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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 441 September Term, 1996 _______________________________

MARIN SOLIS, JR., PERSONAL REPRESENTATIVE OF THE ESTATE OF CATHERINE SCHUENEMAN v.

JOHN E. SCHUENEMAN

_______________________________ Hollander, Sonner, Wilner, Alan M. (specially assigned), JJ. _______________________________ Opinion by Wilner, J. _______________________________ Filed: December 5, 1996

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The issue before us is one of first impression in Maryland: whether a person occuping the dual role as (1) surviving spouse who has elected to renounce the decedent's will and take his statutory share of the estate, and (2) personal representative of the estate, is responsible to the estate for the fair rental value of estate As

property that he occupies during the period of administration.

is the case with so many issues of law, the answer is: it depends on the circumstances. BACKGROUND The underlying facts are essentially undisputed. In 1964, Mr.

Catherine and James Schueneman were divorced in Illinois.

Schueneman and their son, John Schueneman, apparently remained in Illinois. Catherine moved to Maryland and, in 1969, purchased a At some point, appellant, Marin Solis, Jr.,

home in Camp Springs.

moved into the home and lived with her as her common law husband until her death in August, 1989. originally signed in September, Ms. Schueneman left a will 1981, but which she had

subsequently amended by interlineation. In the original version of the will, Mr. Solis was appointed as personal representative, and, although it is not entirely clear because of the way in which Ms. Schueneman obliterated some of the typed language, he may also have been the devisee of the Camp Springs home as well as the residuary legatee. version, however, Ms. Schueneman left both Under the revised the Camp Springs

property and the residuary estate to her son, John. received nothing under the revised will.

Mr. Solis

In September, 1989, Mr. Solis filed a petition to probate Ms. Schueneman's will, claiming standing as the personal representative

nominated in the will.

In November, the Orphans' Court for Prince

George's County ordered judicial probate of the will and appointed Mr. Solis as personal representative. In his list of persons

interested in the estate, Mr. Solis included himself both as personal representative and as Ms. Schueneman's common law husband. On May 17, 1990, as the surviving spouse, he filed an election under Md. Code Est. & Trusts art.,

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Maryland Law