Estate of Click v. Estate of Click

WATTS, J. Appellants, the Estate of Steven Click and Bret W. Click, appeal the grant of summary judgment and declaratory judgment in favor of appellees, Elizabeth Smith, Rebecca Maberry, and Teresa Talley, 1 as to the construction of the Last Will and Testament of Joanne Click. 2 Appellants noted an appeal raising two issues, 3 which we have slightly rephrased and reordered as follows: I. Whether the circuit court erred in finding that the provisions of the third and fifth paragraphs of Joanne’s Last Will and Testament were unambiguous? ³⁵³ II. Whether the circuit court erred in not considering extrinsic evidence of the surrounding circumstances concerning Joanne’s intent? We answer the first question in the affirmative and shall, therefore, reverse. As a result of the reversal on Issue I, we shall not address Issue II.

FACTUAL AND PROCEDURAL BACKGROUND On September 30, 2009, Joanne died testate. Joanne was survived by: one son, Steven William Click; 4 one grandson, Bret William Click (Steven’s son), a minor; 5 three granddaughters, Elizabeth Smith, 6 Rebecca Maberry, and Teresa Talley 7 (Frank’s daughters); and one sibling, Warren Walls. Dated October 25, 1999, Joanne’s Last Will and Testament (the “Will”) 8 provides, in pertinent part, as follows: I, JOANNE CLICK, a resident of EDGEWATER, MARYLAND, declare that this is my Last Will and Testament. FIRST I hereby revoke all previous Wills and Codicils that I have made.

THIRD I am not married and have no spouse. I give all my jewelry, clothing, household furniture and furnishings, personal automobiles and other tangible articles of a personal nature, or my interest in any such property ³⁵⁴ not otherwise disposed of by this Will or in any other manner together with: (a) any insurance on the property, (b) any personal life insurance proceeds, (c) any registered retirement savings plans, registered retirement income funds, pension plans and annuities, (d) any income tax deferred assets, to my one and only child: STEVEN WILLIAM CLICK. All references in this Will to “my child” or “my children” include any and all children hereinafter born to or adopted by me. FIFTH To BRET WILLIAM CLICK my GRANDSON, I LEAVE THE SUM OF $1000.00 To ELIZABETH TENNANT my GRAND[D]AUGHTER, I LEAVE THE SUM OF $1000.00 To REBECCA MABERRY my GRAND[D]AUGHTER, I LEAVE THE SUM OF $1000.00 To THERESA ARNAUD my GRAND[D]AUGHTER, I LEAVE THE SUM OF $1000.00 To WARREN WALLS my BROTHER, I LEAVE THE SUM OF $5000.00 No other special gifts are left, any assets not directly disposed of in this Will shall be given to the surviving members in order of succession.[ 9 ] ³⁵⁵ On December 10, 2009, approximately two and one-half months after Joanne’s death, Steven, died.

Steven’s son, Bret, a minor, was Steven’s heir under his Last Will and Testament. On February 19, 2010, Walls, Joanne’s personal representative, filed a Petition for Instructions in the Orphan’s Court for Anne Arundel County. In the Petition, Walls requested that the Court “give instructions as to the meaning of the Last Will and Testament of Joanne Click dated October 25, 1999 in general” and to the following clause of the fifth paragraph: “No other special gifts are left, any assets not directly disposed of in this Will shall be given to the surviving members in order of succession.” In addition to requesting that the Court instruct as to the meaning of the fifth paragraph, Walls requested that the court issue instructions as to the distribution of Joanne’s real property, asking, in pertinent part, as follows: 10. The Will was prepared by [Joanne] with the use of a computer program that provided a form last will and testament.

