition of George’s individually-owned property and one-half interest in the property held as a tenant by the entireties with Kathleen.

IV

The result we reach is in consonance with the Order of the trial court, although we have arrived at our conclusion partially by a different route. The court below held in effect that the alternate beneficiaries under the will of George Cousins (his two children) were precluded from asserting survivorship rights with respect to the property held as a tenant by the entireties with Kathleen Cousins, their mother, because of George’s wrongful act in killing Kathleen. Full property rights were held to have vested in Kathleen’s estate, and since she died intestate, the property would descend equally to her four children, only two of whom were the natural children of George.

Our holding is that George’s survivorship rights were not extinguished by his wrongful act, but that George’s personal representative must be deemed a constructive trustee for Kathleen’s heirs to the extent of the one-half interest of their mother which was severed at the time of the killing. Each child will therefore receive a one-fourth interest in the mother’s half of the property previously held as tenants by the entireties.

This interest of each child in the property arising from the mother’s severed one-half interest will be equivalent to one-eighth of the whole. Such one-eighth interest will, however, be supplemented when George’s own one-half interest passes under his will. We have found the conclusive presumption of Kathleen’s survivorship in the third paragraph of the will to be effective. Therefore, George’s interest will pass through Kathleen’s estate once again, and each child will receive an additional one-eighth interest in the entireties property, for a total one-fourth interest in the whole. George’s individually-owned property will similarly pass under his will to Kathleen’s estate, and be divided among her four children.

Order modified and, as modified, affirmed; cause remanded for entry of an order not inconsistent with this opinion; costs to be equally divided between the parties.

      . As will be seen infra, the net distribution to the four children of the victim (two by the marriage to the slayer and two by a previous marriage i may be substantially the same as that which would follow under the ruling of the trial court.

      . For a discussion of the implications of Price v. Hitaffer, see the comment entitled, Felonious Homicide And The Right of Survivorship Under Tenancy By The Entireties, bv Arnold M. Weiner, 17 Md. L. Rev. 45 (1957).

      . We observe that the Uniform Probate Code § 2-803 (bi provides for severance of an estate held jointly or by the entireties where one cotenant intentionally kills the other, “so that the share of the decedent passes as his property and the killer has no rights by survivorship.” That provision has been adopted by the following states: Alaska [Alaska Stat. § 13.11.305(b) (1973)]; Arizona [Ariz. Rev. Stat. § 14-2-803(33) (West 1975)1; Colorado [Colo, Rev. Stat. $ 15-11-803(21 (1973)]; Minnesota [Minn. Stat. Ann. § 524.2-803(b) (West 1975)]; Montana [Mont. Uni. Prob. Code $ 91A-2-803(2) (Allen Smith 1976)]; New Mexico [N.M. Prob. Code § 82A-2-808(B) (Allen Smith 1975)]; North Dakota [N.D. Cent. Code S 30.1-10-03(2) (Allen Smith 1975 Spec. Supp.i], and Utah [Utah Uni. Prob. Code § 75-2-804(2) (Allen Smith 1977)].

      . Although the court stated that such a remedy might similarly apply in the case of property held as tenants by the entireties, insofar as some distinction existed between a joint tenancy and a tenancy by the entireties, the “equal division rule” was most appropriate for the former, since tenants by the entireties could not, except by divorce or death of one spouse, sever or partition the property in equal shares. 87 Cal. Rptr. at 789, n.8.

      . As previously indicated, evidence was presented at the hearing that Kathleen Cousins did execute a will at the same time as her husband, but that it was subsequently lost or destroyed. Whether the terms of Kathleen’s will w'ould have shed light upon the rationale behind the third paragraph of George’s will is, of course, a distinct possibility, but one which we cannot determine.

      . § 10-801 provides as follows:
      “Where title to property or its devolution depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this subtitle.”

      . § 10-805 provides as follows:
      “This subtitle shall not apply in the case of wills, living trusts, deeds, or contracts of insurance where provision has been made for distribution of property different from the provisions of this subtitle.”

      . The controversial clause of the Shocket will provided:
      “In the event my said wife, Jennie Tabaken, shall die with me in a common accident or disaster or under such circumstances as make it impossible or difficult to determine which of us died first or within ninety days after my death, I direct that my wife shall be conclusively deemed not to have survived me and the provision herein made for her shall become a part of the rest and residue of my estate.”

      . The conclusive presumption of the testator’s survival in Shocket would serve the purpose of preventing his property from vesting in the estate of another person who survived him for only a short time, and becoming subject thereby to disposition by the other person. The Shocket presumption appears analogous to Md. Code, Estates & Trusts § 4-401 (19741, which provides as follows:
      “A legatee, other than his spouse, who fails to survive the testator by 80 full days is considered to have predeceased the testator, unless the will of the testator expressly creates a presumption that the legatee is considered to survive the testator or requires that the legatee survives the testator for a stated period in order to take under the will and the legatee survives for the stated period.”


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    GEORGE F. LYNCH, JR. v. HENRY M. BUCHANAN, C.P.A. et al.
    [No. 1341,
    September Term, 1976.]

      Decided September 16, 1977.

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

      Joseph T. Lilly and John B. Cullen for appellant.

