Edery v. Edery

MEREDITH, J. In this case, we will review the Maryland statute that addresses decisions about the disposition of the body of a deceased person — Maryland Code (1982, 2005 Repl. Vol., 2008 supp.), Health-General Article (“HG”), § 5-509 — in the context of a dispute among siblings regarding the proper burial place for their mother. Four of the siblings — Shlomo Edery, David Edery, Michael Ben-Canaan, and Hanna Ben-Yehouda (“the majority siblings”), appellees — filed a complaint in the Circuit Court for Montgomery County, seeking that court’s authorization for them to make all necessary decisions regarding the final disposition of their mother’s body, to the exclusion of two of their brothers, Hanan Edery and Paul Edery, appellants. The majority siblings alleged that their mother, Sultana Edery, desired to be buried in Montgomery County, Maryland.

Hanan and Paul responded that it was their mother’s wish to be buried in Israel, near her deceased husband and a son who had predeceased her. After a hearing, the circuit court authorized the majority siblings to make final arrangements, and enjoined Hanan and Paul from interfering with that process. Hanan and Paul appealed. Although the mother is now interred in the Mt.

Lebanon Cemetery in Prince George’s County, Hanan and Paul have not abandoned their quest to have their mother’s body laid to rest in Israel. We conclude that the circuit court erred in excluding relevant evidence about Sultana’s wishes regarding the final disposition of her body. Accordingly, further proceedings may be required to ²¹⁸ resolve this dispute, and we will remand the matter to the Circuit Court for Montgomery County. Factual Background and Proceedings Sultana Edery was born in Morocco on January 1, 1928.

While living in Morocco, she married and bore six children. The family moved from Morocco to Israel in July 1956, and a seventh child, appellee Shlomo, was born there. Beginning in 1966, five of the children emigrated to the United States. Avi, who died in Jerusalem in 1972, is buried in Israel; and appellee Hanna Ben-Yehouda still resides in Israel.

In the late 1980s, Sultana and her husband moved to the United States, and settled in Montgomery County, Maryland. In 1989, Sultana’s husband returned to Israel, where he died and was buried in the same cemetery as the couple’s late son, Avi. Although Sultana could speak in Hebrew, Arabic, French, and Spanish, she could not read or write any language. In July 2003, with the assistance of an attorney, Sultana executed three documents: (1) a living will and advance directives, (2) a durable power of attorney, and (3) a last -will and testament.

None of these documents said anything one way or the other about Sultana’s wishes regarding the disposition of her body following her death. Each of these documents was signed with only her initials, as was her usual custom. On or about February 10, 2007, Paul Edery mailed a copy of the documents to Michael Ben-Canaan, one of the appellees. In January 2009, Sultana was a patient in the intensive care unit of Shady Grove Hospital, and the family members feared she did not have long to live.

Differences of opinion arose among the siblings as to what to do with respect to burial once their mother passed away. The majority siblings took the position that Sultana should be buried in Montgomery County, but Hanan and Paul took the position that their mother should be buried in Israel. The four siblings who favored burial in Montgomery County filed suit against brothers Hanan and Paul in the Circuit Court for Montgomery County. The complaint sought the ²¹⁹ following relief: (1) that the court grant the majority siblings legal authority “to arrange for and make decisions regarding the final disposition of Sultana Edery upon her death”; (2) that the court issue an injunction enjoining Hanan and Paul from removing the body of Sultana from the State of Maryland after her death; and (3) that the court issue a declaratory judgment declaring the respective rights of the parties relative to their mother’s final disposition after death.

Because they had been advised by Sultana’s physicians that she could die at any moment, the majority siblings also requested a temporary restraining order and preliminary injunction to prevent Hanan and Paul from removing Sultana’s body from the State of Maryland upon her death. A temporary restraining order was issued by the court, and a hearing was scheduled on the request for preliminary injunction. Hanan and Paul responded with a petition to rescind the protective order, advising the court: “It was our mother’s wish to be buried in Israel. She dictated and signed a statement to this effect on July 30, 2006.” Hanan and Paul attached to their response a number of affidavits and documents, including a copy of a document that was hand-written in Hebrew, accompanied by a certificate from a translator who stated that the document, dated July 30, 2006, is translated as follows: “I, Sultana Edery, request from my son, Hanan Edery, to ensure on my behalf, that I will be buried in the Land of Israel, next to my husband and my son, may they rest in peace.” The document indicated that it was witnessed by Dr. David Kadosh.

