Schlossberg v. Schlossberg

O’Donnell, J., delivered the opinion of the Court. On March 2, 1973, Lena S. Jacobs, a widow without descendants and a resident of Montgomery County, died testate. The record discloses that two brothers, a nephew, several nieces and at least one cousin survived as her heirs. The appellant Dr. Leonard Schlossberg, her nephew, on March 8, 1973 was granted administrative probate upon her last will and testament dated October 18, 1969, as well as a first códicil thereto dated August 18, 1971, pursuant to Maryland Code (1957, 1969 Repl.

Vol.) Art. 93, § 5-301. 1 ⁶⁰³ Named in the will as her “executor,” he was appointed her personal representative. 2 In accordance with the requirements of Art. 93, § 5-206, 3 he declared, “under the penalties of perjury” that he had “made a diligent search for a will of the decedent and to the best of [his] knowledge, the will accompanying [the] petition dated Oct. 18, 1969 and codicil dated 8/18/71 is the decedent’s latest wiH and said will came into petitioner’s hands in the following manner: ‘Removed by decedent’s attorney from their vault.’ ” He further attested therein that “all information is furnished” as required by the provisions of Art. 93, §§ 5-201 and 5-202. 4 Under the terms of Lena S. Jacobs’ last will and testament, all tangible personal property was bequeathed to her niece, Gertrude Auerbach, all her real estate was devised, in equal shares, to her brother Paul Schlossberg and two nieces, Esther Lipson and Gertrude Auerbach; a $5,000.00 bequest was made to a cousin, Rose Harris. The rest, residue and remainder of her estate was left to her nephew Leonard Schlossberg. The codicil filed with the will and dated August 18, 1971, disinherited Gertrude Auerbach and provided that any real property owned at the time of her death be devised in equal shares to her brother Paul and her niece Esther Lipson. On May 7, 1973 Leonard Schlossberg undertook to “amend” the proceedings by filing a petition for judicial probate under Art. 93, § 5-401, 5 setting out, for the first time, the existence of a second codicil, apparently written by someone other than the decedent, on a single sheet of lined yellow paper, dated January 25, 1973, and purporting to be signed by “Lena Jacobs” and to have been witnessed by ⁶⁰⁴ Leonard Schlossberg and one, Vie Beasley.

This second codicil undertook to cut “out completely Paul Schlossberg and Dora,” and stated, after the use of some vulgarity, “I want Laballa [Leonard] to get my properties along with Eskalla [Esther] ... I don’t want to leave a thing in the world to Paul, Dora or Gittal [Gertrude Auerbach].” The appellant’s petition prayed that the order for administrative probate theretofore granted be set aside, that the will and the two codicils be admitted to judicial probate and that he be re-appointed personal representative. In the petition he explained that he had had custody of this second codicil since its execution and that its belated disclosure was due to the fact that Lena had instructed him “to reveal to no one the existence of said codicil for a period of 30 days following the decedent’s death.” He self-servingly averred that he had “acted in good faith and without any intention to hinder, circumvent or delay the proper administration of this estate in his failure to reveal the existence of the later codicil to the Register of Wills ... or to his attorneys.” Paul Schlossberg on August 10, 1973 filed a petition and caveat attacking the last will and testament and both codicils. He alleged the full gamut of grounds; he 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 the will and codicils were procured by fraud exercised and practiced by Leonard Schlossberg; alleged that they did not represent and constitute the last will and testament of the decedent; alleged that the meaning, intent and consequences of the documents were not understood by her; alleged that she did not have a full understanding of 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.

He additionally alleged, in ⁶⁰⁵ connection with the second codicil that the decedent at that time was terminally ill from kidney failure, not in control of her faculties and incapable of executing a valid codicil. He prayed that issues be framed and transmitted to a law court. On September 24, 1973 her brother Albert Schlossberg, unmentioned as a legatee in the will or either codicil, filed a petition to caveat the will and both codicils. Gertrude Auerbach on September 28, 1973 filed her petition attacking only the codicils.

