Albert GREEN v. Donald NELSON, et al.
No. 0950, Sept. Term, 2015.
Court of Special Appeals of Maryland.
April 28, 2016.
135 A.3d 914
exception been filed, the sale could have been ratified and settlement completed within a month or two of the sale. No evidence was presented that the $490,005 bid for the property was an unfair price, much less a price so unfair as to warrant setting aside the sale and requiring the expenditure of additional funds to re-advertise and conduct another sale, without any indication that a higher price would be obtained.
We cannot fault the trial judge for refusing to assume, in the absence of evidence, that the extra 2.8 percent annual interest for that limited period had any effect whatever on the price obtained for the property. Balanced against that speculation is the fact that, had a lower rate been prescribed by the trustee without inducing a higher price, less would have been received for the property. See Busey v. Perkins, 168 Md. 453, 457, 178 A. 254, 256 (1935) (“where the objection is based on inadequacy of price, courts are reluctant to order a resale unless there is some assurance that a better price would result.“) For these reasons, we shall affirm the judgment of the Circuit Court.
JUDGMENT AFFIRMED; APPELLANTS TO PAY THE COSTS.
Michael A. Llewellyn (Geppert, McMullen, Paye & Getty, on the brief) Cumberland, MD, for Appellant.
Stephen C. Wilkinson, Cumberland, MD, for Appellee.
Panel: KRAUSER, C.J., BERGER, and ROBERT A. ZARNOCH (Retired, Specially Assigned), JJ.
ZARNOCH, J.
Almost two months later, Green petitioned the orphans’ court for judicial probate, asserting that the second will was Kenneth‘s last will and testament. That
While the circuit court‘s finding of fraud was on appeal in this Court, Green filed a petition to caveat the 2003 will on September 3, 2013—almost three and a half years after the appointment of Malamis and Nelson under the earlier will. The orphans’ court denied the petition as untimely. Green appealed, and the Circuit Court for Allegany County upheld the decision of the orphans’ court. Green filed an appeal to this Court on July 13, 2015, and presents the following question for our review:
“Whether the Circuit Court incorrectly determined, as a matter of law, that the Petition to Caveat was untimely filed.”
Because the plain language of
BACKGROUND
In 2003, the decedent, Kenneth Green, executed a will (the “2003 Will“) in which he made his friend, Betty McClintock, the prime beneficiary. Their friendship continued, and in 2006, when Kenneth was diagnosed with cancer, McClintock took him to his chemotherapy treatments. After a relapse in 2009, Kenneth was in a great deal of pain and was prescribed opiate medication. While ill, his brother, Albert Green, took him from Maryland to Kentucky and held him there incommunicado. In Kentucky, Kenneth executed a second will (thе “2009 Will“) revoking the earlier will and giving all of his assets to his brother, even though he had an acrimonious relationship with the Green family and had previously instructed Malamis and Nelson, that he wanted McClintock to inherit all of his assets and that he wanted to leave nothing to his brother and his family. On September 3, 2009, Albert Green filed the 2009 Will with the Register of Wills for Allegany County for safekeeping. Kenneth died at his brother‘s home in Kentucky on January 19, 2010.
