Lowenthal v. Rome

LISS, Judge. The fundamental issues in this case are whether certain documents should have been admitted to probate by the Superior Court for Baltimore City (now the Circuit Court for Baltimore City) and how the documents should have been construed. As we consider these issues, we shall also review a number of subsidiary issues, as well as a motion to dismiss ⁷³² one of the two appeals involved. Before explaining why we affirm the judgment below, we shall sketch the relevant facts and the major contentions of the parties.

Facts Jean Arthur Lowenthal died in London, England on June 19, 1977. He was independently wealthy, having owned at the time of his death over $600,000 face amount in Rite-Aid Corporation debentures, as well as cash, securities, other investments, and an estate in Spain called the “Finca”. Most of the assets (other than the Spanish real estate) were held by the Mercantile Safe-Deposit and Trust Company in Baltimore. Although Jean Lowenthal was an American citizen domiciled in Maryland, for most of his adult life he resided abroad, spending much of his time in Spain.

He had been married three times. His first marriage, to an American citizen in Baltimore, ended in divorce. His second marriage was to the nominal appellant Pilar Lowenthal. Jean Lowenthal had two children by Pilar, appellants Jean Arthur Lowenthal, Jr., and Maria Loretta Lowenthal, both of whom are American citizens residing in Spain.

Jean’s marriage to Pilar was annulled by Spain’s highest court. The third marriage was to a Swedish countess, who predeceased Jean. Her child, Rolf Lindner, is Jean’s stepson and another appellant. At the time of Jean’s death, his other immediate relatives were his brother, Albert Lowenthal, with whom he had remained in regular contact, and a sister whom he had not seen for many years.

On October 20, 1975, after the death of his third wife, Jean Lowenthal, then in Spain, purportedly executed a will in Spanish. According to the terms of this document, Lowenthal’s assets in Spain were left to appellant Lindner. The remainder of the assets was left to Albert Lowenthal. The next month, Jean Lowenthal traveled to the United States.

There, on December 4, 1975, he executed an Ameri ⁷³³ can will which also left the Spanish estate to Lindner, and all other property to Albert. Three months later, back in Spain, Lowenthal on March 3, 1976, executed another Spanish document which left the Spanish estate to Albert Lowenthal, but which made no reference to assets in the United States. On July 20, 1977, a petition for administrative probate of the will of Jean Arthur Lowenthal (the American will) was filed with the Register of Wills for Baltimore City by Albert Lowenthal, now deceased, and Morton E. Rome, decedent’s personal representative and appellee herein. Attached to the petition for administrative probate were the American will of December 4, 1975, the Spanish will of March 3, 1976, and a translation of that Spanish will.

The petition for administrative probate offered only the American will for probate as the last will of the decedent. The petition for administrative probate then alleged: . . . your Petitioners have been advised that the Decedent may have executed a later document, purporting to be a “Will” in Malaga, Spain, . . . This purported “Will”, in any event, if it exists, can be construed only as a Codicil to the attached Will, because the sole change is that the Decedent revoked a legacy to a son of a former deceased wife. ... The petition for administrative probate requested appointment of the petitioners as personal representatives and assured the Register of Wills: ... in such case, they will make every effort to ascertain all the circumstances with reference to the existence of the mentioned purported “Will” executed in Malaga, Spain, and will be bound by it.

On the same day, the Register of Wills admitted the American will to administrative probate and the petitioners were appointed personal representatives. The Register of Wills did not docket the Spanish will of March 3, 1976. Sometime between September 1, 1977, and September 8, 1977, the Register of Wills admitted the Spanish will of ⁷³⁴ March 3, 1976, to administrative probate and recorded it. At that time the American will, previously recorded, was marked “RECORDED IN ERROR — LETTERS OF ADMINISTRATION NOT GRANTED” with a cross-reference to the latest recording.

During a later conference with the Orphans’ Court and the personal representatives, counsel for the Lowenthal children advised that there was material mistake and irregularity in the original administrative probate proceeding and contended that it was too late to probate the American will. The personal representative, in response, requested that the Orphans’ Court correct “any clerical errors in the administrative probate,” in which request Lindner joined. Sometime after October, 1979, the records of the Register of Wills were changed and mutilated to indicate that it was the prior American will that had been admitted to administrative probate. On January 20, 1978, appellant Pilar Lowenthal, on her own behalf and on behalf of her two children, filed a petition for judicial probate, caveat and other relief, in which she sought to have judicially probated the Spanish will dated March 3, 1976.

