Hall v. Coates

²⁵⁴ ADKINS, Judge. The Orphans’ Court for Calvert County, through administrative probate, appointed appellee, Willie Clagett Coates, personal representative of the Estate of Ernest Wesley Coates. The basis of the appointment was appellee’s assertion that he was the only surviving son of the decedent. Appellants, Verla Cannon Hall and others, petitioned for judicial probate, alleging that Ernest Coates had died testate and that appellee was not Ernest’s son.

In addition to judicial probate, they sought removal of appellee as personal representative and appointment of Verla Hall in that capacity. Appellee answered the petition. He denied that Ernest had left a will. He rejected the allegation that he was not Ernest’s son.

He joined appellants in their prayer for judicial probate, asking that the court find him to be Ernest’s legitimated son and name him as personal representative of Ernest’s estate. A hearing was had in the Orphans’ Court for Calvert County. There appellants argued that appellee was not the son of Ernest Wesley Coates. More specifically, they contended that appellee was, at best, an illegitimate son of the decedent, who had never been legitimated by virtue of the decedent’s open and notorious recognition of him as his child.

Estates and Trusts Article § l-208(b)(3). The orphans’ court saw the matter otherwise. By order dated June 26, 1984, it found that “Ernest Wesley Coates ... on many occasions ... openly acknowledged Willie Coates as his son____” It “determined” appellee “Willie Coates ... to be the son of Ernest Wesley Coates, deceased.” Appellants now attack this determination as being erroneous both in law and in fact. But before we reach those questions, we must address a threshold issue: that of the jurisdiction of this court to hear the appeal.

Jurisdiction Section 12-501 of the Courts and Judicial Proceedings Article permits “[a] party [to] appeal to the Court of Special ²⁵⁵ Appeals from a final judgment of an orphans’ court.” That language is the product of code revision and was adopted by Ch. 2, Acts of 1973 (1st special session). Chapter 2 also repealed various provisions of former Article 5 of the Code, including those that dealt with appeals from orphans’ court. Wall v. Heller, 61 Md.App. 314, 324 , 486 A.2d 764 (1984). The adoption of § 12-501 was not intended, however, to alter prior substantive law in this area.

See Wall, [61 Md.] at 324, 486 A.2d 764 . See also Ch. 2, Acts of 1973 (1st special session) Revisor’s Note at 369 (“[t]his section combined §§ 9 and 10 of Art. 5, giving effect to recent legislation regarding appellate jurisdiction. The only changes made are in style”). Specifically, § 12-601 carried forward, without substantive change, the earlier language of Article 5, § 9 (1968 Repl.Vol.) (repealed 1973).

Schlossberg v. Schlossberg, 275 Md. 600, 611-12 , 343 A.2d 234 (1975). That language has been interpreted as providing “that the appeals shall be taken only from final orders or decisions [of orphans’ courts], those actually settling the rights of the parties.” Collins v. Cambridge Maryland Hospital, Inc., 158 Md. 112, 116 , 148 A. 114 (1930) [emphasis supplied]; 1 P. Sykes, Maryland Practice: Probate Law and Practice § 244 (1956). P. Sykes, Contest of Wills § 154 (1941). In Langhirt v. Hicks, 153 Md. 31 , 137 A. 482 (1927), the issue before the orphans’ court was whether Hicks was estopped from caveating a will.

The orphans’ court passed an order to the effect that she was not estopped and was entitled to have issues transmitted to a court of law. The orphans’ court did not, however, direct that the issues be transmitted. The Court of Appeals dismissed Langhirt’s appeal from that order. It reasoned: “The order passed was nothing more, in effect, than the opinion of the [orphans’] court.” 153 Md. at 34 , 137 A. 482 .

That is precisely the situation we have before us. Section 5-404(a) of the Estates and Trusts Article provides that: A hearing for judicial probate is a plenary proceeding____ [The court] shall adjudicate the issues raised in ²⁵⁶ the hearing and shall determine the testamentary capacity of the decedent if he died testate. After the hearing the court shall appoint one or more personal representatives and shall, if appropriate, revoke, modify, or confirm action taken at the administrative ... probate. In the order here appealed, the Orphans’ Court for Calvert County did not make any determination of testamentary capacity.

It did not appoint a personal representative. It did not “revoke, modify, or confirm action taken at the administrative ... probate.” It did not grant or dismiss the petition for judicial probate. It merely made a finding of fact: that appellee was the son of Ernest Coates. This finding of fact was a critical one, but the “order” announcing it was no more than an opinion of the orphans’ court; it was not an appealable order.

Langhirt and Collins, supra. See also Schlossberg, 275 Md. at 615 , 348 A.2d 234 (appeal dismissed because there was no final “judicial determination that the administrative probate granted the appellant should be set aside”). That being the case, we have no jurisdiction over the appeal and must dismiss it. Nevertheless, as the Court of Appeals did in Schlossberg and Langhirt , we shall “set forth ‘what our decision would be if the case were properly before us’ since inevitably,” upon passage of an appropriate order by the orphans’ court, the issues presented by appellants would return to haunt us by way of a second appeal.

