Patrick v. Patrick

CATHELL, Judge. Appellant, Daniel E. Patrick, Sr., personal representative of the estate of Edna Lorraine Patrick (the testatrix), appeals from the judgment of the Circuit Court for Baltimore County. The trial court found that the testatrix had attempted to revoke a $5,000 bequest to her granddaughter, Rachel, in trust, and a bequest of one-half of the residuary estate to her son, David, by drawing lines through portions of her will. It determined that the testatrix’s attempt was an attempt to create a new will and was, thus, ineffective.

The trial court then held that the first will, the will as it existed without the deletions, remained operative. Appellant raises the following questions: 1. Does Section 4-105 of the Estates and Trusts Article provide for partial revocation by the Testatrix through the cancelling of certain provisions in her will without adhering to the statutory requirements of Section 4-102 of the Estates and Trusts Article? 2. If the statutory language is clear and unambiguous, can the trial court consider prior statutes based on slightly different language and its accompanied case law, in order to determine the legislative intent of a clearly drafted statute? 3.

Should Maryland’s restricted approach to partial revocation be followed when other jurisdictions provide a much better method by employing a literal approach to Section 4-105 of the Estates and Trusts Article? We shall reverse the order of the trial court as to the $5,000 bequest to Rachel because, as to that bequest, we believe that the trial judge read the language from two early Court of Appeals eases, which interpreted an earlier version of § 4-105 ⁴⁴¹ of the Estates and Trusts Article, too broadly. We shall otherwise affirm. We explain.

THE FACTS As relevant to this appeal, the testatrix’s will provided (with the lined and emphasized portions representing the text she crossed out and the portions enclosed in brackets representing the text she added): LAST WILL AND TESTAMENT OF EDNA LORRAINE PATRICK I, EDNA LORRAINE PATRICK of Baltimore County, Maryland, being of sound mind and memory, and not acting under duress, menace, fraud or undue influence of any person whatsoever, do make, publish and declare this to be my Last Will and Testament, and I revoke all previous Wills and Codicils made by me. FIRST: I direct that all my just debts, expenses of my last illness and funeral, expenses of the administration of my estate, and estate and inheritance taxes on the whole of my estate be paid out of the first available funds as administrative expenses. SECOND: I give, devise and bequeath the sum of One Hundred ($100.00) Dollars to each of—my—grandchildren. [Rick’s and Dave’s] I give, devise and bequeath the additional sum of Five Thousand ($5,000.00) Dollars to my grandchild Rachel, in trust until her 18th birthday at which time it is to be distributed to her along with any accumulated earnings. THIRD: I give, devise and bequeath all the rest and residue of my property, after payment of debts, expenses and taxes provided for in the First Item above, whether such property be real, personal or mixed, of whatever kind or character or wheresoever situated to my sons, Daniel E. Patrick, Sr. and David M. Patrick, Sr., equally, share and share alike. ⁴⁴² The trial court held, and neither party disputes, that the testatrix had made the changes in the will and that she “had the intent to alter the Will as initially executed and thereby to strike provisions which would have benefitted her son, David, and his heirs.” (Footnote omitted.) Specifically, the trial court found that she attempted to revoke the $5,000 bequest to her granddaughter, Rachel, apparently the daughter of David, in trust, and the bequest of one-half of her residuary estate to her son David M. Patrick, Sr. LEGAL ANALYSIS Appellant contends that the trial court erred by not following the literal language of Md.Code (1974, 1991 Repl.Vol.), § 4-105 of the Estates and Trusts Article and by following the precedent of two Court of Appeals cases that interpreted an earlier statute that used the word, “clause,” instead of the word, “part,” which is currently used.

As stated above, we believe that the trial court erred in its interpretation of those Court of Appeals cases, but we agree with the trial court in its holding that the legislature did not intend to change the meaning of § 4-105 when it substituted the word, “part,” for the word, “clause.” Section 4-105 currently reads, in pertinent part: A will, or any part of it, may not be revoked in a manner other than as provided in this section. (1) Subsequent will.—By provision in a subsequent, validly executed will which (i) revokes any prior will or part of it either expressly or by necessary implication, or (ii) expressly republishes an earlier will that had been revoked by an intermediate will but is still in existence; (2) Destruction.—By burning, cancelling, tearing, or obliterating the same, by the testator himself, or by some other person in his presence and by his express direction and consent____ [Emphasis added.] The 1991 replacement volume of the Estates and Trust Article does not contain any Revisor’s Note or Comment. The 1974 volume, however, did. The Revisor’s Note from that ⁴⁴³ volume provided, “This section formerly appeared as Article 93, § 4-105.