They respectively asserted substantially the same grounds as recited in Paul’s petition to caveat and also requested issues be sent to a law court. The timeliness of the caveat filed by Paul Schlossberg went unchallenged but the appellant, as personal representative, relying on the provisions of Art. 93, § 5-207, as then in effect, did file separate motions to dismiss the respective petitions of Albert Schlossberg and Gertrude Auerbach on the ground that they were not timely filed — within six months of the administrative probate of the will and the first codicil and of his appointment as personal representative. When the petition for judicial probate came before the Circuit Court for Montgomery County, sitting as the Orphans’ Court, on June 12, 1973 (before Cahoon, J.) the proceedings were postponed and no hearing thereon has as yet been conducted. On January 29, 1974 the Circuit Court for Montgomery County, sitting as the Orphans’ Court (Mitchell, J.) denied the motions of the appellant to dismiss the caveats filed by Albert Schlossberg and Gertrude Auerbach, holding that “the caveats were timely filed.” 6 The order passed, unaccompanied by any opinion did not frame any issues to be transmitted to a court of law.

The appellant filed a timely appeal from that order to the Court of Special Appeals. During the pendency of the appeal in that court one of the caveators, Albert Schlossberg, died ⁶⁰⁶ and Lottie Schlossberg, as the personal representative of his estate, became a substituted party-appellee. The Court of Special Appeals in Schlossberg v. Schlossberg, 22 Md. App. 527 , 323 A. 2d 708 (1974) vacated so much of the order of January 29, 1974 by which the Orphans’ Court had increased the penalty of the appellant’s bond; it dismissed the appeals of the personal representative of the denial of his motions to dismiss the two caveats on the ground that no final order had been passed from which an appeal could be taken. In reaching the result it did concerning appealability, that court found that our holdings in Safe Deposit and Trust Company v. Hanna, 159 Md. 452 , 150 A. 870 (1930) “must be narrowly construed” and that the “amendment to article IV, Section 20 to the Constitution of Maryland” coupled with the “legislative changes incident to that amendment have destroyed its relevance to the subject case.” 22 Md. App. at 532 , 323 A. 2d at 711 .

Pointing out that under the constitutional amendment, judges of the Circuit Court of Montgomery County sit “as an Orphans’ Court for said County” and exercise the power, authority and jurisdiction possessed and exercised by the Orphans’ Court or which may hereafter be prescribed by law, and noting that by virtue of the provisions of Chapter 699 of the Acts of 1966, [codified in Code (1957, 1966 Repl. Vol.) Art. 5, § 25] now codified in Code (1974), Courts and Judicial Proceedings Article § 12-502, the alternative right to appeal from an order of an Orphans’ Court to a Circuit Court was inapplicable in Montgomery County, that court, citing Courts and Judicial Proceedings Article § 12-501 which permits an appeal “to the Court of Special Appeals from a final judgment of an orphans’ court,” reasoned as follows: “The basis for the decision announced in Safe Deposit v. Hanna, supra, was that, unless jurisdiction had been recognized by the Court of Appeals as to that particular interlocutory or pro forma order of the Orphans’ Court, no appellate review of the decision would have been accorded to ⁶⁰⁷ the litigants. The cited constitutional and statutory changes have had the effect, in Montgomery County, of assuring opportunity for appellate review by this Court of every order passed by that circuit court sitting as an orphans’ court. Under those altered conditions the decison is without influence here.

We hold that the subject case is controlled by the general rule, that ‘appeals [from an orphans’ court] shall be taken only from final orders or decisions, those actually settling lights of the parties. ’ Collins v. Cambridge Hospital, 158 Md. 112, 116 , 148 A. 114, 116 .” (Emphasis supplied.) 22 Md. App. at 534 , 323 A. 2d at 712 . Finding that the conclusion reached was “bolstered by the existence of Maryland Rule 605” the Court of Special Appeals stated: “We know also that final determination of the rights of all concerned in the subject litigation will result from the trial of the unquestioned caveat filed by Paul Schlossberg. The issues raised by the caveats of Albert and Gertrude will be decided by that determination. See Code Art. 93, § 5-207 (a): Pleasants v. McKenney, 109 Md. 277, 291 .

The appeal from that part of the lower court’s order dealing with the timeliness of the petitions of Albert and Gertrude will be dismissed as prematurely filed.” 22 Md. App. at 535 , 323 A. 2d at 713 . We granted a writ of certiorari to review the issue of appealability since it was contended by the appellant that if the test applied by the Court of Special Appeals requires a final adjudication of the proceedings instituted by a caveator it would have the effect of overruling, throughout the state, our holdings in Hanna, supra, and if it is interpreted to be applicable only in Montgomery County a result would be reached which might permit a similar order to be treated as ⁶⁰⁸ a “final order” in one county but not treated as such in Montgomery County. 7 In Safe Deposit and Trust Company v. Hanna, supra, a son filed a caveat to the will of his deceased father attacking its execution and alleging mental incapacity and undue influence. The executors in the Orphans’ Court contended that he was estopped to file the caveat since he had been a party to and had actual knowledge of proceedings in the Circuit Court construing the decedent’s will. The Orphans’ Court passed an order, adjudging and decreeing that he was not precluded from caveating the will “and directed that issues requested be sent to the Baltimore City Court to be tried by a jury.” The executor appealed to this Court and the appellee filed a motion to dismiss the appeal.

