Marine v. Johnson

Gilbert, C. J., delivered the opinion of the Court. This appeal asks whether a person who is appointed as a personal representative under a will admitted to judicial ³²⁸ probate may then maintain an action challenging the probate. Phrased more simplistically, may the defender of the will be its principal assailant? The facts giving rise to this question are uncomplicated.

Marianne Marine died on November 2,1979. Approximately one month later, a petition for judicial probate was filed in the Orphans’ Court for Cecil County. The petition was accompanied by a photocopy of a paper writing purported to be the last will and testament of the decedent. The writing was dated July 27, 1978.

Opposition to the petition was filed by the three children of Ms. Marine. 1 Johnson also presented a copy of a later dated paper writing that purported to be Ms. Marine’s will. That paper bore the date of June 28,1979. It was, however, admittedly invalid in that it lacked the requisite number of witnesses. The Orphans’ Court, after a hearing, admitted the photocopy of the July 27, 1978, will to probate and rejected the June 1979 writing.

Susan Marine, one of the children of the decedent and the person nominated by the decedent to be the representative under the July 1978 will, then qualified as the personal representative. Subsequent to her qualification, she individually 2 appealed the Orphans’ Court’s ruling admitting the July 1978 will to probate. The appeal to the Circuit Court for Cecil County 3 took the form of an attack on the admission to judicial probate of the photocopy of the 1978 will. The principal beneficiary under that will was named the defendant.

The appellant asserted that there was no clear and convincing evidence to rebut the presumption that the July 1978 will was revoked by virtue of the absence of the original copy of the will. The circuit court, after a trial de novo, affirmed the Orphans’ Court. This appeal ensued. ³²⁹ Interestingly, no one raised in the trial court the issue of the right of the appellant to carry water on both shoulders, i.e., to attack the very will that she was charged with administering. On appeal, however, that issue has been raised.

Ordinarily, this Court will not consider issues not raised and decided in the trial court. Md. Rule 1085. The rule does, however, permit us to consider original issues in appropriate circumstances. Charles J. Cirelli & Sons, Inc. v. Harford County Council, 26 Md. App. 491, 338 A.2d 400 (1975).

Exercising the authority conferred upon us by Md. Rule 1085, we shall consider the question inasmuch as it is dispositive of this appeal. Applicable provisions of Md. Estates & Trust Code Ann. provide: "§ 6-101. As a condition to his appointment, a personal representative shall file (a) a statement of acceptance of the duties of the office, (b) any required bond....” "§ 6-102. h. (1) The bond shall be substantially in the following form: The condition of the above obligation is such, that if_shall well and truly perform the office of