Changes are in style and language.” The Comment to former Article 93, § 4-105 provided, in pertinent part: This section adopts, without change of substance, former § 351, which was recently reconsidered and amended by the General Assembly. Article 93 § 351, in turn, provided: No will or codicil in writing, nor any clause thereof, shall be revoked otherwise than as provided herein: (a) By some other will, codicil, or other writing, executed as provided in § 350, altering or revoking said will or codicil. (b) By burning, cancelling, tearing or obliterating the same, by the testator himself, or by some other person in his presence and by his express direction and consent. [Emphasis added.] Appellant requests that we ignore the Comment to section 4-105, which would then permit us to ignore the Court of Appeals’s decisions interpreting language very similar to that of Article 93 § 351. By examining the current language of section 4-105 of the Estates and Trust Article in this vacuum, appellant suggests that, under the plain meaning rule of statutory construction, the testatrix was allowed to strike certain portions of her will regardless of the effect this would have on the rest of her will.

We disagree and explain. In Barr v. Barberry Bros., Inc., 99 Md.App. 33, 38-39 , 635 A.2d 64 (1994), we quoted from Mazor v. Dep’t of Correction, 279 Md. 355, 360-61 , 369 A.2d 82 (1977), and Subsequent Injury Fund v. Ehrman, 89 Md.App, 741, 746-47, 599 A.2d 875 (1992), and stated: [S]ix principal guidelines of statutory interpretation [are]: “The cardinal rule of construction of a statute is to ascertain and carry out the real intention of the Legislature .... ⁴⁴⁴ The primary source from which we glean this intention is the language of the statute itself---- And in construing a statute we accord the words their ordinary and natural signification---- If reasonably possible, a statute is to be read so that no word, phrase, clause or sentence is rendered surplusage or meaningless---- Similarly, wherever possible an interpretation should be given to statutory language which will not lead to absurd consequences.... Moreover, if the statute is part of a general statutory scheme or system, the sections must be read together to ascertain the true intention of the Legislature.” While the language of the statute is the primary source from which to glean the legislative intent, we do not ignore other possible sources of that intent. The Court of Appeals, in Kaczorowski v. City of Baltimore, 309 Md. 505, 513-14 , 525 A.2d 628 (1987), stated: Of course, in our efforts to discover purpose, aim, or policy we look at the words of the statute.

That is the thrust of the plain-meaning rule relied on by Kaczorowski, and the rule comports with common sense, because what the legislature has written in an effort to achieve a goal is a natural ingredient of analysis to determine that goal. But the plain-meaning rule is not rigid. We also recognize the rule that where a statute is plainly susceptible of more than one meaning and thus contains an ambiguity, courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment. State v. Fabritz, 276 Md. 416 , 348 A.2d 275 (1975); Height v. State, 225 Md. 251, 170 A.2d 212 (1961).

In such circumstances, the court, in seeking to ascertain legislative intent, may consider the consequences resulting from one meaning rather than another, and adopt that ⁴⁴⁵ construction which avoids an illogical or unreasonable ..result, or one which is inconsistent with common sense. Tucker [v. Fireman’s Fund Ins. Co.], 308 Md. [69] at 75, 517 A.2d [730] at 732 [ (1986) ] [some citations omitted]. The Court added: When we pursue the context of statutory language, we are not limited to the words of the statute as they are printed in the Annotated Code.

We may and often must consider other “external manifestations” or “persuasive evidence,” including a bill’s title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case. ... Thus, in State v. One 1983 Chevrolet Van, 309 Md. 327 , 524 A.2d 51 , (1987), we held that when a motor vehicle is forfeited under Art. 27, § 297, and is then sold in a commercially reasonable manner, the person who owned it prior to forfeiture is not prohibited from purchasing it. 309 Md. at 345-47, 524 A.2d at 60 . Although we did not describe any of the statutes involved in that case as ambiguous or uncertain, we did search for legislative purpose or meaning—what Judge Orth, writing for the Court, described as “the legislative scheme.” At 344-45, 524 A.2d at 59 . We identified that scheme or purpose after an extensive review of the context of Ch. 549, Acts of 1984, which had effected major changes in Art. 27, § 297.

That context included, among other things, a bill request form (At 327-30, 524 A.2d at 51-52 ), prior legislation (At 330, 524 A.2d at 52 ), a legislative committee report (At 331, 524 A.2d at 53 ), a bill title (At 331, 524 A.2d at 53 ), related statutes (At 335—41, 524 A.2d at 55-58 ) and amendments to the bill (At 341-44, 524 A.2d at 58-59 ). See also Ogrinz v. James, 309 Md. 381 , 524 A.2d 77 (1987), in which we considered legislative history (a committee report) to assist in construing legislation ⁴⁴⁶ that we did not identify as ambiguous or of uncertain meaning. At 390, 524 A.2d at 82. Id. at 514-15, 525 A.2d 628 .