      Michael L. Glaser, with whom were Glaser, Fletcher & Johnson, P.C. on the brief, for appellees.

       Note: Certiorari denied. Court of Appeals of Maryland, November 22.1977.

   Menchine, J.,

delivered the opinion of the Court.

In 1971 and prior years, Henry M. Buchanan, trading as Henry M. Buchanan Company, had conducted his business as a licensed certified public account (CPA) in his individual capacity. George F. Lynch, then not licensed as a CPA, was employed as an accountant by Buchanan.

In December 1971, Henry M. Buchanan undertook the organization of a professional corporation for profit pursuant to the provisions of the Maryland Professional Service Corporation Act (Corporations and Associations Article, §§ 5-101 through 5-122). The corporate entity, known as “Henry M. Buchanan, CPA, P.A.” began operations on January 2, 1972, with Henry M. Buchanan as its sole stockholder with 300 shares. George F. Lynch was designated as Director of the corporation in the Articles of Incorporation.

On March 7, 1972, George F. Lynch, who by then had been licensed as a CPA, became a stockholder of the professional service corporation with one hundred shares. Both Buchanan and Lynch became employees of the corporation.

The new corporation passed the first year of its existence in seeming harmony, with Buchanan its president; Lynch its vice president and secretary. In September 1973, this semblance of harmony “melted into air, into thin air.”

Buchanan put it that, “September 20, 1973, George Lynch called me up on the phone at 10 o’clock and said basically, ‘I quit.’ And then at 10:01 said, T am now working for the Financial Committee for Mr. Nixon.’ ”

Lynch put it that, “I had a disagreement with Mr. Buchanan.” He explained that, “When I left the corporation my thought was to completely disassociate myself from the corporation. So I wanted to get rid of my shares of stock.” Lynch’s departure from the corporation was followed on the same day by the departure of employee Joseph Quinn, who, with Lynch and Buchanan, had comprised the three CPA’s employed by the corporation.

The effect of these withdrawals was thus described by Buchanan:

“I was faced with a tremendous workload. We had a 60-day period during which to prepare the report for Judge Waddy. tl It took most of my people. My work was extremely backed up and I was faced with the tax season coming up during which time my office prepared over 200 tax returns. Two men walked out on me.
Q How many hours per day did you work prior to the time Mr. Lynch and Mr. Quinn left your firm?
A I would say before they left I was putting in about 50 hours a week. Then after they left in the range of 60 to 70 hours a week.”

On December 10, 1973, Lynch addressed a letter to Buchanan, reading in appropriate part as follows:

“Hank, as I am no longer actively associated with Henry M. Buchanan, CPA, PA, I am not interested in reaping benefits from the continued success of the organization. I am, however, interested in ‘cashing in’ for my efforts. In order to properly evaluate the worth of the stock, I want to review a current financial statement and I am asking for an accrual financial statement based on what you have told me in the past, namely that, the officers owe to the stockholders an accounting.
“If you or the corporation is interested in purchasing my stock, I will, of course, give you first option. To be fair I will mention that I have already received an offer for my stock from a Certified Public Accountant.
“I hope we can work this out quickly and amicably.”

His hope proving vain and his complaints unresolved, Lynch, on September 6, 1974, filed a “Petition for Involuntary Dissolution” against Henry M. Buchanan, CPA, P.A., in the Circuit Court for Montgomery County, in Equity. Henry M. Buchanan and Micheline E. Buchanan were joined as parties defendant.

After answers and a multiple day trial, the chancellor dismissed the petition. Lynch has appealed.

Corporations and Associations Article, § 3-413 (b) (2) provides as follows: “Any stockholder entitled to vote in the election of directors of a corporation may petition a court of equity to dissolve the corporation on grounds that: ... (2) The acts of the directors or those in control of the corporation are illegal, oppressive, or fraudulent.”

In discussing the meaning and effect of this statutory provision in Turner v. Flynn & Emrich Co., 269 Md. 407, 410, 306 A. 2d 218, 219 (1973), Judge Singley for the Court of Appeals said:

“It is a generally recognized principle that absent extraordinary circumstances, without an enabling statute a court of chancery has no jurisdiction to decree the dissolution of a corporation on application of a shareholder, Wall & Beaver Street Corp. v. Munson Line, 58 F. Supp. 101, 107 (D. Md. 1943) (applying Maryland law); Murray-Baumgartner Surgical Instrument Co. v. Requardt, 180 Md. 245, 252, 23 A. 2d 697 (1942), and that when a statutory remedy is available, the complainant must bring himself within the express terms of the act, Hill v. Vaill, 23 Conn. Sup. 72, 176 A. 2d 881, 883 (1961); Coucounas v. Coucounas, 33 Misc. 2d 559, 225 N.Y.S.2d 410 (1962); Gordon v. Graham, 137 W. Va. 553, 73 S.E.2d 132, 135 (1952); 16A Fletcher, Cyclopedia of the Law of Private Corporations § 8083 at 214-15 (1962 Rev. Vol. I.”

