Sing Ying Kao v. Ben Hsia

ADKINS, Judge. This appeal from the Orphans’ Court for Montgomery County involves the circumstances under which issues may be transmitted by an orphans’ court to a circuit court, for resolution by the latter, and the appropriate subject matter of issues. For reasons we shall in due course explain, we hold that the Orphans’ Court for Montgomery County erred in transmitting to the circuit court for that county the issues now before us. 1 We first sketch the factual and procedural background of the case. ³⁶⁹ I. Background Sing-Pao Chiang, a native of mainland China, came to the United States many years ago and eventually became a naturalized citizen. Somewhat late in life she married (apparently in Taiwan) a widower, Charles C.H. Hsia.

Mr. Hsia had four sons by his previous marriage, Arthur, Ben, Carl, and Donald Hsia. In 1973, when Sing-Pao Chiang Hsia and Charles C.H. Hsia were married to each other and residing in Montgomery County, they executed wills. Hers left one-third of her estate to her husband, if he survived her, and if not, to her four stepsons. The remaining two-thirds were left to her sister, Sing-Ying C. Kao (also known as Xin Ying Jiang), with contingent gifts to two schools if Mrs. Kao did not survive Mrs. Hsia. 2 His left everything to his wife if she survived, and otherwise to his four sons and Mrs. Kao in equal shares.

At that time Mrs. Kao was a resident of Shanghai, China, but in 1981 she came to live with Mr. and Mrs. Hsia. Mr. Hsia died in Montgomery County on 28 April 1983. All his property passed to Mrs. Hsia, not by virtue of his will, but by survivorship—it was all held by the entireties, according to Mrs. Kao. On 2 June 1983 Mrs. Hsia executed a new will, revoking the 1973 will and leaving the bulk of her estate to her sister, Sing-Ying C. Kao.

The 1983 will made no mention of her four stepsons. When Mrs. Hsia’s will was filed for probate in the Orphans’ Court for Montgomery County, three of the stepsons, Ben, Carl, and Donald Hsia, petitioned to caveat the ³⁷⁰ 1983 will. 3 The petition charged that Mrs. Hsia lacked testamentary capacity, that Mrs. Kao had procured the will by undue influence and fraud, and that the will breached a contract Mr. and Mrs. Hsia had made with respect to the disposition of their estates. Issues for the most part reflecting these contentions were framed by the Orphans’ Court for Montgomery County and transmitted to the Circuit Court for Montgomery County. The propriety of those issues is not before us.

It is clear, however, that the Caveators hoped to invalidate the 1983 will, thereby reviving the 1973 document with its more favorable (to them) provisions. There were extensive proceedings in the circuit court, including lengthy discovery. Eventually, the Caveators moved to remand the case to the orphans’ court for the framing of supplementary issues. The motion is barren of specific factual allegations, averring only that “[t]hrough discovery substantial additional facts were uncovered which are vital to this case and which have prompted the need for supplementary issues to be raised.” It seems, however, that the Caveators had unearthed some provisions of Taiwanese law that they thought would be beneficial to them, even if Mrs. Hsia had possessed testamentary capacity in 1983, had not been unduly influenced or defrauded by Mrs. Kao, and had not breached any contract with the late Mr. Hsia.

In any event, the remand was ordered, and the propriety of that order is not before us. On remand, and without the benefit of further pleadings to elucidate the Caveators’ new theory, the orphans’ court framed and transmitted to the circuit court “the following supplementary issues ... to be consolidated with the issues” previously transmitted: 1. Does this Court recognize and take notice of the laws of the Republic of China [Taiwan] as applied to its nationals? ³⁷¹ 2. Does this Court recognize and accept as binding the marriage contracts of nationals of the Republic of China when those marriage contracts are entered into in the Republic of China and pursuant to those laws? 3.

