Bell v. Forti

³⁴⁷ MOYLAN, Judge. This is an appeal from a summary judgment in the Circuit Court for Montgomery County sitting as the Orphan’s Court denying appellant, Stephanie Bell, any portion of the estate of Joseph S. Forti (Decedent). Appellant contends that the court erred in granting the summary judgment motion of the personal representatives, Lucia Forti (Lucia) and Joseph Montedonico (Montedonico), by finding that Joseph Forti’s will clearly excluded her. She also contends that she was entitled to a portion of the estate as a pretermitted heir.

Stephanie Bell was born on May 20, 1971, the child of Margaret Elizabeth Bell and the decedent. Joseph Forti was at that time married to Lucia, with whom he had two children, Kenneth and Denise. Margaret Bell and the decedent never married; he remained married to Lucia Forti until his death. After appellant’s birth the decedent openly acknowledged her to be his child, both in writing and orally.

The Fortis jointly consulted with Montedonico and Francis Canale of Montedonico & Mason, Chartered regarding the preparation and execution of their wills. Both wills contained virtually identical language. On October 28, 1987, the decedent executed his Last Will and Testament, appointing Lucia and Montedonico as personal representatives. He never informed either attorney of Stephanie Bell’s existence.

The decedent died on May 1, 1990, and the will was admitted for probate on May 12. Margaret Bell filed a claim against the estate on behalf of Stephanie, then a minor, on November 4, 1988. She claimed that Stephanie was the decedent’s natural child and could rightfully inherit a portion of the estate under his will. The pertinent provisions are as follows: PREAMBLE I, JOSEPH S. FORTI, domiciled in Montgomery County, Maryland, make, publish and declare this to be my ³⁴⁸ Last Will and Testament and I revoke all my prior wills and codicils.

I am married to LUCIA M. FORTI, who is referred to in this Will as “my wife”. We presently have two children, KENNETH J. FORTI and DENISE A. FORTI who together with any other children of mine born or adopted after the execution of this Will, are referred to in this Will as “my children”. ARTICLE FOURTH Disposition of Residuary Estate I give to I my Trustees, in trust, the remainder of my estate, including all property over which I may have any power of appointment. This trust shall be known as the “Residuary Trust” and shall be held, administered and distributed as follows: 2.

Division of Trust into shares. On the death of my wife, or on my death if my wife does not survive me, whichever last occurs, my Trustees shall divide the trust estate as then constituted into separate shares, equal in value, one share for each of my children then living, and one share of each of my children then deceased with descendants then living. ARTICLE NINTH C. Definitions. 2. Child, Children.

Reference to “child” and “children” mean lawful descendants in the first degree, whether by blood or adoption (and whether born or adopted before or after the execution of this instrument), of the parent designated, (emphasis added). On May 1, 1988, the personal representatives filed a first accounting, requesting that the estate be distributed to a residuary trust “f/b/o Lucia Forti, for life with remainder ³⁴⁹ equally to Denise and Kenneth Forti.” Appellant filed exceptions to the accounting. The appellees then filed a motion for summary judgment, and a hearing was held on November 8, 1989. After granting the motion for summary judgment, the court instructed both parties to submit memoranda of law addressing whether appellant was a pretermitted heir: “All right, the Court has had an opportunity to go over all the motions and memoranda in this case and has looked at the cases cited by counsel, and it is the opinion of the Court that the testator’s will, Mr. Forti’s will in this case, is clear, that the language is unambiguous, that he clearly defined his children in the preamble as being Kenneth J. Forti and Denise A. Forti, that the definition of his children prevails over the more general clause which is found later in the will, the more general boiler plate language concerning children on page 16 of the will, paragraph C2, and that the Court will therefore grant the personal representative’s Motion for Summary Judgment, no genuine issue of material fact being present.” The appellee’s motion for summary judgment regarding appellant’s pretermitted heir claim was also granted by written order on January 17, 1990.

Summary Judgment Standard The Court’s primary concern when reviewing the grant or denial of a summary judgment motion is deciding whether a dispute as to a material fact exists. Md.Rule 2-501; King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Mayor and City Council of Balt. v. Fid. & Dep. Co., 282 Md. 431, 446 , 386 A.2d 749 (1978); Dietz v. Moore, 277 Md. 1, 4 , 351 A.2d 428 (1976) (quoting Brown v. Suburban Cadillac, 260 Md. 251, 255 , 272 A.2d 42 (1971)). All inferences are resolved against the moving party.

King v. Bankerd, 303 Md. at 111 , 492 A.2d 608 ; Dietz v. Moore, 277 Md. at 4 , 351 A.2d 428 . Summary judgment is improper when there is “a conflict between the inferences that may be drawn from that before the court.” King v. Bankerd, 303 Md. at 111, ³⁵⁰ 492 A.2d 608 . The function of appellate review is not to decide the triable issues or determine their credibility. May Dept.

Stores v. Harryman, 65 Md.App. 534, 538-539 , 501 A.2d 468 (1985), aff'd, 307 Md. 692 , 517 A.2d 71 (1986). For the reasons stated infra, we find there is a genuine dispute of material fact regarding the decedent’s intentions when he drafted his will. Determination of this triable issue is necessary to resolve the appellant’s right to a share in the decedent’s estate. Accordingly, we reverse and remand for findings in accordance with this ruling.

In order to aid the orphan’s court in its determination on remand, we point out the applicable law. Pretermitted Child The Orphan’s Court correctly determined that the appellant cannot share in the estate under the pretermitted child statute. The only dispute was one of law which the Orphan’s Court could properly resolve. Md. Rule 2-501; King v. Bankerd, 303 Md. at 111 , 492 A.2d 608 .

A pretermitted child is statutorily entitled to a share in the estate if: “(1) The will contains a legacy for a child of the testator but makes no provision for a person who becomes a child of the testator subsequent to the execution of the will; (2) The child was born, adopted, or legitimated after the execution of the will; (3) The child, or his issue, survive the testator; and (4) The will does not expressly state that the child, or issue, should be omitted.” Md.Est. & Trusts Code Ann. § 3-301(b) (1974). The appellant must meet all the criteria to receive a share in the decedent’s estate. The Orphans’ Court addressed only the second requirement, the timing of the legitimation in regard to the will. The court did not need to determine whether the appellant met the other criteria when it found that she failed to qualify as a pretermitted ³⁵¹ child because she was legitimated before the will was executed.

With no legal support whatsoever, the appellant maintains that she can only be legitimated judicially under Section 1-208 of the Estates and Trust Article, and that the court has yet to make such a determination. Section 1-208, however, provides three additional means of legitimation: by acknowledgment in writing, by openly and notoriously recognizing the child, or by marrying the mother and acknowledging himself orally or in writing to be the father. The appellant produced uncontroverted evidence showing that the decedent had openly and notoriously recognized her as his child long before he executed his will in October, 1987. The Orphans’ Court correctly ruled that she was legitimated prior to October, 1987, and could not, therefore, be a pretermitted child eligible to receive a share of the estate.

Intent of Decedent When construing a will, the