The said Will does not contain a residuary clause. 11. [Joanne] died testate owning real property located at 1745 Tacoma Road, Edgewater, Anne Arundel County, Maryland. 12. STEVEN WILLIAM CLICK resided in the aforesaid real property with his mother, Joanne Click, for several years prior to her death. WHEREFORE, your Petitioner prays: ³⁵⁶ A. That this Court issue instructions as to the distribution of the real property of [Joanne.] On March 12, 2010, Walls filed an Amended Petition for Instructions and for Declaratory Judgment in the Circuit Court for Anne Arundel County. 10 The amended petition added the following defendants: the Estate of Steven Click, Amy Hardesty as parent and next friend of Bret, and Smith, Maberry, and Talley. The amended petition adopted and incorporated the original petition, and added a count for declaratory judgment, in which Walls alleged the following: 4.

That the language contained in the Last Will and Testament of Joanne Click may be subject to more than one interpretation regarding the distribution of the testatrix’s property. 5. That the Defendants are Interested Persons of The Estate of Joanne Click. 6. That the Defendant, The Estate of Steven Click, has taken a position as to how the testatrix’s property must be distributed pursuant to The Last Will and Testament of Joanne Click, while Defendants, Elizabeth A. Click Smith, Rebecca J. Click Maberry and Teresa Arnauld Talley, have made known a second conflicting position regarding the distribution of the same property. On April 21, 2010, the Estate of Steven Click filed an answer.

On April 30, 2010, Bret filed an answer. In their answers, as to the third paragraph of the Will, the Estate of Steven Click and Bret stated: “The Will of Joanne Click instructs that property not otherwise disposed of in the Will shall be distributed to Steven Click. The ‘property not otherwise disposed of includes Joanne Click’s real property. As such, the real property subject to the above[-]captioned action should be distributed to [] Steven Click.” As to the fifth paragraph of the Will, they stated: “Joanne Click had two children, Frank Click, Jr. and Steven Click.

Frank Click, Jr. ³⁵⁷ predeceased his mother, Joanne Click. The only ‘surviving member[ ] in order of succession’ is Steven Click. Assuming another party to this action contends that Joanne Click’s real property is ‘not disposed of in the Will,’ this Court should instruct that the real property be distributed to Steven Click.” Both requested that the circuit court order distribution of Joanne’s real property to Steven. On June 17, 2010, Smith, Maberry, and Talley filed an answer to the amended petition, arguing that “the intent of the Will ... is to distribute the rest and residue of this estate equally among the legatees identified therein.” On September 15, 2010, appellants filed a Motion for Summary Judgment and Request for Hearing.

In the motion, appellants requested that the third paragraph of the Will be read as instructing distribution of Joanne’s real property to Steven and that the fifth paragraph be read as instructing that “Joanne Click’s residuary estate shall be distributed to Joanne Click’s surviving members in order of succession which is declared to mean Joanne Click’s only surviving child at the time of her passing, Steven Click.” In the memorandum in support of the motion, appellants argued that Joanne intended to leave her real property to Steven because Joanne “was appreciative of the efforts that ... Steven [ ] put toward Joanne Click and her needs[,]” whereas Joanne’s relationships with Smith, Maberry, and Talley were “strained” and “caused her great discontent.” Appellants argued that Joanne’s intent was expressed within the Will and, alternatively, by the surrounding circumstances at the time the Will was made. Appellants attached affidavits from various of Joanne’s friends, in which each affiant attested that Joanne intended to leave her house to Steven, and most attested that Joanne’s relationships with Smith, Maberry, and Talley were strained and damaged. On October 4, 2010, Smith, Maberry, and Talley filed an answer to appellant’s motion for summary judgment and filed their own motion for summary judgment.

In the answer and motion, Smith, Maberry, and Talley argued as follows: ³⁵⁸ 3. This cases presents a strict legal question—to determine the meaning of the will from its four corners. 4. There is no ambiguity in the will, and Defendants Elizabeth Smith, Teresa Talley and Rebecca Maberry are entitled to a declaration of the construction of the will as a matter of law. WHEREFORE, Defendants Smith, Talley and Maberry pray this Honorable Court will declare that the meaning of the Will which is the subject of this litigation is to distribute the rest and residue of this estate equally among the legatees identified therein.

