The estate is neither that of the husband with his wife, nor of the wife with her husband, but of husband and wife as one person. Keeping in mind the nature of this estate, and the former decisions of this court in Marburg v. Cole, 49 Md. 402; McCubbin v. Stanford, 85 Md. 378, 37 A. 214; Brewer v. Bowersox, 92 Md. 567, 48 A. 1060; Jordan v. Reynolds, 105 Md. 288, 66 A. 37; Reed v. Reed, 109 Md. 690, 72 A. 414; Freyv. McGaw, 127 Md. 23, 95 A. 960; Stieff Co. v. Ullrich, 110 Md. 634, 73 A. 874; and Masterman v. Masterman, 129 Md. 167, 98 A. 537, no conveyance of property so held can be made except by the joint act of the husband and wife, and this includes conveyance by way of lease as well as by fee simple deed or mortgage. In this case we have the conveyance made by all of the parties holding as tenants by the entirety, which would constitute a good lease if the lessees were not persons who were also necessarily lessors.
Thus he alone was entitled to all rents and profits arising from the entireties property during the marriage. See Schilbach v. Schilbach, 171 Md. 405, 408, 189 A. 432 (1937); Masterman v. Masterman, 129 Md. 167, 174, 98 A. 537 (1916). In order that the whole could remain for the surviving spouse, however, neither spouse could dispose of the property, lease it, or subject it to any lien or encumbrance absent the consent of the other spouse.
On demurrer the question before us is therefore whether the wife, the appellant, under the allegations of the bill, if proven, is entitled to one-half of the net rents received from the two apartments rented in the property known as 418 East North Avenue, owned by the parties hereto as tenants by the entireties. Chief Judge Boyd in the case of Masterman v. Masterman, 129 Md. 167, 98 A. 537, thoroughly discussed the history of tenancy by the entireties and the changes from the common law affected by the married women's property acts. In that case property was held by the husband and wife as tenants by the entireties.
And under that law, each spouse, husband and wife, is ordinarily entitled each to one-half of the income from such property. Masterman v. Masterman, 129 Md. 167, 98 A. 537. In Saulsbury v. Commissioner, 27 B.T.A. 744, the head-note reads:
It is settled in Maryland that a debtor's interest in an estate by entireties is not subject to sale under execution in satisfaction of his debts. Jordan v. Reynolds, 105 Md. 288, 66 A. 37, 9 L.R.A., N.S., 1026, 121 Am.St.Rep. 578, 12 Ann.Cas. 51; Masterman v. Masterman, 129 Md. 167, 98 A. 537; Annapolis Banking Trust Co. v. Smith, 164 Md. 8, 164 A. 157; McCubbin v. Stanford, 85 Md. 378, 37 A. 214, 60 Am. St.Rep. 329. The learned judge below was of opinion, however, that because the parties were not lawfully married at the time of the conveyance to them, an estate by the entireties was not created and that the effect of the conveyance was to vest in them an estate in joint tenancy or a tenancy in common, which was not converted by the subsequent valid marriage into an estate by the entireties. It is well settled, of course, that the marriage of persons holding an estate as joint tenants or tenants in common does not convert such an estate into one by the entireties.
The estate held by the deceased and his wife in Westburn being a tenancy by the entireties, the nature of the interest of the parties in the property in which the cash proceeds of the sale were invested was likewise as tenants by the entireties. Brell v. Brell, 143 Md. 443, 122 A. 635; Whitelock v. Whitelock, 156 Md. 115, 143 A. 712; Masterman v. Masterman, 129 Md. 167, 98 A. 537; Brewer v. Bowersox, 92 Md. 567, 48 A. 1060. There is nothing in the record to show why there was a change in the form of the title of the Baltimore City stock purchased with the proceeds of the sale of the United States bonds, but for the purposes of deciding the question here under consideration this change in the title is immaterial.
Dr. Goldberg could not have made any disposition of any part of them without her consent, and could not even have obtained a division of the stocks in partition proceedings, as an ordinary joint tenant could have done. Marburg v. Cole, 49 Md. 402; Brewer v. Bowersox, 92 Md. 567, 48 A. 1060; Masterman v. Masterman, 129 Md. 167, 98 A. 537; Elko v. Elko, 187 Md. 161, 49 A.2d 441, 168 A.L.R. 256; Settle v. Settle, 56 App. D.C. 50, 8 F.2d 911, 43 A.L.R. 1079; 26 Am.Jur., Husband and Wife, sec. 81. I find that Mrs. Goldberg owned an interest in those stocks, per tout et non per my; that she had put up at least one-half of the consideration for all of them except the Gunther certificate; and that her consent to the division and to Dr. Goldberg's receiving one-half of the shares constituted an adequate and full consideration in money's worth for the transfer to her of the other half of the shares. The shares which she received in the division, therefore, should not be included in Dr. Goldberg's gross estate for federal estate tax purposes.
It is indisputably true that under the Maryland law the nature of the title to "Westburn" was a tenancy by the entireties and it seems clear from the Maryland decisions that the nature of the interest of the parties in the cash proceeds of the sale of the property and also in the reinvestment thereof in the form of negotiable Victory notes was likewise as tenants by the entireties. Brell v. Brell, 143 Md. 443, 122 A. 635; Whitelock v. Whitelock, 156 Md. 115, 143 A. 712; Masterman v. Masterman, 129 Md. 167, 98 A. 537; Brewer v. Bowersox, 92 Md. 567, 48 A. 1060. It is quite possible that the change in the form of the title holding evidenced by the registration of the Baltimore City stock was an inadvertence on the part of some representative of the Safe Deposit Trust Company, as agent.
For example, whereas a court of equity has no jurisdiction, merely at a husband's request, to direct the sale of his property, free from the wife's inchoate dower, such an interest, though capable of release, not being susceptible of sale or transfer or of being divested except with the wife's consent, nevertheless, a decree may, in the discretion of the court, sometimes be passed for the sale of property owned by the husband and wife as tenants by the entirety, even though one of them may oppose the sale. Roth v. Roth, 144 Md. 553, 125 A. 400; Masterman v. Masterman, 129 Md. 167, 98 A. 537. But fundamentally, in so far as the estate tax is applicable, are the two estates distinguishable on principle?
In addition, while the estate exists, the spouses share equally in the income from property held as tenants by the entireties. Whitelock v. Whitelock, 156 Md. 115, 143 A. 712 (1928); Masterman v. Masterman, 129 Md. 167, 98 A. 537 (1916). In re Ford, 3 B.R. at 565-66.