In Office & Professional Employees Int’l Union v. MTA, 295 Md. 88, 100-01 , 453 A.2d 1191 (1982), the Court stated: A change in the phraseology of a statute as part of a recodification will ordinarily not be deemed to modify the law unless the change is such that the intention of the Legislature to modify the law is unmistakable. Bureau of Mines v. George’s Creek, 272 Md. 143, 155 , 321 A.2d 748 (1974). Moreover, the Revisor’s Note to § 7-601 confirms that no substantive change was intended. The note states as follows: “This section is new language derived without substantive change from the first paragraph of former Article 64B, § 37(b).” The notes or reports of a revisor br revision commission are entitled to considerable weight in ascertaining legislative intent.

Briggs v. State, 289 Md. 23, 30-31 , 421 A.2d 1369 (1980); Bureau of Mines v. George’s Creek, supra, 272 Md. at 155 [ 321 A.2d 748 ]; Alters v. Tittsworth, 269 Md. 677, 683 , 309 A.2d 476 (1973). See also Dean v. Finder, 312 Md. 154, 162-63 , 538 A.2d 1184 (1988): When the transfer and recordation tax statutes were recodified into the Tax-Property Article in 1986, the Legislature deleted the word “actual” when referring to the consideration upon which the tax is to be imposed. 1985 Md.Laws Ch. 8 § 2. The Revisor’s Notes to these amendments provide that the new language is derived without substantive change from the former recordation and transfer tax provisions, indicating that the word “actual” was not intended as the restrictive modifier that the Deans suggest. It is a well-settled practice of this Court to refer to the Revisor’s Notes when searching for legislative intent of an ⁴⁴⁷ enactment.

Allers v. Tittsworth, 269 Md. 677, 683 , 309 A.2d 476, 480 (1973). Allers v. Tittsworth, 269 Md. 677, 683 , 309 A.2d 476 (1973): The practice of considering revision commission reports in searching for legislative intent is too well established to be open to question. See Meyer, Legislative History and Maryland Statutory Construction, 6 Md.L.Rev. 311, 314-15 (1942), citing Strauss v. Heiss, 48 Md. 292, 296 (1878) and Public Service Commission v. Sun Cab Co., 160 Md. 476 , [West v. Sun Cab Co.] 154 A. 100 (1931). Barr, 99 Md.App. at 40 , 635 A.2d 64 : We further noted in [C & R Contractors v.] Wagner, 93 Md.App. [801] at 809 [ 614 A.2d 1035 (1992) ], that when substantive changes are made it indicates an “intent to change the meaning of that statute.” We also perceive that the opposite, i.e., no substantive change, reflects a legislative intent that the meaning of the statute is not meant to be changed.

We additionally note that other authorities have not discerned any significant difference between the words, “clause” and “part,” as they are used in this context. Eschbach v. Collins, 61 Md. 478 (1884), and Home of the Aged v. Bantz, 107 Md. 543 , 69 A. 376 (1908), are the two cases that the trial judge relied on in deciding that the alterations that the testatrix made to her will were invalid. The facts of Eschbach , briefly stated, are that the testator had ten children, seven sons and three daughters, and divided his estate into ten equal parts; each child receiving an “equal share.” He gave eight of his children a life estate in their respective part with a remainder to their children. To his two eldest sons, the testator gave each a part absolutely and in fee.

Later, the testator crossed out the names of his two eldest sons, but left the words, “sons,” which preceded their names. The Court was divided over the effect that this obliteration had on his will. The majority of the Court believed that the altered will gave each of the seven sons their shares absolutely and in fee. The other members of the Court believed that the ⁴⁴⁸ altered will gave all of the testator’s children life estates in their respective shares with remainders to their children.

The Court, however, was in unanimity over the issue of whether the will, as altered, was valid; all agreeing that it was not. In Bantz , the testator crossed out portions of his will that disposed of the remainder of his estate after a trust created for the purpose of paying income to his wife for her life was to cease (at her death). The Court held that the effect that the obliteration had on the will was to cause the remainder to pass through intestacy. The Court held that the will, as altered, was valid.

Chief Judge Alvey, in his concurring opinion in Eschbach, 61 Md. at 502 -, noted that the language of then Art. 93, sec. 302, “No devise in writing of lands, etc., or any clause thereof, shall be revocable otherwise than by some other will or codicil in writing,” “was literally transcribed from sec. 6 of the Statute of Frauds. •...” 2 W. Page,