On October 22, 2010, appellants filed a reply to Smith, Maberry, and Talley’s answer and an opposition to Smith, Maberry, and Talley’s motion for summary judgment. Appellants argued that Maryland law “dictates that Joanne Click’s will must be construed to reflect her intent.” Appellants contended that the construction of the Will urged by Smith, Maberry, and Talley ignored Joanne’s “intent as expressed in the four corners of the Will and even further ignore[d] the surrounding circumstances that existed at the time that Joanne Click executed her Will.” On October 29, 2010, appellants filed a supplement to their motion for summary judgment. The supplement incorporated the 1988 Will. Appellants argued that “[considering the ‘surrounding circumstances,’ the two Wills taken together indicate that Joanne Click intended that her granddaughters, Smith, Talley and Maberry, were only ever to receive a specific bequest, that is, $1,000.” On November 29, 2010, the circuit court held a motions hearing.

During the hearing, the following exchange occurred between the circuit court and appellants’ counsel: THE COURT: But ... if the words that the testator used were, you know, crystal clear and sufficient at the same time the—or at some subsequent time the testator said something else extrinsic, would we not be bound to basically apply the words if they’re not ambiguous? ³⁵⁹ [APPELLANTS’ COUNSEL]: If they’re not ambiguous. In this case, [Walls] has filed the petition asking the Court to construe the will suggesting that the will can be—is either ambiguous or can be interpreted in more than one way. So we are stuck in the category of the words in the will being ambiguous. THE COURT: Surviving, members, succession, those are all legal terms. [APPELLANTS’COUNSEL]: Legal terms.

Yes. THE COURT: So why—why would I need extrinsic evidence in order to interpret the meaning of those legal terms? [APPELLANTS’ COUNSEL]: If the Court determines that there’s no ambiguity in the will at all, then we’re not turning to extrinsic evidence. However, in this situation we have a petitioner [Walls] that has indicated that the will can be interpreted in more than one way, meaning we have a will that is ambiguous. So we have to figure out what the testator intended.

In contrast, counsel for Smith, Maberry, and Talley argued as follows: Let me start by saying that just because the Petitioner [Walls] alleged ambiguity does not mean that one exists. Paragraph 3 is not the least little bit ambiguous.... As far as paragraph 5, again, not ambiguous. At the end of the hearing, the circuit court advised counsel, as follows: I am going to provide a written decision, but I’ll orally advise counsel that I don’t think that the word “such”—the phrase “such property” is ambiguous in the earlier paragraph, I guess, Paragraph 3 of the '99 will.

I think it—it clearly modifies or refers to the prior recitation of personal property and that means, to me, then, that the only remaining question of interpretation of the will is what does “surviving members in order of succession” mean. And that is very much a legal phrase. It’s not a—a phrase of plain English usage in the community. ³⁶⁰ And, therefore, the Court thinks that its interpretation is very much a matter of law and not a matter of gathering the lay person’s intention from ambiguous phrases in the—in the will. So the Court will, based on the summary judgment, provide the declaratory relief as to the legal meaning of the term “surviving members in order of succession,” and I’ll provide that opinion within a week.

On November 30, 2010, the circuit court issued an Order granting appellants’ summary judgment in part and declaratory judgment, with instructions as to Joanne’s real property. The Order stated, in pertinent part, as follows: ORDERED, that the Motion for Summary Judgment be and is hereby GRANTED in part; and the interested persons’ motion is granted in full as follows: ORDERED AND DECREED, that the Last Will and Testament of Joanne Click is hereby declared to be read as follows: A. Paragraph THIRD instructs that Joanne Click’s specified personal property is to be distributed to Joanne Click’s son, Steven Click. B. Paragraph FIFTH instructs that Bret Click, Elizabeth Tennant, Rebecca Maberry and Theresa Arnaud are to receive a specific bequest of $1,000.00 each. C. Paragraph FIFTH instructs that Warren Walls is to receive a specific bequest of $5,000.00.