On April 5, 2010, Malamis and Nelson filed a petition to open Kenneth‘s estate, seeking to probate the 2003 Will, and, that day, the orphans’ court issued an administrative probate order appointing Nelson and Malamis as personal representаtives, and admitted the 2003 Will to probate. Green was listed as an heir and received notice of the probate proceeding via mail, which advised that “All persons having any objection to the appointment (or to the probate of the decedent‘s will) shall file their objections with the Register of Wills on or before the 5th day of October, 2010.” Rather than filing a petition to caveat the 2003 Will, on May 21, 2010, Green petitioned the orphans’ court for judicial probate asserting that the 2009 Will was Kenneth‘s last will and testament.1 The orphans’ court apparently
On September 9, 2010, McClintock filed a petition to caveat the 2009 Will, alleging that the will was procured as a result of fraud, undue influence, or duress imposed by Green or Green‘s family members, and asserted that the 2003 Will was, in fact, Kenneth‘s last will and testament. McClintock, a friend, was not an heir at law, and was only able to file her caveat as a legatee under the 2003 Will. Accordingly, the petition requested that the court “pass an Order admitting to probate the Will of March 5, 2003, as being the valid Last Will and Testament” of the decedent. Andrew, acting for the Estate, petitioned to transfer the caveat proceeding to the circuit court in accordаnce with
After a five-day hearing, the Circuit Court for Allegany County found the 2009 Will to have been procured by fraud and undue influence, as a result of Kenneth‘s poor health, prescription drug use, and Albert‘s behavior, which included, among other things, misuse of Kenneth‘s funds and sequestering Kenneth from his friends in Maryland. We affirmed the circuit court‘s findings in a reported opinion, Green v. McClintock, 218 Md.App. 336, 97 A.3d 198, cert. denied, 440 Md. 462, 103 A.3d 594 (2014). The 2003 Will then became the decedent‘s last will and testament, pursuant to an order issued by the orphans’ court on July 16, 2013. The orphans’ court also appointed Malamis and Nelson as special administrators of the estate.4
Almost three and a half years after the initial appointment of Malamis and Nelson under the 2003 Will and three years after the deadline to caveat, Albert Green filed a petition to caveat the 2003 Will, asserting that the will “was not executed by the decedent or the execution of the 2003 Will was procured by fraud, duress and/or undue influence.” He request-ed that the court declare the estate intestate, presumably because he would be entitled to the proсeeds of the estate as Kenneth‘s only living heir.
The orphans’ court denied the petition on September 17, 2013. Unaware of the orphans’ court decision, on September 19, 2013, Nelson opposed the caveat as untimely filed under
DISCUSSION
Green argues that, when viewed properly, his caveat was timely filed under
We review a court‘s interpretation of statutory provisions de novo. Maryland-Nat‘l Capital Park & Planning Comm‘n v. Anderson, 395 Md. 172, 181, 909 A.2d 694 (2006). To reach an appropriate construction, we examine the plain language of the statutory text, the statutory purpose, and the consequences of different statutory interpretations. Town of Oxford v. Koste, 204 Md.App. 578, 585, 42 A.3d 637 (2012), aff‘d, 431 Md. 14, 63 A.3d 582 (2013). “Text is the plain language of the relevant provision, typically given its ordinary meaning, viewed in context, considered in light of the whole statute, and generally evaluated for ambiguity.” Id. (Citations omitted). The purpose of the statute, gleaned either from the text or from external sources, informs our reading of the statute. Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 512-15, 525 A.2d 628 (1987). Finally, “[a]n examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable reading, grounds the court‘s interpretation in reality.” Koste, 204 Md.App. at 586, 42 A.3d 637 (Citations omitted).
The purpose of probate and Maryland testamentary law is “to simplify the administration of estates, to reduce the expenses of administration, to clarify the law governing estates of decedents, and to eliminate any provisions of prior law which are archaic, often meaningless under modern procedure and no longer useful.”
Bеcause of the arcane nature of trusts and estate law, we begin with a brief overview of the probate process. A probate proceeding provides a vehicle for identifying and collecting the decedent‘s property, paying the debts of the decedent and the estate in an orderly way, and distributing the remainder of the estate to those entitled to share in the estate either under the decedent‘s will or according to intestate distribution. In re Estate of Trigg, 368 S.W.3d 483, 496 (Tenn.2012) (Citation omitted). To “probate a will” means “to prove before the proper judicial officer all the documents comprising the last will and testament of the decedent.” Schlossberg v. Schlossberg, 275 Md. 600, 625, 343 A.2d 234 (1975).
An interested person7 may initiate administrative probate by filing a petition with the register of wills,
The case before us presents the issue of the proper time to file a caveat of a will.
Regardless of whether a petition for probate has been filed, a verified petition to caveat a will may be filed at any time prior to the expiration of six months following the first appointment of a personal representative under a will, even if there be a subsequent judicial probate or appointment of a personal representative. If a different will is offered subsequently for probate, a petition to caveat the later offered will may be filed at a time within the later to occur of:
- Three months after the later probate; or
- Six months after the first appointment of a personal representative of a probated will.
