Downes v. Downes

BARBERA, Judge. Appellant, Shirley L. Downes, filed this appeal after the Circuit Court for Talbot County, on appeal from the orphans’ court, denied her motion to grant a fifth petition for extension of time to file an election to take a statutory share of her deceased husband’s estate. The court determined that it did not have the discretion to grant the petition after the preceding extension period had expired, and dismissed the appeal. Appellant challenges that judgment before us.

For the reasons that follow, we affirm. FACTS AND LEGAL PROCEEDINGS Appellant’s husband, Eldridge Downes, IV, (“decedent”) died testate on October 23, 1997. The decedent was also survived by a son from a previous marriage, Gregory Downes, appellee. ⁶⁰¹ In his last will and testament, the decedent bequeathed to appellant all of his personal property and a marital trust. The trust was to be funded by any assets that exceeded the credit shelter equivalent amount, ie., all sums exceeding $600,000.00, which, in 1997, was the amount a testator could pass to other beneficiaries free from federal tax.

The amount of appellant’s inheritance, therefore, depended on the net value of the decedent’s estate. The credit shelter equivalent amount was bequeathed to a residuary trust for the benefit of the decedent’s parents and descendants. At the time of the decedent’s death, appellee was the sole living beneficiary of the residuary trust. Appellant was named as personal representative of the estate.

She had difficulty ascertaining the value of the decedent’s estate due to several unresolved claims against the estate and disputes over the decedent’s ownership interests in three businesses. The problems encountered by appellant in valuing the estate prompted her to seek to extend the period within which she could elect to renounce the will and take what is known as the “statutory” or “elective” share of the estate, i.e., a one-third share of the decedent’s estate if, as in this case, the decedent also has a surviving child. See Maryland Code (1974, 2001 Repl.Vol.), § 3-203(a) of the Estates and Trusts Article (“ET”). 1 Extensions of time to elect the statutory share are authorized by ET § 3-206(a), which at the relevant time provided: In general; extension. — The election by a surviving spouse to take an elective share shall be made not later than seven months after the date of the first appointment of a personal representative under a will. The court may extend the time for election, before its expiration, for a period not to exceed ⁶⁰² three months at a time, upon notice given to the personal representative and for good cause shown. [2] Appellant filed five petitions for extension of time.

The first four of these were timely filed and were granted by the orphans’ court. The election period under the fourth petition expired on June 2, 1999. Twenty-two days later, appellant filed a “Fifth Petition for Extension of Time to File Election to Take a Statutory Share” (“fifth petition”). The orphans’ court denied the fifth petition as having been filed late.

Appellant filed a motion to reconsider the denial of the petition, arguing that she had substantially complied with the statutory deadline. By order entered on September 28, 1999, the orphans’ court denied the motion to reconsider. In a separate opinion, the orphans’ court rejected appellant’s substantial compliance argument, explaining that it lacked the authority to grant the petition because it was filed after the expiration of the preceding extension period. 3 Eventually, through litigation and other means, the estate’s financial affairs were resolved and its net worth was determined to be approximately $1,000,000.00. Consequently, about a year and a half after the orphans’ court denied the fifth petition, appellant filed the fifth and final administration account of the decedent’s estate. ⁶⁰³ The orphans’ court approved the final account on February 13, 2001.

The court determined that appellant was entitled to take under the will only the personal property, which was valued at $66,155.00. Appellant filed an appeal in circuit court.' 4 She challenged the orphans’ court’s denial of the fifth petition. She also filed in the circuit court a “Motion to Grant the Fifth Petition for Extension of Time to File Election to Take a Statutory Share.” Appellee filed a motion to intervene, which the court granted. Appellee also filed a motion to dismiss the appeal on the ground that the appeal was late because the orphans’ court’s denial of appellant’s motion for extension of time and motion for reconsideration were appealable orders.

The circuit court agreed that appellant’s appeal was untimely and dismissed it. Appellant appealed to this Court, and we reversed in an unreported opinion, Downes v. Downes, No. 2162, September Term, 2001, 148 Md.App. 715 (filed November 14, 2002), cert. denied, 373 Md. 407 , 818 A.2d 1106 (2003). We held that the orphans’ court’s orders denying appellant’s fifth petition and subsequent motion to reconsider were not immediately appeal-able. We explained that appellant’s claim was not resolved until the orphans’ court approved the fifth and final administration account on February 13, 2001, and only then did the claim become final, and thus appealable.

Slip op. at 14. Consequently, we remanded the case to the circuit court for further proceedings. Id. at 16. The parties appeared for a hearing in the circuit court on August 29, 2003, to address appellant’s motion to grant the fifth petition.

