Durham v. Walters

GARRITY, Judge. Paul Durham and others (the appellants), who are heirs at law of Orville Oscar Outten, appeal from an order of the Circuit Court for Worcester County granting a motion to dismiss caveat proceedings. The circuit court held that, in the absence of fraud, heirs at law could not challenge the will of the decedent by filing a petition to caveat the will more than six months following the first appointment of a personal representative under the will. On appeal, the appellants present the following questions: 1.

Whether the provisions of the Maryland Estates and Trusts Code Ann. § 5-207(a) are mandatory in that, under no circumstances, can a petition to caveat be filed after the expiration of six months following the first appointment of a personal representative. 2. Whether the notice requirements of Maryland Estates and Trusts Code Ann. § 2-210, when “Lists of Interested Persons” provided pursuant to Section 7-104 is inaccurate or incomplete, satisfies the procedural due ⁴ process requirement of the Fourteenth Amendment to the United States Constitution. For the reasons set forth in this opinion, we hold that the circuit court did not err in dismissing the appellants’ petition to caveat. Statement of the Facts Orville Oscar Outten (the decedent) lived and worked in Pocomoke City, Worcester County, Maryland for most of his adult life.

He was the owner of several large tracts of real estate in Worcester County. Mr. Outten never married and had no children; his parents and only brother predeceased him. On May 29, 1980, while hospitalized for a lengthy illness in Peninsula General Hospital, Orville Outten executed his last will and testament. In this holographic will, the decedent devised all of his estate to one Nora V. Windsor for the term of her natural life, and after her death to Larry G. Sterling.

These persons were not related to the decedent. The will was witnessed by Susan L. Peacock and Henry P. Walters. Mr. Outten died on July 3, 1980. The will was admitted to administrative probate on July 7, 1980, and on that day, Mr. Walters, an attorney in Pocomoke City, who had known the decedent and the decedent’s family for over fifty years, was appointed personal representative.

Pursuant to his duties as personal representative, Mr. Walters delivered the will to the Register of Wills for Worcester County, and filed a petition for probate in the Orphans’ Court. He also furnished the court with a list of the names and addresses of the heirs and legatees of the decedent, to the extent known to him. Notices were duly sent by the Register of Wills to those individuals named by Mr. Walters. Notice of the appointment of Henry P. Walters as personal representative and of the probate of the decedent’s will, was published in a newspaper of local distribution.

Through that notice, all persons having any objection to the appointment or the probate of the will were ⁵ notified of their requirement to file their objections with the Register of Wills on or before January 7, 1981. The notice also informed claimants that any claim not so filed on or before January 7, 1981, or any extension thereof as provided by law, would be unenforceable thereafter. On October 16, 1981, the appellants, Paul Durham and twenty-six other persons, identifying themselves as issue of the decedent’s maternal and paternal grandparents, filed a petition and caveat in the Orphans’ Court of Worcester County. By this petition, the appellants asserted that as notice of the probate had not been sent to any of the issue of decedent’s grandparents, the order of the Orphans’ Court which admitted the decedent’s alleged will to probate should be annulled, and that the letters testamentary granted to Henry B. Walters should be revoked.

An amended petition and caveat was filed on November 13, 1981 by the appellant Paul Durham. The amendment brought the total number of caveators to thirty-nine heirs at law of the decedent. Petitioners asserted that the will was invalid because it was not signed by the decedent or witnessed by two people in the decedent’s presence; that it was not read by or to the decedent before its execution; and that it was procurred by undue influence. All of these allegations were denied by the personal representative who further answered that he had delivered to the Register of Wills all names and addresses of the decedent’s heirs known to him.

The personal representative also asserted that the petition and caveat was not timely filed pursuant to Md. Est. & Trusts Code Ann., § 5-207. On December 15, 1981, the Orphans’ Court ordered that the administrative probate in the case be set aside and replaced by a judicial probate. Mr. Walters opposed the judicial probate in a petition to dismiss the caveat proceedings. This petition was denied by the Orphans’ Court and appeal was taken to the circuit court.

A hearing was held in the Circuit Court for Worcester County on July 8, 1982. At this hearing, Mr. Walters ⁶ testified that he was very familiar with the Outten family, having known the decedent for more than fifty years. The personal representative related his knowledge that the decedent’s mother and father and only brother had predeceased the decedent, and that three aunts of the decedent had survived him. The personal representative further stated that to the best of his knowledge as of July 7, 1980, he knew of no other relative of the decedent.