The petition for judicial probate alleged, among other contentions, that the original petition for administrative probate was materially incomplete and incorrect, and that there was material mistake and substantial irregularity in that proceeding. Neither the surviving personal representative nor Lindner moved to set aside the prior administrative probate or to substitute judicial probate of the American will. In their answer to the petition for judicial probate and other relief with respect to the Spanish will, the personal representative and Lindner argued that the administrative probate of the American will should remain in full force and effect. The Orphans’ Court dismissed Pilar Lowenthal’s petition for judicial probate, caveat and other relief on October 20, ⁷³⁵ 1978.

She entered an appeal to the Superior Court of Baltimore City on November 14, 1978, and on September 25, 1979, the appeal was dismissed on the basis of the failure of appellant Pilar Lowenthal to transmit a transcript of the Orphans’ Court proceedings. The appellant filed an appeal to this Court and we reversed and remanded the case to the Superior Court for a trial de novo of the petition for judicial probate. Lowenthal v. Rome, 45 Md.App. 495 , 413 A.2d 1360 (1980). The hearing de novo was held and by order dated October 22, 1982, the trial judge admitted to judicial probate both the American will of December 4, 1975, and the Spanish will of March 3, 1976.

The trial judge concluded that pursuant to the Courts and Judicial Proceedings Article, Section 12-502, he had the power to consider the American will, the Spanish will, or both, and to revoke, modify or confirm any prior administrative or judicial probate action taken regarding the American will, pursuant to Maryland Code (1974) Estates & Trusts Article, Section 5-404(a). The trial judge then ruled that: [T]he March, 1976 Spanish will is merely a codicil to the December, 1975 will, and the two documents can easily be read together. The codicil merely disposes of the Spanish property to a person other than the individual named in the American will. * * * * * * The effect of reading the two wills together is to leave all of decedent’s assets — Spanish and American — to his brother, Albert Lowenthal. The evidence indicates that Albert, who had remained close in family relationship with the Decedent, had received a letter from the Decedent, which is, in this Court’s opinion, the single most important exhibit in evidence pertaining to the Decedent’s intent.

The intent of the letter was clear. The Decedent had revised his American will and had given all of the Spanish assets to Albert. The Decedent did not intend to revoke all prior wills outside of Spain by making the “Spanish ⁷³⁶ Document,” but intended to revise all prior wills outside of Spain and to dispose of the Spanish assets in accordance with his wishes. Therefore, this Court holds that the “Spanish Document” dated March 3,1976, and the American Will dated December, 1975 are compatible and can be read together.

In accordance with the Decedent’s intentions, the American Will should dispose of American assets, and the Spanish Will should dispose of the Spanish assets. For clarification, we reiterate that the result reached by the trial judge in considering both of the wills together was to pass the decedent’s entire estate to his brother, Albert Lowenthal. Under the terms of the American will, read alone, the decedent’s American property would go to his brother while his Spanish estate would pass to Rolf Lindner, the son of the decedent’s third wife. In neither instance would any of the estate pass to the decedent’s children.

If, however, the Spanish will were probated alone, the decedent would be considered intestate as to his estate outside of Spain, since the Spanish will purports to revoke all prior wills and omits any and all reference to property other than the property in Spain. Only under these circumstances would the children benefit, by entitlement to a share of the decedent’s estate through the laws of intestate succession. Contentions Appellant Lindner asserts that the Spanish document of March 3, 1976, should not have been admitted to judicial probate because it was attested neither in accordance with the law of Spain nor of Maryland. In his view, therefore, the Spanish estate should pass to him under the December 1975 American will.

Appellants Lowenthal have no quarrel with probate of the 1976 Spanish document. They say, however, that the December 1975 American will should not have been admitted to probate because it (and the October 1975 Spanish will) were revoked by the 1976 document. In their opinion, Jean ⁷³⁷ Lowenthal died partially intestate (as to the American assets) and they, as his surviving children should share in them. 1 Appellee Rome supports the trial court’s actions in probating both the 1975 American Will and the 1976 Spanish document, and in construing the latter as a codicil to the former. Under this interpretation, Albert Lowenthal (or his estate) takes all.

Appellee Rome also argues that the Lowenthal appeal should be dismissed. We shall turn to this contention first. Motion to Dismiss As we noted early on, the marriage of Jean and Pilar Lowenthal was annulled in Spain. In an earlier case of Lowenthal v. Rome, 294 Md. 277 , 449 A.2d 411 (1982), cert. denied,-U.S.-, 103 S.Ct. 1253 , 75 L.Ed.2d 481 (1983), the Court of Appeals held that Pilar was not Jean’s surviving widow.

Thus, she has no interest in the case, and no standing to appeal. She is only a nominal appellant. This, of course, does not deprive her children, Jean, Jr., and Maria Laretta, of standing. But the Lowenthal notice of appeal referred only to Pilar, and not to the children.