Appellant argued that the court had the equita ⁶⁰⁴ ble discretion to “extend the time to permit the filing even though it is technically late.” After hearing argument, the court rendered its decision: [T]he question therefore boils down to, is this Court bound by the dictates of Section 3-206 of the Estates and Trust Article and does that section require that the Petition for Extension be made prior to the expiration of the latest period for making the election? The Court finds that this Court is bound by that law. And that the election, the Court could only extend the time for election if before the expiration of the period the petition was filed seeking to have it extended for an additional three months. The court added: This, [appellant’s counsel] says, is a harsh law and maybe that’s true.

But this Court feels that if that law should be changed, as perhaps it should be to provide that an extension can be granted until the filing of the final administration account, that is a change that should be made by the legislature and not the judicial branch[,] [w]hich should not rewrite clear and unambiguous laws. The law in this case Section 3-206(a) seems clear and unambiguous to this Judge. But that notice had to be given and good cause shown prior to the expiration of the previous extension. Accordingly the Court will decline to extend the time.

And we’ll find that [appellant] gave up or lost her right to elect by failing to file that motion within the time set by the statute. The court thereafter entered an order denying appellant’s motion to grant the fifth petition for the reasons stated in its oral ruling. This appeal followed. DISCUSSION I. Appellant argues that the circuit court committed legal error in denying her fifth petition to extend the time to elect ⁶⁰⁵ the statutory share of the decedent’s estate.

Appellant states the issue before us as whether [t]he Orphans’ Court (or the Circuit Court when it is hearing a de novo appeal) has discretion to extend the deadline to accept a petition for an extension of time in which to make an election to take a statutory share when the petition was filed after the expiration of the previous period. We note preliminarily that our review is limited to whether the circuit court correctly concluded that it did not have the discretion to enlarge the election period beyond the statutorily prescribed extension period. We therefore do not reach the parties’ arguments concerning whether, assuming the court did have such discretion, it was an abuse of discretion not to grant the petition.

II

At the heart of this appeal is the proper construction of ET § 3-206(a), which, as we have said, provided at the time relevant to this case that “the court may extend the time for election, before its expiration, for a period not to exceed three months at a time, upon notice given to the personal representative and for good cause shown.” Neither the Court of Appeals nor this Court has construed this provision, although the Court of Appeals construed an earlier version of it in Barrett v. Clark, 189 Md. 116 , 54 A.2d 128 (1947). We therefore shall discuss that case at some length here. At the time Barrett was decided, the then-governing law precluded any extension of the statutory share election period by surviving spouses. The operative section of the statute provided that the period of renunciation was thirty days after expiration of the notice to creditors.

It read: A surviving husband or widow shall be barred of his or her right of dower in land or share in land or share in the personal estate by any such devise or bequest, unless within thirty (30) days after the expiration of the notice to creditors in the wife’s or husband’s estate, as the case may be, he ⁶⁰⁶ or she shall deliver or transmit to the Court or Register of Wills where administration has been granted a written renunciation in substantially the following form or to the following effect.... Md.Code Ann. (1943), art. 93, § 314. A separate section of the statute created an exception to that rule for infant spouses and incompetents. It provided: The renunciation as provided in Section 314 may be made by the guardian of an infant spouse, when authorized so to do by the Court having jurisdiction of the infant’s estate, or may be made on behalf of an incompetent when authorized by the equity court having jurisdiction of the person of said incompetent.

The time to make such renunciation may be enlarged before its expiration by an order of the Orphans’ Court where such will was probated for a further period of not exceeding six months upon any one application, upon a petition showing reasonable cause and on notice given to such persons and in such manner as the Orphans’ Court may direct. Md.Code. Ann. (1943), art. 93, § 315 (emphasis supplied). Mrs. Barrett, the surviving spouse, wanted the extension of time because certain litigation concerning the estate would not be resolved within the period provided by art. 93, § 314.

Barrett, 189 Md. at 118-19 , 54 A.2d 128 . She had sought to have the provisions of art. 93, § 315 applied to her so that she could seek to extend the time for filing her renunciation. She argued that the phrase “such renunciation” should be read to mean “all renunciations,” thereby bringing her within the purview of § 315. Id. at 122, 124, 54 A.2d 128 .

The orphans’ court concluded that it did not have the authority to grant Mrs. Barrett’s request for an extension of time to renounce her husband’s will. Id. at 119-20 , 54 A.2d 128 . The Court of Appeals affirmed. The Court began its analysis with the observation that “the right of a surviving husband or widow to renounce the will under the laws of this State has always been strictly construed.” Id. at 122 , 54 A.2d 128 .

To this the Court added: ⁶⁰⁷ It is not within the province of this Court to decide what provisions should be made for extending the time for filing of such renunciation, or to decide whether the time should be extended. It is only within our province to interpret what the Legislature intended by the Act as passed. Id. Then, addressing general principles of statutory interpretation, the Court said: “We follow the fundamental rule that a Court is not at liberty to surmise a legislative intention contrary to the letter of the statute, or to indulge in the license of inserting or omitting words with the view of making the statute express an intention which is not evidenced in the original form.

