Schlossberg v. Schlossberg

Menchine, J., delivered the opinion of the Court. On March 8, 1973 Leonard Schlossberg (Personal Representative) was granted administrative probate upon the last will and testament of Lena S. Jacobs, deceased, dated October 18, 1969, and a first codicil of the said Lena S. Jacobs, dated August 18, 1971. On May 7, 1973 Personal Representative petitioned for judicial probate, referring therein to a second codicil for the first time. The petition conceded that the second codicil had been in his possession from the date of its execution on January 25, 1973.

Hearing upon the petition for judicial probate has not been had. Testamentary disposition under the will materially was altered by the provisions of both the first and the second codicils as shown by the following summary: ⁵²⁹ Will (Primary beneficiaries having survived the testatrix, contingent beneficiaries will not be named.) 1. Tangible personal property to Gertrude Auerbach. 2. Real Property (if owned): 1/3 to Paul Schlossberg; 1/3 to Esther Lipson; 1/3 to Gertrude Auerbach. 3. $5,000 to Rose Harris. 4.

Rest and residue to Leonard Schlossberg. First Codicil 1. Bequest of tangible personal property to Gertrude Auerbach under the will was revoked. 2. Disposition of real property (if owned) under the will was revoked and disposed of as follows: 1/2 to Paul Schlossberg; 1/2 to Esther Lipson.

(First codicil disinherited Gertrude Auerbach.) Second Codicil Paul Schlossberg disinherited. On August 10, 1973 Paul Schlossberg (Paul), brother of the decedent, asserting that he was an heir at law of Lena S. Jacobs, filed a petition to caveat directed against the will and both codicils. His attack questioned the execution of the documents; charged their procurement by undue influence exercised and practiced by Leonard Schlossberg; asserted that the decedent was of unsound mind and incapable of executing a valid deed or contract; alleged that they were procured by fraud exercised and practiced by Leonard Schlossberg; alleged that the documents did not represent and constitute the last will and testament of the decedent; ⁵³⁰ alleged that the meaning, intent and consequences of the documents were not understood by her; alleged that she did not have a full understanding or memory of those who were the natural objects of her bounty; alleged that she did not have a full understanding or comprehension of the extent and nature of her estate; and alleged that because of advanced age and infirmities of body and mind that the decedent was unable to comprehend the nature and extent of her estate, and to know and appreciate the consequences of her acts. In added attack upon the second codicil, his petition alleged that at the time of its execution decedent was terminally ill from kidney failure, was not in control of her faculties and was incapable of executing a valid codicil.

On September 24, 1973 and September 28, 1973 respectively, Albert Schlossberg (Albert) and Gertrude Auerbach (Gertrude) filed separate petitions to caveat the will and both codicils. Those petitions, each alleging that the individuals were heirs at law, asserted substantially the same grounds previously recited in Paul’s petition to caveat. The Personal Representative filed separate motions to dismiss the caveats of Albert and Gertrude to the extent that those caveats sought to contest the will and the first codicil, upon the ground that the petitions were not timely filed as to those testamentary documents. The Personal Representative has mounted no attack upon the timeliness of the caveat of Paul Schlossberg.

After a hearing upon the motion to dismiss the caveats of Albert and Gertrude as to the will and the first codicil, the Circuit Court for Montgomery County, sitting as the Orphans’ Court, passed the following order: “This cause was heard in open Court on January 17, 1974. Albert Schlossberg and Gertrude Auerbach have filed caveats and the personal representative of the estate, Leonard Schlossberg is resisting same as being not timely filed. The Court concludes that the caveats were timely and it is thereupon, by the Circuit Court for Montgomery County, Sitting as the Orphans’ Court, ⁵³¹ “ORDERED, on this 29th day of January, 1974, that the Personal Representative’s Motion to Dismiss the Petitions and Caveats is hereby denied, and because of the inventory of assets and the appraisals filed with the Court, it is further “ORDERED, that the nominal bond of $15,000.00 filed with the Court be increased to the sum of $203,000.00 pending a Court hearing as to the Petition for Judicial Administration.” The Personal Representative has appealed, contesting the propriety of the denial of his motions to dismiss. He contests also the sua sponte order of the trial court increasing the penalty of his bond.

Appellees, in their brief, have moved to dismiss the appeal as prematurely taken. Maryland Rules 1035 and 1036. We shall separately discuss those two questions in passing upon the motion to dismiss- this appeal. The Caveats of Albert and Gertrude Appellees maintain that the order sustaining their right to a trial upon the merits was not a final order and hence the present appeal is premature and must be dismissed.

It is facially apparent that the order relating to the subject caveats was not final. Appellant urges, however, that the decision in Safe Deposit and Trust Co. v. Hanna, 159 Md. 452 , 150 A. 870 , sustains his present right to appeal. Safe Deposit and Trust v. Hanna, supra, recognized the right of an executor to appeal from an order of the Orphans’ Court declaring “that the appellee was not precluded from caveating the will of his deceased father.” 454 [871] The Court of Appeals there rejected a motion to dismiss the appeal that had been grounded upon a contention that it was not a final order, saying at page 455 [871]: “* * * The order here appealed from determined the proper parties to the caveat proceeding, determined the issues to be tried, and directed that they be sent to a court of law. No tribunal other than this court has jurisdiction to review such an order of the orphans ’ court.

In no appeal from the result of a ⁵³² trial, in a court of law, of the issues transmitted, from the orphans’ court, could this question be here reviewed. It could form no part of the record in the lower court.” (Italics supplied.) We conclude that this decision must be narrowly construed and find that it has no application to the subject litigation. A subsequent amendment to the Constitution of Maryland and legislative changes incident to that amendment have destroyed its relevance to the subject case. Chapter 744 of the Acts of 1963 proposed and the people of Maryland in the election of November 3, 1964 ratified, the following amendment to Article IV, Section 20 of the Constitution of Maryland: “The several judges of the Circuit Court for Montgomery County on and after the Tuesday next after the first Monday in November, nineteen hundred and sixty-six, shall each, alternately and in rotation and on schedules to be established by the said judges, sit as an Orphan’s Court for said County, and shall have and exercise all the power, authority and jurisdiction which the present Orphans’ Courts now have and exercise, or which may hereafter be prescribed by law.” The following pertinent part of Chapter 699 of the Acts of 1966 implemented that amendment: “Instead of a direct appeal to the Court of Appeals pursuant to Section 9 of this article, any party may appeal to the circuit court for the county or to the Superior Court of Baltimore City from any decree, order, decision, or judgment of an orphans’ court; provided, however, that there shall be no appeal to the Circuit Court for Montgomery County from a decree, order, decision or judgment of the Orphans ’ Court for Montgomery County.

Any such appeal shall be heard de novo by said circuit court or Superior Court, as the case may be, and such court shall give judgment according to the equity of ⁵³³ the matter. From the final judgment or determination of said circuit court or Superior Court there shall be a further right of appeal to the Court of Appeals pursuant to the provisions of Section 1 of this article. (Italics indicate the legislative change.) The statutory law relating generally to appeals to this Court from the Orphans’ Courts as presently codified in the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, reads as follows: “Subtitle 5. Review of Decisions of Orphans’ Courts. § 12-501.

Appeal to Court of Special Appeals. A party may appeal to the Court of Special Appeals from a final judgment of an orphans’ court. However, if the final judgment was given or made in a summary proceeding, and on the testimony of witnesses, an appeal is not allowed under this section unless the party desiring to appeal immediately gives notice of his intention to appeal and requests that the testimony be reduced to writing. In such case the testimony shall be reduced to writing at the cost of the party requesting it.” The