Rome’s contention is based on the fact that although the children were designated as parties throughout the case by the use of the phrase “et al.” in all previous pleadings, the phrase, while included in the title of the notice of appeal to this Court, was apparently inadvertently omitted from the body of the order for appeal. We conclude that the case of Hartz v. Hartz, 248 Md. 47 , 234 A.2d 865 (1967), is dispositive of this contention. In Hartz , the appellant had failed to note in the order of appeal that the appellant was appealing in his representative capacity and that the appellee had moved to dismiss the appeal from a finding that an antenup ⁷³⁸ tial agreement was invalid on the ground above stated. The Court of Appeals, in denying the motion, stated: We think that if, as here, the record as a whole makes plain the representative capacity of the party appealing even though he does so without designation, [citations omitted] and the lower court and the other side of the case are adequately advised that a timely appeal is taken, the notice of appeal is effective. [ 248 Md. at 50 n. 1, 234 A.2d 865 ].

The record in this case makes it plain that Pilar Lowenthal’s children were active parties in the case from the very beginning. At the time the appeal was filed Pilar and the children all had standing to appeal. The fact that Pilar was effectively removed from the case by the refusal of the Supreme Court to grant certiorari on February 28, 1983, did not affect the children’s continuing standing as parties to the proceedings. Appellee had more than adequate notice that a timely appeal had been filed and who the parties bringing the appeal were.

The authorities cited by the appellee in support of his motion to dismiss involved cases in which there was no substantive basis for the appeal, i.e., there was no party with standing. See Webster v. Larmore, 270 Md. 351 , 311 A.2d 405 (1973); Stuart v. Foutz, 185 Md. 401 , 45 A.2d 98 (1945). In Attorney General v. Anne Arundel County School Bus Contractors Assn., Inc., 286 Md. 324 , 407 A.2d 749 (1979), also cited by the appellee, the issue upon which the appeal was based had become moot. The issues in the instant case were not moot as far as the children’s interest was concerned.

We conclude that the Lowenthal children are proper parties to the appeal, and deny the motion to dismiss. The Testamentary Documents and Their Construction 1. By this appeal, the appellants challenge the trial court’s conclusion that the American will was at issue in the ⁷³⁹ judicial probate proceedings, since no application for judicial probate of the American will had ever been filed. In concluding that the American will was properly before him, the trial judge stated: The evidence also shows the procedural chronology of this case.

A Petition for [administrative] Probate with the original American will and a copy of the Spanish will were filed. A Petition for Judicial Probate [of the Spanish will], Caveat and Other Relief was filed by Pilar Lowenthal, et al. An answer was filed on the Personal Representative to the Judicial Probate Petition, which, among other things asserted the validity for probate of the December 4, 1975 [American] will. The American will was admitted to administrative probate by the Register of Wills Office. Recording errors as to various docket entries took place in the Register of Wills Office in the will’s dockets.

An Order of the Orphans’ Court of Baltimore City was issued denying the Petition for Judicial Probate. An appeal was filed by Pilar Lowenthal, et al. on December 13, 1979. Even if this Court found that the American will had not been probated, the answer of the Personal Representative clearly places both wills at issue in the judicial probate proceedings . . . the probate of the [American] will filed by Mr. Rome remained in effect. Appellants seek the exclusion of the American will from the judicial probate proceeding because no one had sought judicial probate pursuant to Maryland Code (1974) Sections 5-401 through 5-407 of the Estates and Trusts Article.

As the trial judge pointed out, “the answer of the personal representative clearly placed both wills at issue in the judicial probate proceedings.” All of the parties were aware of the existence of both the Spanish and the American wills and the children filed a copy of the American will with their petition for judicial probate of the Spanish will. They further requested that the American will be found to be in full force and effect and that the Spanish will, if found to be valid, be construed as a revision to the American will. ⁷⁴⁰ Additionally, Rolf Lindner, in his answer to the petition for judicial probate, placed both the American will and the Spanish will at issue. The trial court had the powers, pursuant to Section 5-404(a) of the Estates and Trusts Article, to revoke, modify or confirm any prior administrative or judicial probate action with respect to both the American and Spanish will or either of them once it concluded that both wills were at issue before the court. Appellants’ principal complaint is that no formal notice was ever given that the American will was offered for judicial probate.

The notice requirements were “designed to give as full notice personally and by publication as can reasonably be accomplished for the protection of all persons having an interest in the proceedings.” See Comment to former Article 93, Section 5-403. The trial court concluded that under the facts and circumstances of this case, the American will was before it to be considered in concert with the Spanish will in which formal notice of application for judicial probate had been given. There can be no doubt that over the long and drawn out controversy concerning the two wills, all of the parties in interest had actual knowledge of the trial court’s intention to consider the wills together. Judicial probate is a plenary proceeding in which the court “shall adjudicate the issues raised.” Estates and Trusts Article, Section 5-404(a).