A statute should be construed according to the ordinary and natural import of its language, unless a different meaning is clearly indicated by the context, without resorting to subtle or forced interpretation for the purpose of extending or limiting its operation.” Id. at 123 , 54 A.2d 128 (quoting Schmeizl v. Schmeizl, 186 Md. 371, 375 , 46 A.2d 619 (1946)). Applying these principles, the Court reasoned that, if the General Assembly had intended to include all surviving spouses within the purview of § 315, it could have used language reflecting that intention. Id. at 124, 54 A.2d 128 . The Court recognized that the legislature might well have had policy reasons for permitting an extension of time for the classes of persons identified in § 315, but not for surviving spouses generally.

In this regard, the Court observed: [I]t has been usual in limitations statutes to extend the time for infants and incompetents beyond that allowed for other persons. Code, Article 57, Section 2. It is entirely possible that those persons closest to an infant or an incompetent might not learn of the probate of a will until long after its probate. On the other hand, such a contingency is hardly likely in a surviving spouse who is sui juri.

This might well have been the intention of the Legislature in extending the ⁶⁰⁸ time only to the guardian of an infant spouse and on behalf of an incompetent. It has always been the policy of the law that estates should be administered and closed as soon as reasonably possible.... The members of the General Assembly may have thought that an Act giving the power to the Orphans Court of this State, generally, upon reasonable cause shown, to extend the time to the surviving husband or widow, generally, to file the renunciation, might lead to much delay and litigation in the settlement of estates. Id. at 124-25, 54 A.2d 128 .

Consequently, art. 93, § 315 did not permit a surviving spouse, who was neither an infant nor an incompetent, to seek an extension of time for filing an election of a statutory share, beyond the time permitted by the statute. 5 Appellant contends that Barrett is inapposite to the present case because the statute in effect in 1947 permitted no extensions of the election period for surviving spouses (other than those described in art. 93, § 315), thereby making Mrs. Barrett’s extension request “irrelevant.” In addition, appellant points out that the case before us is different from Barrett because the present case involves the court’s authority to extend the time within which an extension can be made, whereas Barrett involved a requested extension of time before the election period had expired. These factual distinctions, although correct, do not render Barrett inapplicable to the instant case. To the contrary, although the statute governing time extensions has changed since Barrett was decided, the present case and Barrett are factually analogous on at least one significant point: Both cases involve a surviving spouse seeking to enlarge the election period beyond that prescribed in the applicable statute. ⁶⁰⁹ More important, the underlying legal principle that the statutory share statute is to be strictly construed is as applicable to the present case as it was to Barrett . Indeed, we have found no evidence of a retreat by the Court of Appeals from this rule of strict construction.

Bunch v. Dick, 287 Md. 358 , 412 A.2d 405 (1980), is instructive in this regard. In Bunch , the Court addressed the question whether an election by a surviving spouse to take a statutory share from the decedent’s estate is effective when the election is filed after the surviving spouse’s death. The orphans’ court had concluded that the surviving spouse had not made a timely election to take the statutory share. This ruling had the effect of excluding the surviving spouse’s estate from participating in the estate of the decedent, because the spouse had only a life estate under the terms of the decedent’s will.

The Court of Appeals affirmed. Quoting with approval a decision of the Surrogate’s Court of Westchester County, New York, the Bunch Court stated: “The right [to elect the statutory share] sought to be enforced is conferred by statute and in derogation of the common-law right of every testator to make a free disposition of his worldly goods. One seeking to avail herself of such right must comply with the plain conditions imposed by the legislature.” Bunch, 287 Md. at 361-62 , 412 A.2d 405 (quoting In Re Banks’ Will, 31 N.Y.S.2d 652 , 655 (Sur.Ct.1941)). Because the surviving spouse in Bunch had not complied with all of the requirements set out in ET § 3-207(a) (prescribing the form by which the election must be made), the written renunciation of the decedent’s will, which the surviving spouse had signed but not filed before her death, was ineffective to constitute an act of election under the statute.

Bunch, 287 Md. at 362 , 412 A.2d 405 . Although not directly controlling this case, Barrett , and to a lesser extent Bunch , lead naturally to the conclusion that the period prescribed in ET § 3-206(a) for extending the ⁶¹⁰ time within which a surviving spouse may elect the statutory share may not be enlarged by either the orphans’ court or the circuit court on de novo appeal. Thus, if a surviving spouse does not file a petition for extension of time within the originally prescribed period or, as here, the previously extended period, the spouse is foreclosed from thereafter obtaining additional time to make the election. This conclusion is consistent with the plain language of ET § 3-206(a), the Court of Appeals’ interpretation of the earlier version of the statute in Barrett , and the rationale of Bunch .

III

Appellant seeks to escape from the seemingly foreclosing effect of ET § 3-206(a), Barrett , and Bunch by arguing that both the orphans’ court and the circuit court had the authority to accept appellant’s untimely petition for extension of