We think this statutory provision was not intended to extend in any material way the long standing rule of law reiterated in Williams v. Ice Co., 176 Md. 13, 26, 3 A. 2d 507, 513 (1939), wherein it was said:

“In a word, if the question involved is one concerning the internal management of corporate affairs, void of acts ultra vires, fraudulent, or illegal, courts of equity will refrain from granting relief to a minority stockholder, or, as stated in McDoughall v. Gardiner, L.R. 1 Ch. Div. 21 (cited with approval in Shaw v. Davis, supra, and Davis v. Wright, supra): ‘Nothing connected with the normal internal disputes between the shareholders is to be made the subject of a bill by some one shareholder in behalf of himself and others, unless there be something illegal, oppressive or fraudulent — unless there is something ultra vires on the part of the company, qua company, or on the part of the majority of the company, so that they are not fit persons to determine it; . . .”

Appellant, in paragraphs 10 and 11 of his petition, made numerous allegations of suggested illegal, oppressive and fraudulent conduct. The chancellor found no evidence supportive of the bulk of those allegations. Our examination of the record persuades us that this conclusion of the chancellor was correct and that it is necessary for us here to discuss only the issues raised by paragraphs 10a, 11a, lib, and llh of the petition that read as follows:

“(10) That since that time, Defendant Henry M. Buchanan, as managing officer and .director of the .Corporation, has acted in an illegal manner in the following particulars:
(a) Defendant Henry M. Buchanan allegedly held stockholders meeting on January 4, 1974, without written notification to other stockholders.
(11) That Defendant Henry M. Buchanan, as managing officer and director of the Corporation, has acted in a fraudulent manner in the following particulars:
(a) Defendant Henry M. Buchanan arbitrarily raised his salary by authorizing and paying himself a bonus in excess of $20,000.00 as of January 31, 1974, which, on information and belief, was for the purpose of lowering Petitioner’s equity in the Corporation to compel Petitioner to sell his stock at an inadequate price.
(b) Defendant Henry M. Buchanan allowed, and is continuing to allow, the loaning of corporate funds to himself and his wife, Micheline E. Buchanan, to pay their personal obligations.
(h) On information and belief, Defendant Henry M. Buchanan invested in the profit sharing plan corporate funds over and above the amount allowed for those then eligible to participate therein with the intent to deprive Petitioner of, and mislead Petitioner to, the value of his stock. Said actions were also done to benefit Defendant Henry M. Buchanan by increasing his share of the profit sharing plan.”

The trial judge filed a written opinion in the cause. We conclude that the chancellor’s findings of fact were based upon substantial evidence and his decision is in accord with law. Accordingly, we adopt the following portion of that opinion:

“Finally, the Court must consider the allegations in the petitioner’s Paragraphs (101 sub-paragraph (a) and (11) sub-pqragraph (a) (b) and (hi as Maryland has taken a different view where directors, officers or shareholders have been guilty of self-dealing. In Indurated Concrete Corporation v. Abbott, 195 Md. 496, the Maryland Court of Appeals held that where directors or shareholders act in such a way to use their positions to advance their own individual interests as distinguished from that of the corporation or acquire interest [s] that may conflict with the clear and proper discharge of their duties that transaction is not ipso facto void but conversely it is not necessary to establish that there has been actual fraud practiced by the party holding the confidential or fiduciary relationship. The proof is upon that director or shareholder once it is shown that he has dealt in a way to perfect his own interest to show the fairness and adequacy of the transaction. In other words, the burden of going forward shifts.
“Later discussing self-dealing in Chesapeake Construction Corp. v. Rodman, 256 Md. 531, the Court of Appeals said that transactions between a corporation and its officers or directors are always closely scrutinized and if shown to be unfair or in bad faith will be nullified. The burden of proving that the transaction is fair and equitable falls upon the corporation or director. In summarizing these allegations the Court holds the evidence shows that Henry M. Buchanan acting as a director and majority stockholder and without any notice to the minority stockholder George F. Lynch, Jr., entered into three transactions by which he may have profited and by the nature of which places the burden on him to show that these transactions were fair and equitable. With regard to the allegation contained in Paragraph (11) (b) that Henry M. Buchanan loaned money from the corporation to himself and his wife. It has been shown that these loans, though made, were fully repaid with seven percent interest and the Court, as the trier of the facts, finds that not only was there no unfairness in the original transactions but they have been repaid and there is no injury to the minority stockholder. With regard to allegations in Paragraph (11) (hi to the effect that approximately Seventeen Thousand Dollars ($17,000.00) was contributed into a profit sharing and pension plan during the year 1973, after George F. Lynch had left the employ of the company and without any notice to Mr. Lynch as a director of the corporation, the Court finds that the transactions were also fair. The contributions were well within the limits allowed by the Internal Revenue Service and were made into a plan to benefit not only the defendant, Henry M. Buchanan, but the other employees of the company and, as testified to by Mr. Buchanan, they were for the purpose of maintaining employee morale. Mr. T. Robert Verkonteren, a C.P.A. called as an expert witness by the defendant testified that the contributions were not excessive and were paid from profits of the company. The Court as the trier of fact holds that there was nothing unfair in these transactions. The third complaint set forth in Paragraph (11) (a) is that in January, 1974, Henry M. Buchanan, defendant, who was at that time drawing a salary of approximately Forty Thousand dollars ($40,000.00) per annum from the corporation declared himself a bonus of some additional Twenty Thousand Dollars ($20,000.00) in advance of actually performing services for the corporation without notice to the minority stockholder (Paragraph (10) (a)). The defendant attempts to justify and show the fairness of this transaction by a computation of anticipated overtime in the future and by showing that the salary expenses of the corporation were not any greater, in fact were less than they had been when the other two accountants, including the plaintiff, were employed. There was also evidence presented that, in fact, Mr. Buchanan was at that time working more hours than were normally required and that he computed his overtime in advance. Declaring this bonus far in advance of performing the services by a director of the corporation for his own benefit was undoubtedly, under the Maryland law, an abuse of discretion and could be subject to Court action. However, the undisputed evidence shows that Mr. Buchanan did not draw this bonus until close to the end of that fiscal year and that the bonus when declared was a book entry only. The Court finds that the defendant had then performed services entitling him to the bonus and under the evidence the bonus was not unfair so as to require the Court to intervene and dissolve a well functioning corporation.”