D. Paragraph FIFTH includes a residuary clause by stating “any assets not directly disposed of in this Will”. Paragraph FIFTH instructs that Joanne Click’s residuary estate including real property shall be distributed to Joanne Click’s surviving members in order of succession which is hereby declared to mean her surviving issue per stirpes[.] On November 30, 2010, the circuit court issued a written Opinion as to the motions for summary judgment. The Opinion stated, in pertinent part: ³⁶¹ Steven Click had resided with his mother for a number of years prior to her death and, in a prior will, had been bequeathed the sole ownership of her home. In his motion for summary judgment, Steven Click contends that his mother’s 1999 will was ambiguous and, based on circumstantial evidence, that the ambiguity should be resolved with the inference that she intended again to bequeath him sole ownership of the real estate.

The other interested parties disagree. Steven Click’s estate initially contends, as to the THIRD paragraph of the Will, that “such property” is ambiguous and should be construed to have the word “such” refer to real estate, rather than personal property. Alternately, they contend that the word “such” might be construed to mean “all,” so as to distribute the entire residuary estate in the third paragraph to Steven Click. The undersigned finds that this ambiguity argument is mistaken.

No citation of legal authority is required for this court to find that “such property” grammatically refers to the property previously mentioned in the same paragraph— that is, personal only. Moreover, in oral argument, Steven Click’s counsel acknowledged that the last sentence in the FIFTH paragraph may be understood to constitute the residuary clause, disposing of real estate. Likewise, the EIGHTH paragraph acknowledges the existence of the residuary clause. The second ambiguity urged by Steven Click’s estate states the term “any assets not directly disposed of in this Will shall be given to the surviving members in order of succession.” (Emphasis added.) Steven Click’s argument for the ambiguity of the emphasized phrase is based completely on evidence extrinsic to the Will.

However, counsel has acknowledged in oral argument that such extrinsic evidence would not be admissible if the Will’s terms are not ambiguous. ³⁶² This court finds that the term “surviving members in order of succession” is not ambiguous, even though it may not be common English currently in plain usage. Steven Click’s estate contends that the term “surviving members” should be construed to mean that the entire estate would go to Steven Click because he was the descendant’s “one and only child.” This, however, disregards the long-standing Maryland rule as to construction of wills and other documents that the court—must give full effect to all “technical words [in the document] unless from subsequent inconsistent words it is made perfectly clear that the testator meant otherwise.” Clarke v. Smith, 49 Md. 106, at 117 (1878). Examining the will as a whole, this court finds that the testator’s use of the phrase “surviving members”—in the plural—does not refer to a singular family member—that is, Steven Click. Maryland cases make clear that a will’s reference to a group of family “members” should be construed as per stirpes, rather than per capita unless a contrary intention is expressed.

Similarly, Maryland cases have found that the use of the term “in succession” implies inheritance per stirpes and not per capita. Here, where the testator used both terms together, this court finds that it is unmistakable that she intended per stirpes distribution to her children or their survivors per stirpes. See Clarke v. Clarke, 222 Md. 158 , at 157-158 [ 159 A.2d 362 ] (1960) which held, after an extensive review of precedents back to the English common law, that Maryland should follow the “Restatement, Property, Future Interests, Sec. 303”, stating: “When a conveyance creates a class gift by a limitation in favor of a group described as the ‘issue of B,’ or as the ‘descendants of B,’ * * * then, unless a contrary intent * * * is found * * * distribution is made to such members of the class as would take, and in such shares as they would receive, under the applicable law of intestate succession if B had died intestate.... ” Similarly, Maryland’s Court of Appeals in Weller v. Sokol, 271 Md. 420, at 427 [ 318 A.2d 193 ] (1974) held “in the absence of an expression of contrary intent, the direction that a distribution be made per stirpes will ³⁶³ result in the distribution which would have been made under the statute of distribution, was amplified in Sollers v. Mercantile-Safe Deposit & Trust Co., [ 262 Md. 606 , 278 A.2d 581 (1971) ] at 610-11, to the end that descendants will take in the manner provided by the statute of descent and distribution in effect at the death of the testator, just as if the person identified as the stock had died intestate at the time of distribution.... ” The Sokol court also found that a testator’s use of the term “succession” with “divided ... among the issue and descendants of such of my children as may have died leaving lawful issue him or her surviving per stirpes ... just as if a child had died intestate on the date of termination owning a share of the corpus and leaving descendants surviving.” Sokol at 432 [ 318 A.2d 193 ], For all of these reasons, the court will grant Steven Click’s motion for summary judgment in part—that is, it will provide the declaratory relief construing the will. But the court will also deny it in part—that is, the court does not adopt the construction urged by Steven Click’s estate.