As the Court of Appeals said in Kerby v. Peters, 172 Md. 1, 9 , 190 A. 511 (1937), “[ujnder any definition of the term, a plenary proceeding implies a complaint, a request for some definite relief, and allegations of fact sufficient to justify the granting of that relief.” In the case at bar, the appellee requested definite relief concerning the American will and issues of fact concerning that will were placed before the court by the petition for judicial probate and the answers thereto as permitted by Section 2-105 of the Estates and Trusts Article. We find no abuse of discretion by the trial judge in considering the American and Spanish wills together. ⁷⁴¹ 2. If the Spanish will is valid either as the last will and testament of the decedent or as a codicil to the American will, then the decedent’s property in Spain will pass to his brother’s estate rather than to appellant Rolf Lindner, as provided in the American will. The trial judge ruled simply that the Spanish document, which was executed in Spain, was validly executed under Section 4-104 of the Estates and Trusts Article.

Section 4-104 provides that: A will executed outside this state is properly executed if it is: (1) In writing; (2) Signed by the testator; and (3) Executed in conformity with the provisions of § 4-102, or the law of the domicile of the testator, or the place where the will is executed. Appellant Lindner contends that the Spanish will should not have been admitted to judicial probate because it did not comply with the requirements of Section 4-104(3), which requires that the execution of the will conform to the requirement of Section 4-102 or with the law of the country in which the document was executed, i.e., Spain. Section 4-102 mandates that a will shall be: (1) in writing, (2) signed by the testator, or by some other person for him, in his presence and by his express direction, and (3) attested and signed by two or more credible witnesses in the presence of the testator. It is conceded that the Spanish will was “in writing” and signed by the testator but there is a dispute as to whether the will was attested and signed by two or more credible witnesses in the presence of the testator.

Section 4-104, however, provides an escape clause from the formal requirements of Section 4-102. It provides that a will executed outside of Maryland need not comply with Section 4-102 if it is executed in accordance with the law of the place of execution. In this case, that law is found in the Spanish Civil Code adopted in 1973. The ⁷⁴² Spanish will is characterized as an “open” will subject to all of the provisions of the Spanish Civil Code.

Article 679 of the Spanish Civil Code defines an open will as one in which the testator expresses his last will in the presence of the persons who must authenticate the act, they being informed of its provisions. Article 681 lists those persons who may not be witnesses to a will. Article 681, Section 4, in conjunction with Article 683, disqualifies any person from acting as a witness who does not understand the language of the testator at the time of the execution of the will. Article 694 requires that an open will shall be executed before a notary qualified to act at the place of its execution and three competent witnesses who see and understand the testator, one of whom at least must know how, and be able to write.

As provided in Article 699, all of the formalities mentioned in the Spanish Civil Code must take place in a single act and no interruptions shall be allowed except such as may be caused by some trifling occurrence. The notary is required pursuant to this section to state at the end of the will that all formalities have been complied with and that he is acquainted with the testator or with the witnesses of identification. Section 687 provides that any will that is not executed with the formalities set forth in the Spanish Civil Code shall be void. The Spanish will is signed by the notary and three witnesses.

The notary is considered to be an attesting witness within the meaning of Section 4-102 of the Estates and Trusts Article. The Spanish will includes a detailed attestation clause which raises a prima facie presumption that the will was executed in accordance with the Spanish law. Lindner’s sole complaint concerning the Spanish will is that it was not properly attested due to an alleged language barrier. The Court of Appeals, in Van Meter v. Van Meter, 183 Md. 614 , 39 A.2d 752 (1944), stated the prima facie presumption which arises from the inclusion of an attestation clause in a will: ⁷⁴³ The advantage of an attestation clause is found in its evidential weight in showing that the will was properly executed.

The rule is well established that an attestation clause reciting facts necessary for the valid execution of a will is prima facie evidence of the due execution of the will, if it bears the genuine signatures of the testator and subscribing witnesses. [Citations omitted]. At trial in the instant case, testimony was presented from three expert witnesses, one by deposition. Señor Guerrero testified that Spanish notaries are law trained career professionals whose duties include the preparation and solemnization of wills and the maintenance of permanent custody of last wills and testaments. Guerrero, himself a Spanish attorney at the bar in Malaga for some 31 years, was familiar with Señor Palacios, the notary who had drawn the Spanish will.

Over a period of 23 years, Guerrero had had approximately 350 wills finalized and solemnized by Señor Palacios, about half of which were on