We point out additionally with respect to the allowance for overtime that Lynch himself acknowledged that from its inception it had been corporation policy to pay time and a half for overtime to all its officers and employees. There was evidence to the effect that Buchanan was required to devote up to 1000 additional hours of overtime labor per year after Lynch withdrew from the corporation.

With respect to the corporation’s contributions to the profit sharing and pension fund, we note that historically, the concept of the professional service corporation was to provide a device whereby practitioners of a licensed profession and their employees might obtain the tax benefits already available to officers and employees of business corporations under Federal Tax Law.

As the chancellor pointed out, the corporate contributions were well within permitted limits. Lynch, as a CPA, certainly knew that a principal purpose of the corporation was to achieve those tax benefits. Any suggestion to the contrary would tax credulity. Lynch’s action “disassociating” himself from the corporation alone prevented him from sharing in them. In such circumstances, continuing reasonable contributions by the corporation to the profit sharing and pension fund in no way constitutes “illegal, oppressive or fraudulent” acts in violation of § 3-413 (b) (2), supra. That which was in fact done by the corporation was that which was intended to be accomplished by its formation.

In sum, we find nothing justifying dissolution of the corporation. Neither do we find any circumstances justifying imposition of lessor constraints upon the individual appellees under appellant’s claim for other relief.

Appellees moved to dismiss the appeal upon the ground that appellant failed to comply with Maryland Rule 1028 b. Appellees included the omitted portions of the record as an appendix to their brief. It does not appear that appellees were prejudiced. We shall deny the motion to dismiss. East. Wash. Ry. v. Brooke, 244 Md. 287, 223 A. 2d 599 (1966).

Motion to dismiss appeal denied, decree affirmed.

Appellant to pay the costs.

      . § 5-112 of the Maryland Professional Service Corporation Act prohibits issuance of capital stock to anyone other than one licensed to perform the service for which the corporation is organized.

      . Lynch ackowledgcd that upon leaving the corporation as an employee he “was doing some work for the Finance Committee to Re-elect the President .... They became a client of mine.” Buchanan had described the Committee as “the largest client of the corporation.”

      . A reference to a judicially ordered report in connection with the operations of the Finance Committee for whom the corporation had performed services.

      . Micheline E. Buchanan, the wife of Henry M. Buchanan, was an Incorporator and Director of the corporation.

      . In Cavitch, Business Organizations, Vol. 4A, Chap. 81, p. 321 (Rev. ed. 19771, it is said:
      “Professional association or professional corporation statutes have been passed in many states simply and solely to enable the self-employed professional person to share in some of the many tax benefits long afforded to employees of non-professional enterprises, particularly in the tax bonanza of qualified pension and profit-sharing plans.”


author: Melvin, J.,

text:
    THE BULLIS SCHOOL et al. v. JOHN J. JUSTUS, JR.
    [No. 1354,
    September Term, 1976.]

      Decided September 16, 1977.

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

      Arthur V. Butler, with whom was William E. Hewitt, Jr. on the brief, for appellants.

      William J. Rowan, III, with whom were Heeney, McAuliffe, Rowan & Abell on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

In July 1973, the appellee, John J. Justus, Jr., sustained an accidental injury to his right leg (knee) arising out of and in the course of his employment with the appellant, The Bullís School. Proceedings before the Workmen’s Compensation Commission resulted in an award for permanent partial disability (“50% loss of use of the right leg (knee)”). Dissatisfied with the award, Justus appealed to the Circuit Court for Montgomery County, where he claimed that the accident resulted in his permanent total disability and not merely a permanent partial disability of his right leg. The case was tried before a jury (Judge John J. Mitchell presiding) on two issues. Issue No. 1 was: “Is John J. Justus, Jr. permanently and totally disabled as a result of the personal injury to his right leg arising in and out of the course of his employment on or about July 25, 1973?” The jury’s answer was “YES”.

In this appeal, the appellants (The Bullís School and its insurer) contend that Judge Mitchell committed reversible error in four respects:

1. “The trial court erred in denying appellants’ motion for a directed verdict and submitting the case to the jury on the issue of permanent total disability.
2. “The trial court committed reversible error in allowing the testimony of a non-treating physician.
3. “The trial court committed reversible error in allowing the testimony of a non-treating lay vocational rehabilitation expert.
4. “The court erred in instructing the jury on permanent total disability”.