In holding that the order was appealable, this Court in an opinion by Judge W. Mitchell Digges stated: “The ground upon which this motion is based is that the order of the orphans’ court appealed from was not a final order or decree, or in the nature of a final order or decree, and that therefore the appeal was prematurely taken. We are of the opinion that that position cannot be sustained. 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 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. In Langhirt v. Hicks, 153 Md. 31 , the finding of the orphans’ court, from which an appeal was taken, was that ‘the caveatrix is not estopped ⁶⁰⁹ or barred from prosecuting said caveat and that she is entitled to have the issues of fact raised by her said caveat and the answer thereto, as to the validity and genuineness of the alleged last will and testament of Margaretha Langhirt, deceased, sent to a court of law to be determined by a jury.’ In dismissing the appeal this court said: ‘It is not from a final order, or indeed from any effective order. No doubt another order would have followed, sending issues to a court of law.

From such an older an appeal would lie. The order passed was nothing more, in effect, than the opinion of the court. Newell v. Dundalk, 149 Md. 182 .’ ” (Emphasis supplied.) 159 Md. at 455 , 150 A. at 871 . As pointed out in Hanna, supra, the order of the Orphans’ Court in Langhirt v. Hicks, 153 Md. 31 , 137 A. 482 (1927) merely declared that “the caveatrix is not estopped or barred from prosecuting said caveat.” If that order had included the framing of issues and their transmittal to a lower court the Court stated it would have been appealable.

Although in Langhirt the appeal was dismissed, the Court noted “that to dismiss the appeal without an expression of the views of the Court would result in another appeal on a similar record with nothing added but the final order” and in remanding the case for further proceedings, stated “what our decision would be if the case was properly before us.” In Senk v. Mork, 212 Md. 413 , 129 A. 2d 675 (1957), a husband who had the right to elect a renunciation of any bequest made to him under the last will and testament of his wife failed to do so within the time required, but instead filed a caveat to her will. The executrix moved to dismiss his caveat asserting that his failure to file his renunciation barred his right to caveat. The Orphans’ Court for Montgomery County denied the petition of the executrix to dismiss the caveat and directed that issues as framed be transmitted to the Circuit Court. In holding that “the right of a caveator to contest the will must, if challenged, be established before issues as to the validity of the will are ⁶¹⁰ determined” and that “[i]t is within the jurisdiction of the Orphans’ Court to determine such questions either upon a hearing in that court or by first sending issues pertaining to such questions to a law court for trial” Chief Judge Bruñe, who handed down the opinion for the Court, noted: “In the Orphans Court the executrix’ petition to dismiss the husband’s petition and caveat was denied and an order was entered on May 31, 1956, directing that the issues be transmitted to the Circuit Court.

The appeal is from that order. No question is raised as to its being an appealable order. See Sykes, Contest of Wills in Maryland, § 154, page 199; Little Sisters of the Poor v. Cushing, 62 Md. 416 .” 212 Md. at 416 , 129 A. 2d at 676 . See also Zinn v. Imperial Council, 253 Md. 183, 187-88 , 252 A. 2d 76, 79 (1969) and Safe Deposit and Trust Company v. DeVilbiss, 128 Md. 182, 185 ; 97 A. 367, 369 (1916).