Also attached was a copy of an e-mail from Dr. Kadosh to Hanan, recounting that Kadosh had had a conversation with Sultana about burying his own father in Israel. According to Dr. Kadosh, Sultana responded that Kadosh’s father was “a very Lucky man to have great kids that would do that for him[;] that[’]s what I wish my kids would do for me.” Hanan and Paul filed a request for “an emergency hearing to lift the temporary restraining order.” And they filed other papers intended to persuade the circuit court of their mother’s desire to be buried in Israel. ²²⁰ When the case came up for a hearing on the majority siblings’ request for a preliminary injunction, the court acknowledged the parties’ need for an expeditious resolution of their dispute. The court asked counsel for the majority siblings whether she would be amenable to proceeding that day with a hearing on the request for a final injunction. Counsel responded that the supporting testimony would be the same at either hearing, and she had “no problem” with proceeding on the majority siblings’ request for a final injunction.

The court then inquired of Hanan: “Do you understand what I’m talking about, sir?” Hanan responded: “Yes. I would like to proceed on this as quickly as possible today.” After some discussion about the possible need for an interpreter to assist Hanan and Paul, who were both self-represented, Hanan asked to be heard, and stated: ‘We want to proceed.... ” The court inquired: Well, are you telling me that you want to proceed without the assistance of a Hebrew interpreter.” Hanan replied: “Right. Correct.” The court then addressed Paul and asked: “Mr. Paul Edery, do you agree?” Paul confirmed his agreement to proceed. Michael Ben-Canaan then testified that he was the oldest son of Sultana Edery.

He stated that his mother was gravely ill, and had been mentally incompetent for the past three years. Michael acknowledged that his brother Paul had sent him three documents in February of 2007, purportedly signed by Sultana on July 15, 2003, appointing Hanan her attorney in fact, and designating him to serve as her health care agent to make health care decisions for her in accordance with her advance directives. The will dated July 15, 2003, appointed Hanan to serve as personal representative of Sultana’s estate; the will named Paul as an alternate personal representative. Michael said he could not confirm that the initials on those documents were in fact his mother’s customary initialed signature, but he noted that, in any event, none of those three documents mentioned a preference as to place of burial. ²²¹ Michael further acknowledged that, after the majority siblings initiated the suit for injunctive relief, he had observed, among the responsive documents filed with the court by Hanan and Paul, a copy of the hand-written document his mother had allegedly signed in 2006 with respect to being buried in Israel.

Michael testified that, prior to filing suit, he had never seen nor heard of such document. On direct examination, Michael was asked: “Mr. Ben-Canaan, do you know where your mother wants to be buried upon her death?” He replied: “Without a shadow of a doubt, she always mentioned to me that she wanted to be buried amongst and where her children reside, namely here in the United States, Montgomery County.” To accommodate that wish, the majority siblings had purchased a burial lot for Sultana in Mt. Lebanon Cemetery, in Adelphi, Maryland. According to Michael, it would not even be possible for Sultana to be buried in the same cemetery as her deceased son and spouse because “[t]hat cemetery is filled to the brim.” The next closest cemetery in Israel was 15 minutes away, and Sultana’s daughter who resides in Israel is approximately 200 miles away.

Michael also testified that Jewish burial customs mandate burial before sundown on the day of death and the tradition of “sitting Shivah,” both of which would be impossible for the family to accomplish if Sultana was to be buried in Israel. Hanan called as a witness Felix Sabban, one of the persons who claimed to have been present on July 30, 2006, when Sultana initialed a statement indicating a wish to be buried in Israel. Sabban identified the hand-written document dated July 30, 2006. Sabban testified that the body of that document was written by Dr. David Kadosh, a dentist, who was, at the time, visiting Sultana in a nursing home in Montgomery Village.

Hanan attempted to ask Sabban what Sultana had said that day about wanting to be buried in Israel. The transcript reflects the following: BY MR. HANAN EDERY: Q What did Sultana Edery tell Dr. Kadosh? ²²² [COUNSEL FOR MAJORITY SIBLINGS]: Objection. THE COURT: What she told Dr. Kadosh regarding where she wanted to be buried is not admissible.