Directed Verdict

Appellants contend that the evidence was not legally sufficient to warrant a finding of permanent total disability and that issue should, therefore, not have been submitted to the jury. We disagree.

It is well settled that in workmen’s compensation cases, as in other civil cases, the courts apply the general rule that before a motion for a directed verdict can be granted against a claimant, the court must assume the truth of all the evidence and fairly deducible inferences therefrom tending to sustain the claim. If there is any evidence from which a rational conclusion favorable to the claimant may be drawn, the weight and value of such evidence should be left for the consideration of the jury. Superior Builders v. Brown, Inc., 208 Md. 539, 119 A. 2d 376 (1956); see also Jewel Tea Co. v. Blamble, 227 Md. 1, 174 A. 2d 764 (1961); Richard F. Kline, Inc. v. Grosh, 245 Md. 236, 226 A. 2d 147 (1967); Ackerhalt v. Hanline Bros., Inc., 253 Md. 13, 252 A. 2d 1 (1969).

In Dent v. Cahill, 18 Md. App. 117, 305 A. 2d 233 (1973), Judge Gilbert (now Chief Judge) cited and followed the dicta set out by the Court of Appeals in Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 265 A. 2d 871 (1970), and held it to be a correct statement of the Maryland law on permanent total disability. The dicta referred to is found at pp. 473-474 of Babcock & Wilcox where the Court of Appeals, speaking through Judge Finan, said:

“Professor Larson has an excellent discussion of the meaning of ‘total disability’ in 2 Workmen’s Compensation Law, § 57.51:
“Total disability” in compensation law is not to be interpreted literally as utter and abject helplessness. Evidence that claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require that it be reduced to partial. The task is to phrase a rule delimiting the amount and character of work a man can be able to do without forfeiting his totally disabled status. The rule followed by most modern courts has been well summarized by Justice Matson of the Minnesota Supreme Court in the following language:
“An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.” (Lee v. Minneapolis St. Ry., 230 Minn. 315, 41 N.W.2d 433, 436 (1950).
See also Kline, Inc. v. Grosh, 245 Md. 236, 246, 226 A. 2d 147 (1965), and Petrone v. Moffat Coal Co., 427 Pa. 5, 233 A. 2d 891, 893-894 (1967).”

Applying the above principles to the evidence in this case, we think the motion for directed verdict was properly denied. The record reveals that Justus, age 44, dropped out of school after beginning to repeat the seventh grade. He has “a problem” with reading and writing. Sometime after leaving school, he worked at a gasoline service station for eighteen years, pumping gasoline and making minor mechanical repairs to motor vehicles. He then “went on the Maryland Park Police”, where, according to the testimony of one witness, “he was transferred about quite a bit in an effort to find a job that he could do satisfactorily, and after three years of this he was so embarrassed that he quit”. After that he was “a maintenance man” for a cemetery (“Digging graves, putting markers in, cutting grass”) for approximately two and a half years when he quit because he couldn’t get along with the foreman. About 1971, he was hired by The Bullis School “to drive a school bus in the morning and in the afternoon and in between time he was to do general custodial and maintenance work”. In addition, he performed janitorial duties at night in the school’s classroom building.

The accidental injury, in July 1973, occurred when his right knee was cut by the blade of a rotary lawn mower at the school. The knee was severely damaged, necessitating four operations, and resulting in his having to wear a leg brace most of the time. His knee pains him “continually” and frequently “gives way” on him even while wearing the brace. He is unable to extend his leg and walks with a limp. There is medical evidence that the pain and loss of mobility are permanent and will increase as he gets older. As a result of the accident he has developed osteomyelitis in the knee, a condition described as a “permanent” “infection and drainage from the bone” caused by bacteria having “gotten in the bone itself”. There is further medical evidence that he cannot stand for periods beyond “an hour, an hour and a half at a time”. After that period of time, “[h]e would have to sit down or stop doing what he is doing ... for as much as two, three hours, sometimes longer if he began to get swelling in the area before he could go about doing what he would have to do”.

Justus returned to The Bullis School in April, 1975, but because of his condition was unable to perform any of the duties for which he was originally employed. The school, nevertheless, kept him on its payroll as a “maintenance supervisor” to supervise the work of the two employees who were hired after his accident in July 1973. His wife testified that he was not “able to do the supervisory work .... I do most of the work like climbing the ladder. I go out and cut the grass for him. I try to help him in all his work He works an hour a day and comes in and rests. He can’t keep it up. He’s so weak all the time”. At the time of the accident in 1973, Justus weighed 189 lbs, and was in “A-l health”. At the time of trial he weighed 139 lbs.

Two of the school’s answers to interrogatories, introduced in evidence, lend substance to appellee’s argument that, considering his condition, the job of “maintenance supervisor” was “created” for him by the school under a “special set of circumstances”:

“5. Provide a detailed statement of your contention as to the type of employment Claimant is capable of obtaining and the facts upon which you base your contention.
ANSWER: At the present time, The Bullis School has Mr. Justus working as a supervisor for new employees who have been hired to take over jobs that he was responsible for prior to the accident. The Administration at The Bullis School does not have any high hopes of the Claimant obtaining a job elsewhere due to his lack of schooling, and their belief that he does not know how to read or write to any degree and his lack of technical skills of any sort.
6. State in detail your contention as the type of activities and movements that the Claimant is able to engage in, the type of activities and movements he is not able to engage in, and the facts upon which you base your contention.
ANSWER: The Claimant was originally hired to perform a three-fold capacity for The Bullis School, namely as a janitor in the school buildings at night, as a bus driver and as a general maintenance man. He is not capable of performing any of the above activities at this time in regards to the purposes for which he was hired and that he cannot move to scrub and wax floors, cannot drive a bus or tractor, nor engage in any activity where it would require standing and the use of his injured leg.” (Emphasis supplied).

