Seifert v. Gary

JAMES S. GETTY, Judge, Specially Assigned. This case originated in the Orphans’ Court for Baltimore County resulting in a ruling that the decedent died intestate. That ruling was appealed to the Circuit Court for Baltimore County wherein Judge James T. Smith, Jr., denied a motion to dismiss the appeal as untimely and, at the conclusion of a de novo hearing, held that the decedent did not die intestate. The matter was then appealed to this Court for further review.

Henry Stewart Cunningham, the decedent, died July 30, 1988, survived by two daughters, Angela A. Seifert, the appellant herein, and Betty J. Gary, the appellee. A Petition for Probate filed by appellant alleged that her father died intestate. At the commencement of the probate hearing on October 18, 1988, appellee’s husband, Allen C. Gary, ³³⁹ produced a Will he prepared for the decedent dated March 30, 1987, naming Mr. Gary personal representative. Significantly, the Will left the entire estate to the appellee except for a $5.00 bequest to the appellant.

When the probate proceedings began, only one of the three judges of the orphans’ court was present. The judge inquired of the parties if they had any objection to proceeding before a single member of the court and, hearing none, he proceeded with the hearing. The case was not concluded on October 18th, because the witnesses to the Will were not present. The case continued on November 4, with the witnesses in attendance, and the same judge presiding individually.

A third hearing and ruling took place on November 30, again before the single member of the court, who announced that he was not accepting the Will prepared by the appellee’s husband and that Carl Gold would be appointed personal representative of the estate, because the parties were viewing each other with crossed swords and the estate would be better served by the appointment of a third party. Gold filed a Petition for Probate on December 6 and he was appointed personal representative of the estate by an order signed that same day by two judges of the orphans’ court. Following Gold’s appointment, the appellee entered an appeal to the Circuit Court for Baltimore County, dated January 5, 1989, requesting that the December 6 order be vacated and that the decedent’s Will be admitted to probate. Appellant responded to appellee’s appeal by motion to dismiss alleging that the appeal was untimely in that appellee should have appealed the November 30th decision by the orphans’ court not to accept the will.

Appellant claimed, correctly, that more than 30 days had elapsed from November 30 until the filing of the appeal on January 5, 1990. The trial judge dismissed appellant’s motion, stating that the time clock for appeal purposes did not begin to run until the order was signed by the orphans’ court judges which was December 6th. Thereafter, the circuit court held a de ³⁴⁰ novo hearing, reversed the orphans’ court, and held that decedent’s Will should be admitted to probate. First, we point out that the orphans’ court is without authority to conduct judicial probate proceedings by resort to the perceived practice in Baltimore County of having a single judge conduct the proceedings and thereafter finalize the action taken by having a second judge join in signing an appropriate order.

Obtaining the prior consent of the litigants to proceed before a single judge is no panacea for continuing this practice in light of the applicable statutory law governing probate. Maryland Annotated Code, Estates and Trusts Article, sec. 2-106(a), states in part: Except as provided in this section ... the court shall be held in each county at the usual place of holding court in the county____ One of the judges of the court, in the absence of the others, shall have power to hold court at a stated time of adjournment only for the purpose of adjourning. Two judges shall have full power to do an act which the court is or may be authorized by law to perform, and two of them shall have power to hold court on a day not named in an adjournment____ One of the judges, in the absence of the others on account of prolonged illness, or in case of vacancy, shall have full power to do an act which the court is authorized by law to do, provided there is attached to the proceedings on papers in each case a certificate signed by the register, certifying to the vacancy or prolonged illness of the judge or judges not attending court on that day. 1 ³⁴¹ The Legislature has clearly limited the circumstances under which a single judge may conduct matters before the orphans’ court and it has expressly rejected the short-lived authorization of a single judge to act pursuant to a written stipulation by the parties. See n. 1.

We hold, therefore, that the court proceedings and the rulings flowing therefrom on October 18th, November 4th, and November 80th are a nullity, because the court was without authority to proceed with less than two members of the court present and participating therein in the absence of a certificate from the register of wills certifying to the illness of the other judge or judges. The appellant contends that the appeal was untimely, because the decision not to accept the purported Will was announced on November 30, 1988, and a docket entry was