Does this Court recognize and accept as binding the resulting contract, either quasi-contract or implied contract, with the children of such nationals when such children are born in the Republic of China and under the laws of the Republic of China, and in particular the right under the laws of the Republic of China that their parent may not under those laws disinherit those children by Will or in any other manner? 4. Did the Will of Charles C.H. Hsia, the father of the Caveators, the four sons, purport to disinherit the four sons? 5. Did the advice given to one of the sons by his father that ‘We have taken care of you in our Wills’ induce the sons not to contest their father’s Will? 6. Did the Will of Sing-Pao C. Hsia, the decedent, attempt to controvert the sons’ right of inheritance and was such attempt in violation of their legal rights? 7.

Does this Court recognize the right to ‘dual nationality’ as does the United States Government and as evidenced by the information provided by the United States Government on passports issued by [it]? 8. Does this Court recognize the rights of the Caveators as dual nationals, under the laws of the Republic of China? 9. Does this Court recognize and take judicial notice of the provisions of Article 1, Section 10 of the Constitution of the United States which forbids any state to pass a law impairing the Obligation of Contracts, and how does that Constitutional provision affect the Caveators? It is from the order transmitting these issues that Sing-Ying C. Kao (Caveatee), appeals.

As we have said, the ³⁷² appellees are her late sister’s three caveator-stepsons, Ben, Carl, and Donald Hsia. 4 II. Questions on Appeal Caveatee contends (as we see her contentions) that: 1. An orphans’ court , may not frame and transmit issues to a circuit court unless the basis for them has been established by pleadings in the orphans’ court; 2. An orphans’ court may not transmit issues of law to a circuit court; and 3.

Once an orphans’ court has transmitted issues to a circuit court, the orphans’ court may not thereafter add supplemental issues. 5 Caveators respond that a circuit court may require an orphans’ court to transmit supplemental issues; that it is appropriate to transmit issues of law (Caveators concede, perhaps too quickly, that all the issues before us are of law); and that because the circuit court cannot “be relegated to the function of a mere [fact-finding] conduit” what occurred here was proper. 6 ³⁷³ Before applying these arguments to the record before us, it will be helpful to review well-established law pertaining to orphans’ courts and issues emanating therefrom.

III

Applicable Law Orphans’ courts were first established in Maryland by Ch. 8, Acts of 1777 (February session). 7 They were and are courts of limited jurisdiction. Crandall v. Crandall, 218 Md. 598, 600 , 147 A.2d 754, 755 (1959). Section 2-102(a) of the Estates and Trusts Art. provides: The court may conduct judicial probate, direct the conduct of a personal representative, and pass orders which may be required in the course of the administration of an estate of a decedent. It may summon witnesses.

The court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred. The limitation of jurisdiction applies to the Orphans’ Court for Montgomery County just as it applies to all other orphans’ courts. It is not changed by the fact that circuit court judges sit in the orphans’ court in that county. See n. 1, supra, and cases there cited.

See also Barter Systems v. Rosner, 64 Md.App. 255 , 494 A.2d 964 (1985). The practice of sending issues from an orphans’ court to a circuit court is also of ancient lineage. In 1798 the laws relating to orphans’ courts were comprehensively amended and expanded, and the power to transmit issues was expressly conferred. Ch. 101, III, ch. 15, s. 17, Acts of 1798.

The practice was apparently borrowed from the early chancery and ecclesiastical courts. Pegg v. Warford, 4 Md. 385, 393 (1853). See n. 5, supra. That practice involved taking testimony by secret written depositions, a method which did ³⁷⁴ not lend itself to the ready resolution of factual disputes.