Daniel Mauchline, a well qualified vocational and educational consultant in full time private practice, testified that in his expert opinion Justus was not “employable in a competitive industrial situation”. When asked the basis for that opinion, he testified as follows:

“Q. What is the basis for your expert opinion that he is not employable in a competitive labor market? A. From a rehabilitative standpoint, you have to adopt a global view and we have a number of problems here not the least of which is physical problems. We have limited intellectual ability. We have illiteracy and extremely poor manipulative ability.
“We were to consider this gentlemen for secondary jobs, jobs which you can perform from an essentially seated position. What we have to do is to think in terms of clerical jobs, secondary fact jobs or related activities. Even the simplest clerical activities, by a combination of illiteracy and poor intellectual function, secondary fact work is ruled out because of the extremely poor manipulative ability which does not require a high degree of skill and is simply a job which has to be performed repetitively, rapidly and accurately. The measurements of the manipulative ability, it would be unreasonable to expect this individual to survive at such an occupation.”

Mauchline further opined that in the Washington Metropolitan area “there is no market whatsoever” “for a person with Mr. Justus’ limitations in the field of general maintenance and supervision work”. He explained:

“Q. (By Mr. Rowan) What is the basis for that opinion? A. A general maintenance supervisor, number one, has to be capable of doing much of the work himself. He can’t rely entirely on the maintenance crew. They have normally a tremendous amount of turnover in these jobs.
“The maintenance foreman will frequently have to go out and make plumbing repairs which would require kneeling, lying down on the floor. He would frequently have to climb ladders to replace light bulbs, repair window sashes. Additionally, in almost every instance, the maintenance supervisor will write out written work orders for the employees to follow when they do the job and return these when the job is done so there is evidence that things were repaired.
“We have here physical limitations which would proscribe the physical demands of the job and we have literacy problems which would obviate the possibility of preparing work orders.”

We conclude that, even though the appellee was employed at the time of trial, the evidence as a whole, viewed in the light most favorable to the appellee, was legally sufficient for the jury to find that the 1973 accident caused him to be “so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist” and that, therefore, he comes within the legal definition of one who has suffered permanent total disability. Babcock & Wilcox v. Steiner; Dent v. Cahill, both supra. See also Mureddu v. Gentile, 233 Md. 216, 196 A. 2d 82 (1964), for the proposition that a scheduled loss of use, under Code (1957, 1964 repl. vol., 1976 cum. supp.), Art. 101, § 36 (3), may support a finding of permanent total disability under § 36 (1) of Art. 101, if the evidence is sufficient to show permanent total disability in fact.

Testimony of Nontreating Physician

Dr. Gerald D. Schuster was called to testify on behalf of the appellee. Dr. Schuster had examined the appellee on two occasions prior to trial. On the ground that he was a nontreating physician, appellants objected to the following question asked on direct examination: “Would you tell us the results of your examination starting with the chief complaints elicited from him?” After the objection was overruled, Dr. Schuster answered:

“The patient was complaining about his right knee. He stated that he had constant pain in the knee. He also noted pain in the right hip. He stated that he walked with a limp, was fearful of putting weight on his knee as it had buckled on him a number of times and had locked on occasion. This occurred mostly when he was sitting down as well as being up on his feet. He stated he wore a knee cage most of the time. He has been unable to work at his regular job since the accident and has been doing some supervisory work.”

Prior to the decision of the Court of Appeals in Beahm v. Shortall, 279 Md. 321, 368 A. 2d 1005 (1977), it was firmly established in this State that the testimony of a nontreating physician relating the “patient’s” statements made to him concerning his symptoms and subjective complaints was inadmissible as a violation of the hearsay rule. See Parker v. State, 189 Md. 244, 249, 55 A. 2d 784 (1947); Candella v. Subsequent Injury Fund, 277 Md. 120, 123-124, 353 A. 2d 263 (1976).

In Beahm, the Court recognized the criticism of this restrictive “rule of Parked’, decided not to adhere to it, and adopted the following more liberal rule:

“We hold that a physician, who examines a patient, not for the purpose of treatment, but in order to qualify as an expert witness, may present his medical conclusions and the information, including the history and subjective symptoms, received from the patient which provide the basis for the conclusions. The conclusions are admissible as substantive evidence. The statements made by the patient as narrated by the physician, are admissible, with a qualifying charge to the jury, only as an explanation of the basis of the physician’s conclusions and not as proof of the truth of those statements.” Id. at 327.