Under
Green attempts to side-step the plain language of the statute by arguing that 1) the register made a mistake of fact in the administrative probate of the 2003 Will; 2) the judicial probate of the 2009 Will operated to void the appointment of personal representatives under the 2003 Will and, 3) the 2003 Will was actually a “later offered will” because it was not “effectively” probated until after the will that he offеred, the 2009 Will, was determined to be fraudulent procured. We address each contention in turn.
According to Green, because he filed the 2009 Will for the register‘s safekeeping, the existence of the 2009 Will should have automatically triggered a judicial probate when the 2003 Will was offered.
Green also argues that the Court of Appeals in Schlossberg v. Schlossberg, 275 Md. 600, 343 A.2d 234 (1975), held that when letters of administration should not to have been granted in the first place, an appointment as personal representative is void ab initio, the proceedings should be disregarded entirely by the orphans’ court and new administration should be granted as if the prior one had never taken place. However, in Schlossberg, the appellant‘s concealment of a codicil was a “fraud” that “caused the Register to ‘render an erroneous judgment’ when the appellant made oath that there was no other ‘will.‘” Schlossberg, 275 Md. at 626, 343 A.2d 234. The Court determined that since the appointment of the personal representative had been “obtained by fraudu-lent means, not only must the means be condemned, but the result produced by them must be annulled.” Id. (Citations omitted).
In contrast, the present circumstances are more similar to those found in Hayman v. Messick, 252 Md. 384, 391-92, 249 A.2d 695 (1969), where the mistaken appointment of a personal representative not induced by fraud or deceit did not invalidate the prior actions taken by the personal representative. Here, Malamis and Nelson did not perpetrate a fraud upon the register. Instead, with representatives and the register apparently unaware of the 2009 Will, the register appointed Malamis and Nelson as personal representatives under the 2003 Will. Thus, because the personal representatives did not receive their appointments through fraud, the actions taken by the register were not nullified or void ab initio. Cf. Messick, 252 Md. at 391-92, 249 A.2d 695. For these reasons, we reject Green‘s contention that the act of revoking or modifying an action taken by the register during administrative probate, such as the appointment of a personal representative in this case, resets the time for a person to file a caveat of a will.
Second, Green argues that the order of the orphans’ court, dated June 25, 2010, operated to void the appointment of personal representatives under the 2003 Will. Green maintains that, because the appointment of the personal representatives was revoked by the orphans’ court, the six-month period to caveat the 2003 Will was also rendered void.10 We find no support for this proposition in the statute or in case law.
Section 5-207 specifically contemplatеs the existence of a later judicial probate and of a change in the personal representatives. Even if those circumstances occur, they do not extend the time for filing a caveat to a will beyond six months after a personal representative is appointed under that will. The provision cannot be more clear: “[E]ven if there [is] a subsequent judicial probate or appointment of a personal representative[,]” a petition to caveat a will must “be filed at any time prior to the expiration of six months following the first appointment of a personal representative under a will[.]”
Construing the abоve language in conjunction with the powers of the orphans’ court in a judicial probate proceeding,
Third, Green argues that the 2003 Will was, in the context of
If another will or codicil is subsequently offered for probate, a petition to caveat that will or codicil shall be filed within three months after that will or codicil is admitted to рrobate or within six months after the first appointment of a personal representative under the first probated will, whichever is later.
Finally, Green argues that the “purpose of the Estates and Trusts Article, public policy and sound logic demand an exception to the statutory deadline be made in this case.” We hold that, on the contrary, the purpose of the Estates and Trusts Article is well served by the construction of
One of the purposes of Maryland testamentary law is to promote the prompt probate of wills and the speedy administration and settlement of estates. Carney v. Kosko, 229 Md. at 118, 182 A.2d 28 (citing Watkins, 203 Md. at 523, 102 A.2d 295). “[T]he whole purpose of our testamentary laws is to ‘guard against all needless delay, and to secure as prompt and speedy settlements of the estates of deceased persons as practicable.‘” Silverwood v. Farnan, 180 Md. 15, 21, 22 A.2d 444 (1941).