Schlossberg, 275 Md. at 616 , 343 A.2d 234 (quoting Langhirt, 153 Md. at 34 , 137 A. 482 ). Legitimation — Open and Notorious Recognition Section l-208(b) of the Estates and Trusts Article provides: A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of the father only if the father ²⁵⁷ (1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or (2) Has acknowledged himself, in writing, to be the father; or (3) Has openly and notoriously recognized the child to be his child; or (4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father. There is no contention in this case that appellee’s mother was ever married to Ernest Coates. Nor is there any attempt to invoke paragraph (1) or (2).

The only claim for legitimation is asserted under § 1 — 208(b)(3). As we have seen, the orphans’ court decided that the evidence produced before it demonstrated that the requirements of § l-208(b)(3) had been met. Before turning to the facts presented below, we shall consider the legal issue: What showing does § l-208(b)(3) require to meet its open and notorious recognition standard? Section l-208(b)(3)’s open and notorious recognition requirement, as a prerequisite to legitimation by a father, must be viewed in the context of the problem the statute and its predecessors attempted to address.

That problem was the status of a bastard at common law. At common law an illegitimate child was regarded as films nullius or filius populi and was deemed to be without parents or kindred. 1 P. Sykes, supra, § 162. As a consequence, the illegitimate could not inherit from its father. Note, Inheritance By And From Illegitimates Under Maryland Intestacy Law, 20 Md.L.Rev. 276 (1960). 1 This harsh policy was supported by arguments that it discouraged fraudulent claims and that it punished wrongdoing.

Id. at 279. As to the latter reason, at least, it came ²⁵⁸ to be recognized that the punishment was inflicted on the innocent child, not on the erring parents. Id. As a consequence, legislatures acted “to remove the taint and disabilities of bastardy from the unoffending children” on “the principle that it is unjust to punish the offspring for the crime of the parents.” Dilworth v. Dilworth, 134 Md. 589, 591 , 108 A. 165 (1919).

See also Hawbecker v. Hawbecker, 43 Md. 516, 520 (1876). An early Maryland step in this direction was the adoption of Ch. 45, § 7, Acts of 1786, re-enacted as Ch. 191, Laws of 1820, § 7. As later codified in Art. 46, § 6, this provided: If any man shall have a child by any woman whom he shall afterwards marry, such child ..., if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be hereby legitimated and capable in law to inherit and transmit in inheritance as if born in wedlock. A much more extensive step was taken in 1969.

By Chapter 3 of the Acts of that year, the General Assembly adopted “a comprehensive restatement of the testamentary laws of Maryland____” Second Report of the Governor’s Commission to Review and Revise The Testamentary Law of Maryland, i (1968). A part of that revision was enacted as Art. 93, § 1-208 — the provision that now appears, without substantive change, as § 1-208 of the Estates and Trusts Article. Former Art. 46, § 6, is included as § 1-208(b)(4). But § 1-208, as is apparent, went well beyond Art. 46, § 6.

As the Commission observed: This Section also spells out more fully the procedure for legitimation by acknowledgment without a subsequent marriage as is now required by Maryland law. It reflects the modern policy in the direction of mitigating the impact Of illegitimacy. Second Report at 9. See also Dawson v. Eversberg, 257 Md. 308, 314-15 , 262 A.2d 729 (1970).

It is, of course, that ²⁵⁹ “procedure for legitimation by acknowledgment without a subsequent marriage” with which we are now concerned. 2 The legislative history we have traced clearly manifests substantial abandonment of the notion that an illegitimate child should be punished because it occupies that status. On the other hand, the other basis for the harsh common-law policy — protection against fraudulent claims — has not been rejected totally. Each of the four legitimation conditions of § l-208(b) is a safeguard against false claims of parenthood because each requires some formal or informal action to establish paternity — in each case an action in which the purported father must be involved. With the exception of paragraph (1) of subsection (b) (judicial determination), the statute requires some form of acknowledgment by the father; an acknowledgment that can be proven, it would seem, from some source or sources other than the putative child.

Paragraph (3), upon which we focus, makes that apparent because it demands an open and notorious recognition of parenthood by the father. The question is just how open and notorious that recognition must be. As we address this question, we keep in mind that § l-208(b), as a legitimation statute, is to be liberally interpreted. Thomas v. Solis, supra, 263 Md. at 542, 283 A.2d 777 .

And see Penman v. Ayers, 221 Md. 154, 162 , 156 A.2d 638 (1959). The few reported Maryland decisions are of little help in determining the full extent of the requirement. Dilworth v. Dilworth, supra, for example, involved former Art. 46, § 6 and thus a requirement of acknowledgment of parenthood by the father. It appears that after the father and mother were married, the father acknowledged the child ²⁶⁰ was his and the child was “raised and treated in the family as their legitimate offspring.” 134 Md. at 590 , 108 A. 165 .

That was held to be sufficient. See also Holloway v. Safe Deposit & Trust Co., 151 Md. 321 , 134 A. 497 (1926) (raising child as member of family sufficient acknowledgment to legitimate under Art. 46, § 6), appeal dismissed, 274 U.S. 724 , 47 S.Ct. 762 , 71 L.Ed. 1329 (1927). These cases establish no more