The holding in Hanna, supra, is not an isolated or atypical case. In Forsythe v. Baker, 180 Md. 144, 150 , 23 A. 2d 36, 38 (1941), and in Holland v. Enright, 167 Md. 604, 608 , 175 A. 466, 468 (1934), it was held that once issues are transmitted to a law court the Circuit Court was bound by them and had no power to review the proceedings in the Orphans’ Court in respect to them, nor to consider the propriety or sufficiency of the pleadings upon which they were founded, and that “[i]f either party had desired to raise any question as to the form of the issues, the propriety or regularity of the proceeding in which they were framed, or the sufficiency of the pleadings to support them, it should have done so by appealing from the order granting them (Little Sisters of the Poor v. Cushing, 62 Md. 416, 421 [(1884)]; Code, art. 5, sec. 64), for it could have been raised in no other way.” Although, as the Court of Special Appeals pointed out, in Collins v. Cambridge Hospital, 158 Md. 112 , 148 A. 114 (1930), it was therein stated that: “While it is true that parties deeming themselves ⁶¹¹ aggrieved have been given a right of appeal to this court from all orders and decisions by the orphans’ court (Code, art. 5, sec. 64), it has always been recognized that the meaning of the statute must be that the appeals shall be taken only from final orders or decisions, those actually settling rights of the parties.” 158 Md. at 115-16 , 148 A. at 116 . It was the holding of that case that an order of the Orphans’ Court merely “determining in the affirmative only the question of jurisdiction in the court to hear the controversy and thereafter decide whether persons applying [to caveat] shall be made parties, is not such a final order.” A distillation of the holdings in all these cases leads to the conclusion that in caveat proceedings once issues have been framed by an Orphans’ Court and transmitted to a court of law for trial, such an order is “final” and appealable. When Langhirt, Hanna and Collins each visited this Court, the appeals were entered pursuant to Maryland Code (1924) Art. 5, § 64, which read: “From all decrees, orders, decisions and judgments, made by the orphans’ court, the party, who may deem himself aggrieved by such decree, order, decision, or judgment, may appeal to the Court of Appeals.” That statute, originally enacted by Ch. 204, § 1 of the Acts of 1818 remained intact governing appeals to this Court from the Orphans’ Courts until June 1, 1957 when pursuant to a revision, Art. 5 was repealed and re-enacted.

By Ch. 399 of the Laws of 1957 the legislature, in place of Art. 5, § 64 enacted Code (1957) Art. 5, § 9, which read: “Any party may appeal to the Court of Appeals from any decree, order, decision or judgment of an orphans’ court.” That same Chapter of the Laws of 1957 enacted Code (1957) Art. 5, § 10 governing appeals from decisions of the Orphans’ Courts in summary proceedings and requiring upon the filing of notice of intention to appeal a request that the testimony be transcribed. Effective January 1, 1974 Sections 9 and 10 of Art. 5 “were combined” and enacted as Code (1974), Courts and Judicial ⁶¹² Proceedings Article § 12-501. What was theretofore Art. 5, § 9 now reads: “A party may appeal to the Court of Special Appeals from a final judgment of an orphans’ court.” The revisor’s note to § 12-501 states that “the only changes made are in style.” Our decisions in Langhirt and Hanna engrafted the word “final” upon the clause “all decrees, orders, decisions and judgments, made by the orphans’ court,” as set forth in Art. 5, § 64. As we read Collins we cannot construe the dictum therein — as apparently did the Court of Special Appeals — as requiring, in caveat proceedings that before such an order can be appealable it must be “ ‘one which finally settles some disputed right or interest of the parties’,” Brooks v. Sprague, 157 Md. 160, 164 , 145 A. 375, 377 (1929); or be “so far final as to determine and conclude the rights involved in the action, or to deny to the party seeking redress by the appeal the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.” See In re Buckler Trusts, 144 Md. 424, 427 , 125 A. 177, 178 (1924).

We hold that the use of the term “a final judgment” as used in Code (1974), Courts and Judicial Proceedings Article § 12-501 >vas not intended to overrule or modify our antecedent decisions delineating the nature of orders in caveat cases which are final and appealable. We conclude that our holdings in Safe Deposit and Trust Company v. Hanna, supra, are still viable and determinative of the appealability of orders passed by the Orphans’ Courts in such caveat proceedings. Thus, the “final judgment” of an Orphans’ Court are those judgments, orders, decisions, etc. which, in caveat proceedings, finally determine the proper parties, the issues to be tried and the sending of those issues to a court of law. See Code (1974),.

Courts and Judicial Proceedings Article § 12-101 (f), defining “final judgment.” 8 Nor, as we see it did the amendment to art. IV, Sec. 20 of the Constitution of Maryland and the enactment of Ch. 699 ⁶¹³ of the Acts of 1966 “destroy [the] relevance” of our holdings in Hanna to the case before us. By ratification of the electorate on November 3, 1964 the Constitution of Maryland was amended to provide that the judges for the Circuit Court for Montgomery County shall sit as the Orphans’ Court for that county. A similar amendment ratified by the voters on November 7, 1972 provided that the judges of the Circuit Court for Harford County shall similarly sit as the Orphans’ Court for that county.