Because Dr. Schuster’s testimony concerning the appellee’s subjective symptoms was in fact admitted without an appropriate explanatory instruction, it was before the jury as substantive evidence, and, therefore, its admission was erroneous. Beahm v. Shortall, supra, 329. The appellee argues, however, that “no reversible error” was committed. We agree. The error was harmless. Evidence that the appellee suffered from the disabilities he related to the doctor was properly before the jury apart from the testimony of the doctor himself. Other witnesses, including the appellee himself, testified about them. It is manifest, therefore, that the doctor’s testimony that was admitted in érror did not significantly affect the interests of the appellants. As said by Judge Orth, who spoke for the Court of Appeals in Beahm, a case involving similar circumstances, “It was not ‘substantially injurious’ so as to have a prejudicial effect on the outcome of the case. In other words, the error was harmless in the circumstances” and “does not warrant reversal [Citations omitted.]”. Id., at 332.

Testimony of Nontreating Vocational Rehabilitation Expert

Appellants next contend that the trial court committed reversible error in allowing the testimony of Mr. Daniel Mauchline, a nontreating vocational rehabilitation expert. Our consideration of this testimony in resolving appellants’ first question (the propriety of denial of appellants’ motion for a directed verdict) evidences our disagreement with appellants’ contention that the evidence was improperly received.

Appellants advance two arguments in support of their contention that Mr. Mauchline’s testimony was improperly admitted. First, citing Jewel Tea Co. v. Blamble, 227 Md. 1, 174 A. 2d 764 (1961), they contend that the case “involves complicated medical questions which fall squarely within the providence [sic] of medical experts”. From this, they deduce that the testimony is inadmissible. Second, appellants contend that Mr. Mauchline’s testimony “should have been excluded under the rule enunciated in Candella v. Subsequent Injury Fund, supra”. We find both arguments unpersuasive.

(1)

In Jewel Tea Co. v. Blamble, supra, the Court of Appeals stated:

“It has been held that reliance on lay testimony alone is not justified when the medical question involved is a complicated one, involving fact finding which properly falls within the province of medical experts, [citations omitted].” Id. at 7 (emphasis supplied).

From this statement appellants conclude that as this case involves complicated medical questions, nonmedical testimony is inadmissible. Such a conclusion is supported neither by the holding in Jewel Tea nor any language contained therein. In Jewel Tea the Court of Appeals held that:

“In the absence of more compelling proof than the opinion of the employee herself and that of her landlady that she is totally disabled within the intendment of the statute, and in the light of medical opinion to the contrary, we must hold that the trial court erred in refusing to grant the appellant’s prayer [requesting the court to instruct the jury that from the uncontradicted evidence it could not find that appellee was one hundred percent disabled].” Id. at 8.

Thus, the holding in Jewel Tea went to the sufficiency of the evidence to support a requested instruction and not to the admissibility of any of that evidence. Although the Court in Jewel Tea held expert testimony “determinative”, id. at 7, it did not hold lay testimony inadmissible. Rather, it considered such lay testimony in reaching its conclusion that the trial court erred in refusing to grant the appellant’s prayer.

Even the language in Jewel Tea relied upon by appellants does not support their argument. While the Court in Jewel Tea stated “that reliance on lay testimony alone is not justified when the medical question involved is a complicated one,”, id.,' at 7 (emphasis supplied), that does not mean that nonmedical testimony is thereby rendered inadmissible. That quoted passage merely indicates that when the medical question involved is a complicated one, lay testimony alone, although properly admissible, is not sufficient to overcome uncontradicted medical testimony to the contrary.

The fallacy of appellants’ argument is demohstrated by the definition of total disability approved by the Court of Appeals, see Babcock & Wilcox, Inc. v. Steiner, supra; Dent v. Cahill, supra:

“ ‘An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.’ (Lee v. Minneapolis St. Ry., 230 Minn. 315, 41 N.W. 2d 433, 436 (1950).” Dent v. Cahill, supra, at 127 (emphasis supplied).

This test contemplates, if not requires, testimony such as that given here by Mr. Mauchline concerning whether or not a reasonably stable market exists for the services an individual is capable of performing after the injury. Appellants’ contention that such testimony is inadmissible was effectively disposed of in the case from which Maryland’s definition of permanent total disability was extracted: Lee v. Minneapolis Street Ry., supra. In Lee the Supreme Court of Minnesota stated:

“If reasonably stable employment is not available for an employe by reason of certain injuries which have crippled him physically or neurologically, evidence of that fact — through the testimony of an experienced employment supervisor — 'is both material and relevant in determining whether the employe’s disability is of such a character that he has no reasonable likelihood, while such disability continues, of being able to obtain and pursue an income-yielding occupation with reasonable continuity as contemplated by M.S.A. § 176.11, subd. 5. See, Baker v. MacGillis Gibbs Co., 222 Minn. 460, 25 N.W.2d 219. The purpose of the testimony is not to establish the nature of the disability or its duration, but to determine, assuming the existence of certain injuries, whether employment is available for a person so handicapped.” 41 N.W. 2d at 436 (emphasis in original).