See Phillips v. Phillips, 215 Md. 28, 38-39 , 136 A.2d 862 , 863-64 (1957) (concurring opinion of Bruñe, C.J.). As Blackstone explained, “if any matter of fact is strongly controverted, [the Court of Chancery] is so sensible of the deficiency of trial by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by jury ..and this was accomplished by sending issues to a law court. 3 W. Blackstone, Commentaries on the Law of England 452 (facsimile ed. 1979) (1st ed. 1768). See also Code, former Art. 16, § 39 (1957, repealed 1962); Code, former Art. 31A, § 9 (1957, repealed 1973) (both dealing with sending issues from equity court to law court for advisory jury verdict); and Md.Rule 2-511(d) (abolishing that practice). 8 While the transmittal of issues from equity to law is not now available in the trial courts of general jurisdiction, the ancient practice is still alive and well in the orphans’ courts. The present statutory provision is § 2-105(b) of the Estates and Trusts Art.: At the request of an interested person made within the time determined by the court, the issue of fact may be determined by a court of law.

When the request is made before the [orphans’] court has determined the issue of fact, the [orphans’] court shall transmit the issue to a court of law. An orphans’ court may not, however, send any issue of fact to a circuit court for determination. Because of the orphans’ court’s limited jurisdiction, it must first appear that the subject matter to which the fact relates is within the court’s jurisdiction. In Myers v. Hart, 248 Md. 443, 447 , 237 A.2d 41, 44 (1968), we explained that it [the transmission of issues] is a procedure availáble in all cases in controversy within the jurisdiction of the ³⁷⁵ orphans’ court for which no special provision has been made____ It is essential, however, that each issue meet [these] tests: (1) Does the orphans’ court have jurisdiction of the subject?

(2) Is the question properly before the orphans’ court? (3) Is the issue relevant and material to the question before the orphans’ court? [citation omitted]. See also Ades v. Norins, 204 Md. 267 , 103 A.2d 842 (1954); Fidelity Trust Co. v. Barrett, 186 Md. 483 , 47 A.2d 72 (1946); and Hill v. Lewis, 21 Md.App. 121 , 318 A.2d 850 (1974). These tests, of course, cannot be applied unless there are pleadings in the orphans’ court (such as a petition to caveat and an answer thereto) which demonstrate the existence of a factual controversy, that the controversy concerns a subject matter within the jurisdiction of the orphans’ court, and that the remaining elements of the Myers test are met.

See, e.g., Nugent, 277 Md. at 619-20, 356 A.2d at 552; Fidelity Trust Co., supra; see generally P. Sykes, Contest of Wills in Maryland § 23 (1941). The issues, moreover, must be issues of fact, susceptible to determination on a “yes or no” basis by a jury or other trier of fact. Section 2-105(b) of the Estates and Trusts Art. refers to “the issue of fact” and innumerable cases in this Court have emphasized that requirement. For example, in Nugent, 277 Md. at 619, 356 A.2d at 552, Judge Singley observed for the Court, “[i]ssues involve questions of fact in dispute between the parties, to be ascertained from the petition and answer, so framed that the jury can give but a single answer...” [citations omitted].

And we went on to hold that “[i]t is impermissible to submit an issue which poses a pure question of law...” because this is “unwarranted by § 2-105(b) of the Estates and Trusts Article....” Id. at 620, 356 A.2d at 552. In Myers, 248 Md. at 447 , 237 A.2d at 44 , we found defective issues that presented only a question of law. In Fidelity Trust Co., 186 Md. at 488-89 , 47 A.2d at 74 , we explained “[o]nly questions of fact which are properly in issue between the ³⁷⁶ parties in the Orphans’ Court should be sent to a court of law for trial____” In Forsythe v. Baker, 180 Md. 144, 149 , 23 A.2d 36, 38 (1941), we pointed out that it is the duty of the circuit court to submit issues to the jury “[u]nless [they] ... contain solely questions of law____” And in Dronenburg v. Harris, 108 Md. 597, 617 , 71 A. 81, 87 (1908), we said “a jury in civil cases cannot be required to pass upon questions of law; and it is the duty of the Circuit Courts to refuse to submit to the jury an issue that presents only a question of law.” As Dronenburg makes clear, the requirement that issues must be of fact, not law, applies whether the ultimate fact-finder is to be a circuit court jury or a circuit court judge sitting without a jury. It is also clear that once an orphans’ court has transmitted issues, it ordinarily cannot revoke, modify, or