There was no testimony or evidence whatsoever that the personal representative failed to act with due diligence in attempting to ascertain the existence of heirs beyond those known to him. On March 30, 1983, the Circuit Court for Worcester County issued its opinion and order in the case. By this order, the court granted the petition of the personal representative to dismiss the amended petition and caveat of the decedent’s purported heirs at law. I. Six Month Filing Period in Caveat Proceedings Maryland Estates and Trusts (Est. & Trusts) Code Annotated, § 5-207 (1974) sets forth in pertinent part: (a) Filing petition to caveat. — 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.

Applying the pertinent statute, Md.Code Ann. Art. 94, § 2, which sets out the manner of computation for determining any period of time prescribed by statute, the six month filing period under Section 5-207(a) for an estate in which the personal representative was named on July 7, 1980, would have expired on January 7, 1981. The appellants, however, contend that there are exceptions to the provisions of Section 5-207(a) which should permit the filing of caveats against a will more than six ⁷ months after the first appointment of a personal representative. The appellants present a three-fold argument in favor of their contention. First, the appellants assert that the language of the statute itself is “not imperative on its face” and that arguably, the Orphans’ Court is “not deprived of jurisdiction to entertain a petition to caveat made after the expiration of six months.” Second, the appellants assert that the statute should not operate to their detriment in this case because the personal representative’s failure to notify the decedent’s heirs constitutes “a fraud, innocent or otherwise”, that should preclude the personal representative from invoking the limitation set forth in Section 5-207 to the detriment of the legal heirs.

Finally, the appellants assert that “in certain circumstances the otherwise mandatory provisions of Section 5-207 can be interrupted by the principles of waiver and estoppel.” We shall examine each of these three contentions seriatim. a. Statutory Language Prior to 1894, it was the established law of Maryland that a lapse of time would not exclude the inquiry into whether a certain paper constituted the will of a decedent. Emmert v. Stouffer, 64 Md. 543, 559 , 6 A. 177 (1886); Clagett v. Hawkins, 11 Md. 381, 387 (1857). Nearly a century ago, however, the Legislature enacted Chapter 405 of the Acts of 1894.

This statute provided in pertinent part that: No will, testament, codicil or other testamentary paper shall be subject to caveat or other objection to its validity after the expiration of three years from its probate. The Court of Appeals first interpreted this statute in Garrison v. Hill, 81 Md. 551 , 32 A. 191 (1895). The Court held that the new statute would act as a bar to belated caveat proceedings against wills probated after the passage of the Act. Judge Boyd, speaking for the Court of Appeals, explained the purpose of the statute as follows: ⁸ The statute is a very important one.

Great injustice was possible to be done to devises [sic] 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, and other dangers suggest themselves under the former practice in this State. The Legislature had, therefore, wisely undertaken to limit the time within which wills can be attacked. Garrison v. Hill, 81 Md. at 555-556 , 32 A. 191 .

By Chapter 357 of the Acts of 1933, codified at Maryland Code, Art. 93, § 352, the Legislature reduced the statutory time limitation for the filing of caveats to one year. The language of the section, however, remained otherwise unchanged. Commenting on this statute, Judge Philip L. Sykes, in his treatise, Contest of Wills in Maryland (1941), § 3 at p. 4 stated, “The language of the statute is imperative, and deprives the Orphans’ Court of jurisdiction to entertain an objection made after the expiration of the year.” A subsequent amendment to the statute reduced the period of time from one year to six months. Acts of 1957, Chap. 173, codified at Maryland Code, Art. 93, § 375.

In Section 375, however, the mandatory language of the statute limiting jurisdiction was maintained. “No will or codicil shall be subject to caveat or other objection to its validity at the expiration of six months from its probate.” (Emphasis added). As the appellants note in their brief, the present statute, based on the language of the 1969 amendment, Acts of 1969, Chap. 3, no longer contains the mandatory term “shall”. Rather, the statute now states “a verified petition to caveat a will may be filed any time prior to the expiration of six months____” Section 5-207. The appellants assert that this change in the language of the statute indicates that the Orphans’ Court is no longer deprived of ⁹ jurisdiction to entertain a petition to caveat filed after the expiration of six months.

The language of Section 5-207 is unambiguous and permits only one possible interpretation. We conclude that the provision, like its predecessors, precludes the consideration of a belated caveat after a fixed lapse of time. Meyer v. Henderson, 88 Md. 585, 593 , 41 A. 1073 , on motion for reargument, 42 A. 241 (1899). The 1969 amendment to Section 5-207, changing the language of the statute from “shall” to “may” merely clarified the form of the statute without affecting its substance.

Read in its complete context, the statute continues to require that a caveat be filed, if an interested party chooses to contest a will, no later than six months after the first appointment