Other jurisdictions adopting the rule enunciated in Lee v. Minneapolis Street Ry. have held expert testimony as to the availability of a reasonably stable market for the injured party’s services admissible. See e.g., Defense Ordinance Corp. v. England, 52 Ala. App. 565, 295 So. 2d 419 (1974); Ady v. Director, 513 P. 2d 1085 (Col. App. 1973); Fochtman v. Dept. of Labor and Industries, 7 Wash. App. 286, 499 P. 2d 255 (1972); Millender v. City of Carrabelle, 174 So. 2d 740 (Fla. 1965). Finally, in Consolidated Mechanical Contractors, Inc. v. Ball, 263 Md. 328, 338-39, 283 A. 2d 154 (1971), the Court of Appeals held testimony of a rehabilitation expert which reflected the inability of claimant to obtain work admissible.

For these reasons, we hold that the lower court was correct in not excluding Mr. Mauchline’s testimony merely because he was not a medical expert.

(2)

Appellants next contend that Mr. Mauchline’s opinion testimony was based on the inadmissible history he took from appellee, evidence he heard in court, and a report (not in evidence) furnished him by a nontreating physician, and, therefore, it “should have been excluded under the rule enunciated in Candella v. Subsequent Injury Fund, supra, [the Parker rule]”. As previously noted, however, the Court of Appeals in Beahm v. Shortall, supra, declined to follow the rule of Parker and adopted the rule heretofore set forth in this opinion.

Whether the rule of Beahm is applicable to a nontreating vocational rehabilitation expert we need not decide today. Even under the more restrictive rule of Parker, as reiterated in Candella, an expert opinion based on evidence heard in court is not inadmissible. Here, the record reflects that Mr. Mauchline had heard the entire testimony in the case at the time he testified. In Consolidated Mechanical Contractors, Inc. v. Ball, 263 Md. 328, 283 A. 2d 154 (1971), the Court of Appeals, in upholding the admissibility of testimony of a vocational rehabilitation counselor, stated:

“But it is true also that an expert witness who has heard the entire testimony in a case and who assumes the truth of it all, where it is not conflicting, may base his opinion upon facts testified to by other witnesses, or upon facts contained in reports or examinations made by third parties, [citations omitted].” Id. at 335 (emphasis in original).

The only questions propounded to Mr. Mauchline indicating what information he relied on for his opinion are as follows:

“Q. As a result of administering the tests that you administered and of taking the history that you did and hearing the testimony here in the courtroom whieh has preceded you, which I ask you to assume as accurate, do you have an opinion within a reasonable degree of probability in the field of vocational and educational rehabilitation as to whether or not Mr. Justus is permanently and totally disabled from an industrial employment in the competitive labor market?”
“Q. Is your opinion that you have expressed in your testimony based upon your examination and the tests you have administered and the facts you have heard elicited here in the courtroom?”

His answer to both questions was in the affirmative. It is thus apparent from Mr. Mauchline’s testimony that his opinions were based upon the history he took from appellee, certain tests he performed on appellee, and uncontradicted testimony which he heard at trial and assumed to be accurate. Even if appellants were correct in their assertion that Mr. Mauchline relied on the report of a nontreating physician in forming his opinion, we find apposite what was further stated in Consolidated Mechanical Contractors, Inc. v. Ball, supra, at 338-39:

“Tich [the vocational rehabilitation counselor] was not asked to give an opinion in respect of [the appellee’s] medical disability. It is true, of course, that he had access to and perhaps he made use of information from medical reports, as well as other sources. Additionally he was able to consult with Ball and to subject him to certain tests. His opinion may well be the result of a careful screening of all of the available evidence, not merely the evaluation of an assortment .of medical records. His testimony reflects also the inability of Ball to obtain employment. His position in the Division of Vocational Rehabilitation and the length of his service ought to qualify him to testify as he did and we see no reason why he should be obliged to disregard the medical evidence when such evidence, at least to some extent, seems to be relied upon by people in his specialty. Nor are we persuaded that the reports, whether in evidence or not, are unreliable as hearsay evidence. In the main they are uncontradicted.” (Emphasis in original).

Assuming without deciding that it was error to have allowed Mr. Mauchline to testify concerning the “history” he received from the appellee, the error was harmless, for as with the history received by the nontreating physician, Dr. Schuster, the same evidence was properly before the jury apart from Mr. Mauchline’s testimony. Mr. Mauchline testified that the “history” he received “was as detailed a work history as I could get to determine the source of jobs he had done in the past”. The appellee himself had previously testified, without objection, to essentially just that.

For the foregoing reasons, we perceive no reversible error in Judge Mitchell’s rulings concerning Mr. Mauchline’s testimony.

Instructions

Judge Mitchell instructed the jury on the issue of permanent total disability as follows:

“You are instructed that permanent total disability means incapacity to do work of any kind and not merely the incapacity to perform that work which the employee was accustomed and qualified to perform before the injury. However, permanent total disability is not to be interpreted literally as utter and abject helplessness.
Evidence that the claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of permanent total disability. An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist may be classified as permanently and totally disabled.”

Appellants, while agreeing that “the instruction encompasses the definition enunciated in Babcock & Wilcox, Ind. v. Steiner", supra, contend that “it did not apply to the factual situation as presented by the appellee’s own testimony”. For the reasons already discussed in considering the appellants’ first question in this appeal, the contention is without merit.

Judgment affirmed.

Costs to be paid by appellants.

      . The Court of Appeals has stated, however, that it has never treated expert medical testimony any differently than other types of expert testimony. Radman v. Harold, 279 Md. 167, 171, 367 A. 2d 472 (1977).