It’s hearsay. So, I’ll sustain the objection. BY MR. HANAN EDERY: Q Did you hear Sultana Edery say that she wanted to be buried in Israel?

A [BY FELIX SABBAN] Yes, I did. [COUNSEL FOR MAJORITY SIBLINGS]: Objection. THE COURT: Sustained. That’s the same thing I just told you. He’s the witness and he’s reciting a hearsay statement.

She’s not available to be cross-examined on that and it’s being offered to prove the truth of the matter that he’s stating. BY MR. HANAN EDERY: Q Did Dr. Kadosh treat Sultana Edery? A Yes.

Q And did he ask her that’s what she wants? A Yes. [COUNSEL FOR MAJORITY SIBLINGS]: Objection. THE COURT: Sustained. This document is not in evidence and are you offering it in evidence?

MR. HANAN EDERY: Yes. After counsel for the majority siblings asserted an objection “as to the entire contents of this document as hearsay,” the court asked Hanan to proffer the English translation of the document that was written in Hebrew. Hanan responded.

MR. HANAN EDERY: The document says, Sultana Edery wants her son Hanan Edery to insure that she is buried in Israel.... In Beersheva, Israel next to her son and her husband. THE COURT: All right.

That’s hearsay. Because you’re asking me to take that document to show that she wanted to be buried in Israel. So, it’s hearsay and I can’t admit that. ²²³ A second witness was called, and Hanan asked the witness if he knew where Sultana wished to be buried. Again, counsel for the majority siblings lodged a hearsay objection, and the court ruled: “Again, this calls for a hearsay answer.

I wouldn’t allow him over objection to answer that question because the response was hearsay.” Hanan then testified. He told the court that his mother, Sultana, had been “an observant Jew just like my father for all of her life. And she is ... an Orthodox observant Jew.” She was an Israeli citizen, and, at the time of the hearing, she was 86 years old. In the recent years prior to the hospitalization, Hanan and Paul had been principal caregivers for their mother.

According to Hanan, although Sultana’s health had been in decline for several years, her mental state had been good until the past year. Hanan testified that he was present on July 30, 2006, when Dr. Kadosh prepared the hand-written document referring to burial in Israel. The transcript reflects the following: A [BY HANAN EDERY] My mother also signed in my presence the document titled, all the three [sic] and then the request for burial in Israel. I was present and Dr. Kadosh spoke to— Q [BY THE COURT] That’s the document that I’m not admitting.

A I was present. The document was written by Dr. Kadosh. Q All right. Well, it doesn’t, I understand what you’re telling me but it doesn’t matter.

A I want to explain it. Q But it’s not anything that I’m going to be able to consider because that document is not admissible. A But I’m a witness here. Q I know that you’re a witness and it doesn’t make it any less hearsay. ²²⁴ Nevertheless, Hanan testified: “My mother made me promise to her, just like I brought her from Israel to the United States, to take her back to Israel.” He added: “Although she thinks that this is a great country, ... her love is Israel.” Hanan also disagreed with Michael’s testimony about the lack of burial space in Israel.

Hanan testified: Because I spoke to the Israeli Hevrat Kadisha. It’s called the burial society, the governmental agency that does, and what they are willing to do is create a space near, not exactly one next to the other but that’s not what the important thing is. The important thing is that she will be buried where she wants to be buried. In Beersheva, Israel.

And the cemeteries get full. And they built a new cemetery adjacent, like a short distance from the old cemetery----[I]f it was possible, by the religious Halakhah to move a body from one place to another, it would be done. But the Halakhah says you can bring a body from the Diaspora to Israel. You can uproot the bones to Israel, but not in Israel from one place to another.

The importance of the burial in Israel is higher than whether you are buried one next to the other. To accommodate their mother’s wish, Hanan and Paul had purchased a burial plot for their mother in Beersheva, Israel, on December 11, 2008. When Paul attempted to testify about a document he had obtained from one of his mother’s former nurses, the court interjected: “[Ajnything that your mom said about where she wanted to be buried is hearsay. Unless it complies with the testamentary law of this State and that means, unless it was in a will, or it complies with the Health General Article.” When the court asked Hanan if there were further witnesses, Hanan inquired about the possibility of having Dr. Kadosh testify via telephone from New York.