Indeed,
[g]reat injustice was possible to be done to devisees and legatees, as well as to testators themselves, by permitting caveats to be filed at any time, however long, after the probate of wills. Designing parties could wait until the death of those familiar with the circumstances under which a will was executed, before proceeding against it, аnd other dangers suggest themselves under the former practice in this state. The legislature has therefore wisely undertaken to limit the time within which wills can be attacked.
Garrison v. Hill, 81 Md. 551, 555-56, 32 A. 191 (1895). Other jurisdictions have recognized that all testamentary documents should, if possible, be adjudicated in the same proceeding, and that separate trials on subsequent or prior wills should be discouraged because they only serve to increase the time and expense of the caveat. See, e.g., In re Estate of Black, 153 Wash.2d 152, 172-73, 102 P.3d 796 (2004) (en banc); Estate of Hamilton v. Morris, 67 S.W.3d 786, 798 (Tenn.Ct.App.2001); Matter of Dunn, 129 N.C.App. 321, 326, 500 S.E.2d 99 (1998); In re Irvin‘s Estate, 19 Misc.2d 41, 43-44, 186 N.Y.S.2d 500 (N.Y.Sur.1958).
This case embodies the very concern that the legislature addressed by “limit[ing] the time within which wills can be attacked.” Garrison, 81 Md. at 556, 32 A. 191. Six years have now passed since the initial appointment of the personal representatives under the 2003 Will. Had Green caveated that will while McClintock was contesting the 2009 Will, this controversy would have been promptly resolved. Instead, Green waited until it was clear that he would not benefit under the 2009 Will
Green acknowledges that
Green argues, however, that because in two prior instances, Sole v. Darby, 52 Md.App. 218, 447 A.2d 506 (1982), and Markert v. Beatley, 84 Md.App. 594, 581 A.2d 445 (1990), this Court eased the requirements for filing a petition to caveat, we should do the same in this case. However, each case is distinguishable, and neither provide sufficient justification for us to depart from the plain language of
In Darby, personal representatives sent notice of the probate to the decedent‘s daughter who lived in North Carolina, and told her that she had six months to file a petition to caveat the will. 52 Md.App. at 220, 447 A.2d 506. However, the date listed on the notice was actually three days after the six-month period expired. Id. The Darby Cоurt held that under those circumstances, where the personal representatives gave the caveator an incorrect notice document upon which she relied to her detriment, rigid adherence to the terms of
Markert involved the attempted caveat of a will by the decedent‘s only lawful heir, who was living in Germany. 84 Md.App. at 601, 581 A.2d 445. The proponent of the will was aware that the would-be heir did not receive probate notice in time to permit a response, and the proponent was also aware of the heir‘s filing of an unverified caveat before the dead-line. Id. Furthermore, there was no evidence that the proponent undertook any action to determine that actual notice had been received by the heir, as required by
In contrast with the circumstances in Darby and Markert, Green had ample notice
Green maintains that requiring a party to caveat a will within six months of the appointment of a personal rеpresentative under that will would lead to an illogical result that would subject parties to onerous legal proceedings because they would be required to “file caveats against every other will filed with the Register of Wills and the Orphan‘s Court in anticipation of a later caveat that may never proceed.” Green presents a counterfactual example: “if a decedent left ten wills, each revoking the prior and the tenth will in the succession is caveated, an interested person to the tenth will [would] be required to file nine caveats within six months of the appointment of the first personal representative.” Howevеr, Green‘s scenario reflects neither the text of the statute, nor the practice of estates and trusts attorneys.
The six-month statute of limitations enounced in
In sum, Green was on notice that the 2003 Will was the basis for McClintock‘s authority to caveat the 2009 Will. He had received notice—sent by the Estate on May 12, 2010—of the appointment of the personal representatives under the 2003 Will and of the deadline for filing a caveat to that will. Because personal representatives were appointed under the 2003 Will, the 2009 Will can only be considered a lаter offered will under the plain language of
JUDGMENT OF THE CIRCUIT COURT FOR ALLEGANY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
- A person named as executor in a will;
- A person serving as personal representative after judicial or administrative probate;
- A legatee in being, not fully paid, whether his interest is vested or contingent;
- An heir even if the decedent dies testate, except that an heir of a testate decedent ceases to be an “interested person” when the register has given notice pursuant to § 2-210 or § 5-403(a) of this article....