The court will grant the interested persons’ motion for summary judgment. (Footnote omitted) (alterations, emphasis, and omissions in original). On December 29, 2010, appellants noted an appeal. DISCUSSION The parties’ contentions are as they were in the circuit court.

We need not reiterate them. 11 (1) Standard of Review In reviewing a grant of summary judgment under Md. Rule 2—501(f), we review the circuit court’s decision to grant a ³⁶⁴ motion for summary judgment de novo. Bonfiglio v. Fitzgerald, 197 Md.App. 327, 337 , 13 A.3d 812 (2011) (citations omitted). Our review is “two-fold,” in that we determine first whether there is a genuine dispute of material fact, and second, if there is no genuine dispute of material fact, whether the party is entitled to judgment as a matter of law. Id.

(citations omitted). “In order for there to be disputed facts sufficient for us to hold that granting summary judgment in appellee’s favor was error, there must be evidence on which the jury could reasonably find for appellant.” Benway v. Md. Port Admin., 191 Md.App. 22, 46 , 989 A.2d 1239 (2010) (citation omitted). In reviewing the facts, “we construe the facts properly before the court and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party[.]” Id. (citation omitted). In Catalyst Health Solutions, Inc. v. Magill, 414 Md. 457, 471-72 , 995 A.2d 960 (2010), the Court of Appeals stated: The standard of review for a declaratory judgment entered as a result of the grant of a motion for summary judgment is whether that declaration was correct as a matter of law.

We have held that [w]hile it is permissible for trial courts to resolve matters of law by summary judgment in declaratory judgment actions, the court must, in a separate document and in writing, define the rights and obligations of the parties or the status of the thing in controversy. This requirement is applicable even if the action is not decided in favor of the party seeking the declaratory judgment. (Citations and internal quotation marks omitted). (2) Applicable Law (a) Construing Wills Generally The Court of Appeals has discussed the process for construing a will in numerous cases. “When construing a will, ³⁶⁵ the ‘paramount concern of the court is to ascertain and effectuate the testator’s expressed intent.’ ” Friedman v. Hannan, 412 Md. 328, 339 , 987 A.2d 60 (2010) (quoting Pfeufer v. Cyphers, 397 Md. 643, 649 , 919 A.2d 641 (2007)). “In other words, the search is not for the testator’s ‘presumed [intention] but for his expressed intention.’ ” Pfeufer, 397 Md. at 649 , 919 A.2d 641 (citations omitted) (alterations and emphasis in original).

