The common law was grounded on the principal that property cannot be transferred to a deceased person:
“A will transfers property at the testator’s death, not when the will was executed. The common-law rule of lapse is predicated on this principle and on the notion that property cannot be transferred to a deceased individual. Under the rule of lapse, all devises are automatically and by law conditioned on survivorship of the testator. A devise to a devisee who predeceases the testator fails (lapses); the devised property does not pass to the devisee’s estate, to be distributed according to the devisee’s will or pass by intestate succession from the devisee.”
Unif. Probate Code § 2-603 cmt. The Maryland statute reverses the rule at common law. Md. Code Ann., Est. & Trusts § 4-403. Apparently, this is different from most other state statutes which, rather than simply reversing the common law, re-direct the property to specific classes of substantive takers:
“Modern anti-lapse statutes do not reverse the lapse rule. To do so, they would have to provide that a devise to a devisee who fails to survive the testator passes to the deceased devisee’s estate. Instead, they provide that the property that the devisee would have taken had he or she survived the testator passes to specified substitute takers, typically the descendants of the deceased devisee who survives the testator.”
Restatement (Third) of Prop.: Donative Transfers § 5.5 cmt. b. The Maryland statute provides that “[u]nless a contrary intent is expressly indicated in the will” a legacy to a deceased taker will “have the same effect and operation in law to direct the distribution of the property directly from the estate of the person who owned the property to those persons who would have taken the property if the legatee had died, testate or intestate, owning the property.” § 4-403. As with all anti-lapse statutes, the Maryland rule has no application where the legatee was dead at the time the will was made; it only applies if a legatee is living when the will is made but dies thereafter. See Billingsley v. Tongue, 9 Md. 575 (1856). There are numerous Maryland cases interpreting the anti-lapse statute. In Rowe v. Rowe, 124 Md. App. 89, 91 A. 777 (1998), a mother’s will provided for her property go to her two sons “equally, share and share alike.” Id. at 93. One of the sons had predeceased and had left his wife as sole residuary legatee. The trial court applied § 4-403 to direct one-half of the estate to the deceased son’s widow. On appeal, the surviving brother argued that the share and share alike language indicated intent of a per capita distribution which is dependent on survivorship. The surviving brother argued that this language evidenced a contrary intent in the will. The Court of Special Appeals affirmed the lower court’s judgment and held that contrary intent must be clearly expressed, not inferred. Segal v. Himelfarb, 136 Md. App. 539, 766 A.2d 233 (2001), involved the possible double application of the anti-lapse statute. A wife left her entire estate to her husband with no contingent beneficiaries named in the will; her husband left everything to go to the wife if she survived him. The wife outlived the husband but did not revise her will before death. The issue before the court was whether the trial court erred in applying the anti-lapse law in a manner that ultimately directed the estate back to the wife’s heirs. The Court of Special Appeals upheld a distribution to the wife’s heirs. The court applied the anti-lapse statute to send the wife’s property to the deceased husband. As his will directed his property to his surviving wife, and as the wife out-lived her husband, the court found that the husband’s will effectively directed the property back to the wife and thus onto her heirs.
“Although we do not reach this decision easily, we agree with appellees’ interpretation of the anti-lapse statute. The proper interpretation is that the anti-lapse statute is applicable at the time of the legatee’s death, rather than at the time the asset actually comes into the legatee’s estate. This is of primary significance in this case because the point in time when the statute is applicable determines to whom the disposition passes. At the time of Louis Segal’s death, his wife was still alive and, therefore, if appellee’s interpretation is correct, the estate passes back to her according to his will.”
Id. at 541. Considerable litigation in several jurisdictions has focused on whether a contrary intent was indicated in the will. Such disputes can be prevented through careful drafting:
“A foolproof means of expressing a contrary intention is to add to a devise the phrase ‘and not to [the devisee's] descendants.’ In the case of a power of appointment, the phrase ‘and not to the appointee’s descendants’ can be added by the donor of the power in the document creating the power of appointment, if the donor does not want the antilapse statute to apply to an appointment under a power. In addition, adding to the residuary clause a phrase such as ‘including all lapsed or failed devises,’ adding to a nonresiduary devisee a phrase such as ‘if the devisee does not survive me, the devise is to be passed under the residuary clause,’ or adding a separate clause providing that generally ‘if the devisee of any non-residuary devise does not survive me, the devise is to pass under the residuary clause’ makes the residuary clause and ‘alternative devise’.”
Uniform Prob. Code § 2-603(b)(3) cmt. Much litigation had also addressed whether certain terms of survivorship (e.g., “to my son if he survives me”) automatically defeat the anti-lapse statute. Not surprisingly, language explicitly providing that the taker must survive is regularly found to constitute express indication of contrary intent. However, this is not always the case:
“An often litigated question is whether language requiring the devisee to survive the testator, without more, constitutes a sufficient expression of a contrary intent to defeat the anti-lapse statute. The majority view is that such language signifies a contrary intent. Because such a survival provision is often boiler-plate form-book language, the testator may not understand that such language could disinherit the line of descent headed by the deceased devisee. When the testator is older than the devisee and hence does not expect the devisee to die first, or if the devisee was childless when the will was executed, it seems especially unlikely that a provision requiring the devisee to survive the testator was intended to disinherit the devisee’s descendants.”
Restatement (Third) of Prop.: Donative Transfers § 5.5 cmt. h. The Uniform Probate Code § 2-603b(3) states that terms of survivorship (e.g., “if he survives me” or “my surviving children”) are not sufficient indication of intent contrary to the application of the anti-lapse statute in the absence of additional evidence of contrary intent, The rationale for this approach parallels that of the Restatement cited above. Conversely, Maryland case law has found that survivorship language constitutes express indication of contrary intent. Like the majority of statutes governing wills in the Maryland Code, Estates and Trusts Article, the anti-lapse statute does not apply to trusts. See Md. Code Ann., Est. & Trusts § 14-102.