The court responded: THE COURT: But Dr. Kadosh, as I understand it, is simply going to give me hearsay testimony about what your— ²²⁵ MR. HANAN EDERY: He wrote this document. THE COURT: Whether he wrote it, I don’t think you’re understanding what I’m telling you. I don’t care if you bring in 50 people who tell me they heard your mom say she wants to be buried in Israel.

It’s still hearsay. When the court offered Hanan a final opportunity to present any further testimony, Hanan stated: I just want to add for the record that I saw with my own eyes, the document that my mother specified exactly where she wants to be buried, in Israel, in Beersheva, Israel. And she specifically requested that her son, Hanan Edery, shall take care of all arrangements for the funeral and the burial in Israel, with my own eyes. When the parties began closing arguments, the court, sua sponte, reconsidered its ruling to exclude the hand-written statement dated July 30, 2006.

The court observed that, although hearsay, the document could come into evidence pursuant to HG § 5-509(a), which provides that a person over 18 years of age “may decide the disposition of the individual’s own body after that individual’s death ... by executing a document that expresses the individual’s wishes regarding disposition of the body.... ” After admitting the document, the court permitted counsel for the majority siblings to recall Hanan as a witness. Counsel for the majority siblings then asked Hanan a series of questions casting doubt on the authenticity of the document that purported to be an expression of Sultana’s intent. Among the points brought out during this examination was the fact that the document had not been mentioned in several prehearing statements made by Hanan. The point was also made that Hanan had been briefly married to the sister of Dr. Kadosh.

Hanan contended he could not remember when or for how long he was married to Dr. Kadosh’s sister, although the doctor was a close personal friend. Counsel for the majority siblings suggested the Dr. Kadosh had owed Hanan a big personal favor to repay Hanan for having entered into a marriage of convenience with Kadosh’s sister. In closing ²²⁶ argument, counsel for the majority siblings asserted that the hand-written document was a recently fabricated forgery. When Hanan began his closing comments, the court advised him: I don’t doubt that you two were the primary caretakers in the later years of her life.

And it may be on a non-legal level that I believe that she may have told you she wanted to be buried in Israel.... The problem is, I’m not applying religious law here. I’m applying the law and procedure of the State of Maryland. And I’ve already told you that except for the document which I reconsidered, because I quite frankly, erroneously excluded it.

Other than that document, which is being questioned now, there isn’t any evidence that I have before me that she specifically wanted to be buried in Israel. ... [T]he only evidence I have is this document which is called into question. ... ... I frankly do not doubt much of what you tell me about what your mom’s wishes were, although, again, I cannot as a legal matter, consider that. After a break, the court delivered its ruling from the bench, stating: It goes without saying that this is a very, very tragic case for many reasons. Number one, although I’m sure that Sultana lived a long and happy life, the time of her demise is approaching and unfortunately her six surviving children cannot agree and have divided themselves into two groups over where her remains will be buried.

And I can tell you that as a human being, as a Jew, my heart goes out to all of you. [I]t’s clear to me that under Maryland law, there are really two ways that a person makes provision for the disposition ²²⁷ of their body upon death. One is by last will and testament. The second is pursuant to a document prepared under [HG §] 5-509. I think everyone can concede, after reviewing the last will and testament, that there is no provision made therein for the disposition of Sultana’s body upon her death. ...

The document that I ... initially did not admit into evidence, but then reconsidered and admitted, was a document that was allegedly prepared on July 30, 2006, and ... the parties have agreed that it says in Hebrew, expresses the desire of Sultana to be buried in Israel---- ... I think it’s quite possible, that Sultana wanted to be buried in Israel, or wants to be buried in Israel. Her husband is there. Her son is there.

Sometimes when you outlive one of your children, there’s no more heartbreaking thing and you may want to be with that child in eternity. But as I said earlier in this case, I have to decide this law [sic] not based on passion or sympathy or pity. I have to base it on the secular law of the State of Maryland. ... ... I really am not comfortable with this document dated July 30, 2006.

I’m just not comfortable with it. It just doesn’t make sense to me that it never got mentioned before. It doesn’t make sense to me when I look at the signature of Sultana three years prior. It doesn’t look like her signature. ...

It’s very tough for me to point fingers in this case. It really is. Because everybody is hurting here. But I can’t accept this document.

I just can’t accept it. So, based upon that, I have to go back to the statute, 5-509 of the Health General Article,