A court, in construing a will, “is governed, not by what the Court may think the testator wanted to say, but by what his words actually meant, because his words were designed to express his intention.” Hebden v. Keim, 196 Md. 45, 51 , 75 A.2d 126 (1950) (citations omitted). In order to ascertain a testator’s expressed intent, “that intent is gathered from the four corners of the will, with the words of the will given their plain meaning and import.” Friedman, 412 Md. at 339-40 , 987 A.2d 60 (citation and internal quotation marks omitted). Words of legal significance, though, “will be construed in that sense unless the will clearly indicates otherwise.” Pfeufer, 397 Md. at 649 , 919 A.2d 641 (quoting Emmert v. Hearn, 309 Md. 19, 23 , 522 A.2d 377 (1987)) (internal quotation marks omitted); see also Clarke v. Smith, 49 Md. 106, 117 (1878) (“It is a well settled rule of construction, that technical words of limitation used in a devise, such as heirs generally, or heirs of the body, shall be allowed their legal effect, unless from subsequent inconsistent words it is made perfectly plain that the testator meant otherwise.” (Emphasis in original)). If a layperson—rather than an attorney—draws up the will, “the language used may be given the meaning it would commonly have to a person in his situation[.]” Friedman, 412 Md. at 340 , 987 A.2d 60 (citation and internal quotation marks omitted) (alteration in original); see also Friedel v. Blechman, 250 Md. 270, 290 , 242 A.2d 103 (1968) (“[T]he rule ... is that a testatrix who properly executes a will, who is competent and who is shown to have read the will is presumed to have understood it.”); Hebden, 196 Md. at 51 , 75 A.2d 126 (“The expressions in a will must be interpreted in ³⁶⁶ their ordinary and grammatical sense; and if the language is plain and unambiguous, the Court cannot give it a different meaning in order to give effect to a mere conjecture as to the testator’s intention.”).

Regardless, “whether the words of the will are given their ordinary or legal meaning, ‘[ejxtrinsic evidence should not be admitted to show that the testator meant something different from what his language im-ports____What he meant to say must be gathered from what he did say.’ ” Emmerb, 309 Md. at 23 , 522 A.2d 377 (quoting Fersinger v. Martin, 183 Md. 135, 138 , 36 A.2d 716 (1944)) (alterations and omissions in original). It is well-settled in Maryland that extrinsic evidence of the circumstances surrounding execution of a will is admissible in construing a will only if the will contains a latent ambiguity. The Court of Appeals discussed the use of extrinsic evidence as follows: Ordinarily, extrinsic evidence is not admissible to prove the testator’s intent unless there is a latent ambiguity. See Monmonier v. Monmonier, 258 Md. 387, 390 , 266 A.2d 17, 19 (1970).

Yet, when ascertaining that intent, the court may consider “the situation of the testator and his relations with the parties to whom he has devised or bequeathed his property[.j” Robinson v. Mercantile Trust Co. of Baltimore, 180 Md. 336, 339 , 24 A.2d 299, 300 (1942). In that regard, the will must be “read in the light of the surrounding circumstances existing at the time of its execution.” Hebden v. Keim, 196 Md. 45, 48 , 75 A.2d 126, 128 (1950). Friedman, 412 Md. at 340 , 987 A.2d 60 (alteration in original); see also Frick v. Frick, 82 Md. 218, 226 , 33 A. 462 (1895) (“ ‘That the Court may put itself in the place of the testator by looking into the state of his property and the circumstances by which he was surrounded at the time of making his will is true, but this is done only to explain ambiguities arising out of extrinsic circumstances, and not to show a different intention from that the will discloses.’ ” (citation omitted)); Hammond v. Hammond, 55 Md. 575, 581 (1881) (“ ‘Extrinsic evidence is admissible only when the will is plain and clear upon its face, ³⁶⁷ and becomes doubtful when applied to the subject-matter.’ ” (citation omitted)). The Court of Appeals has defined a “latent ambiguity” within the context of a will as follows: Such an ambiguity occurs when “the language of the will is plain and single, yet is found to apply equally to two or more subjects or objects.” Extrinsic evidence is generally admissible to resolve a latent ambiguity.

Indeed a latent ambiguity is “not discoverable until extrinsic evidence is introduced to identify the beneficiaries or the property disposed of by will, when it is developed by such evidence, either that the description in the will is defective, or that is applies equally to two or more persons or things.” Emmert, 309 Md. at 26-27 , 522 A.2d 377 (citations and footnote omitted). A “patent ambiguity,” on the other hand, “is one that is apparent on the face of the will itself, as, for example, when different clauses of a will dispose of the same plot of land