Thus, apart from the remainder of the state where there are separate judges of the Orphans’ Court, in Montgomery and Harford Counties, although the Orphans’ Court, as a court, continues in existence, the judges of the respective Circuit Courts function as judges of the Orphans’ Court. From the final judgments of the Orphans’ Court, effective January 1,1974, appeals are entered to the Court of Special Appeals rather than to this Court as theretofore provided. See Code (1974), Courts and Judicial Proceedings Article § 12-501 and § 12-308 (a) (15). See also § 12-308 (b) which provides that, after December 31, 1974 the Court of Special Appeals has “exclusive initial appellate jurisdiction of any reviewable judgment, decree, order or other action of a circuit court or an orphans’ court.” (Emphasis supplied.) By Ch. 399 of the Laws of 1957, Codified as Code (1957) Art. 5, § 25, the legislature created the right to an alternative appeal from “any decree, order, decision, or judgment of an orphans’ court.” It provided primarily that “ [iInstead of a direct appeal to the Court of Appeals pursuant to [Art. 5] § 9 ..., any party may appeal to the circuit court for the county or to the Superior Court of Baltimore City.” Secondarily it provided that any such appeal to a Circuit Court or to the Superior Court be heard de novo and from the final judgment or determination in that “appellate” court, a further appeal to this Court might be taken.

By Ch. 699 of the Laws of 1966, decisions of the Orphans’ Court for Montgomery County were excluded from the applicability of the section, and by Ch. 20 of the Laws of 1975 Harford County was excluded from such an optional appeal. ⁶¹⁴ What was formerly Art. 5, § 25, including the Montgomery County exception — was codified in Code (1974), Courts and Judicial Proceedings Article § 12-502 (a), which prior to its amendment by Ch. 20 of the Laws of 1975 read as follows: “In general; exception in Montgomery County.— Instead of a direct appeal to the Court of Special Appeals pursuant to § 12-501, a party may appeal to the circuit court for the county or to the Superior Court of Baltimore City from a final judgment of an orphans’ court. The appeal shall be heard de novo by the appellate court, and it shall give judgment according to the equity of the matter. This subsection does not apply to Montgomery County.” (Emphasis supplied.) 9 Prior to 1957 this Court had exclusive appellate jurisdiction over the “final judgments” of an Orphans’ Court in caveat proceedings as delimited by our holdings in Hanna . The creation of the right of an alternative optional appeal did not in any way alter the nature of such orders in order that they be final and appealable.

Nor did the exemption in 1966 of Montgomery County (and in 1975 of Harford County) from the applicability of the alternate appeal procedure alter the criteria for the appealability of such orders; as far as Montgomery and Harford Counties are concerned the test laid down for the appealability of such orders thus remained precisely what it was, under the standard circumscribed in Hanna , prior to the enactment of Art. 5, § 25 in 1957. As we see it the standards for determining the appealability of orders in such caveat proceedings — that they be from “final judgments” of an Orphans’ Court — are the same throughout the state, whether the appellant enter his appeal to the Court of Special Appeals under § 12-501 of the Courts and Judicial Proceedings Article or under 8 12-502 (a) to the ⁶¹⁵ Superior Court of Baltimore City or to one of the Circuit Courts, other than Montgomery and Harford Counties. It is our conclusion that neither the amendments to article IV, Section 20 of the Constitution of Maryland, nor the enactment of Art. 5, § 25, as now codified in § 12-502 of the Courts and Judicial Proceedings Article, had any effect whatsoever upon the criteria established in Hanna for determining, in caveat proceedings, what is a final and appealable order. The shortcoming of the orders here before us is that they merely determined that the caveats of Albert Schlossberg and Gertrude Auerbach had been “timely filed.” Assuming that they are “proper parties” to the caveat proceedings — which does not appear to have been challenged — under our holdings in Hanna the orders were not final and thus not appealable, since the Orphans’ Court did not frame nor send any issues to a law court for trial.

See Collins v. Cambridge Hospital, supra, Langhirt v. Hicks, supra. We further observe that there has been no judicial determination that the administrative probate granted the appellant be set aside nor, as prayed by him, that judicial probate be granted. See Code (1957, 1969 Repl. Vol. [1973 Cum.

Supp.]) Art. 93, § 5-304. The infirmity of the failure of the Orphans’ Court to formulate issues is recognized by the appellant who states, however, that such matters are “purely formal, however, because the issues have already been formed by the pleadings,” and that when the Orphans’ Court “takes the next step by adding a simple paragraph to [its] order setting forth the issues and directing that they be sent to the law court all the parties will be back in the Court of Special Appeals again.” In urging that we pass upon “the only matter of substantive importance” decided by the Orphans’ Court the appellant contends that the addition of a formal paragraph setting forth matters already contained in the pleadings