Thomason v. Bucher

Foster, J., delivered the opinion of the Court. The single issue presented on this appeal is whether the filing of a motion for rehearing on a decision and order of the Orphans’ Court tolls the running of the statutory period within which an appeal for trial de novo in the Circuit Court must be filed. Bruner Rose Thomason, who died in Prince George’s County, Maryland, on January 5, 1970, left a will, duly admitted to probate, by which he provided for equal distribution of his estate to his two children, Jerry Rose Thomason, an adult son, and Linda Sue Thomason, a minor, and nominated Della Mae Bullabough (Della) as Executrix. Della renounced the appointment and the appellant, Harry E. Thomason, the decedent’s brother, was appointed personal representative by the Orphans’ Court.

Appellee, James R. Bucher, was named guardian ad litem for the minor daughter. The first administration account filed by the personal representative set aside as the widow’s statutory share, Md. Code (1957, 1969 Repl. Vol.) Art. 93, Sec. 3-102 (1), one-third of the net estate for Della, designating her as the decedent’s surviving spouse. Appellee filed exceptions to the account alleging that decedent was unmarried at the time of his death and praying that distribution be made in accordance with the provisions of the will.

A hearing on the exceptions was held in the Orphans’ Court ³ on March 12, 1971. Appellant introduced evidence which tended to show, in the words of the Orphans’ Court opinion, “that some, if not all, of the elements of a ‘common law marriage’ existed between the parties.” The opinion noted that a common law marriage may not be contracted in Maryland, but that a marriage, if valid where contracted, is recognized as valid in Maryland unless it is contrary to the public policy of the State of Maryland. The Orphans’ Court found, however, that appellant had not given notice required under the provisions of the Uniform Judicial Notice of Foreign Law Act, Md. Code (1957, 1971 Repl. Vol.) Art. 35, Sec. 50, in order to invoke the benefits of foreign law to establish that a valid common law marriage was contracted while the parties were domiciled outside of Maryland.

Appellee’s exceptions were therefore sustained by the Orphans’ Court in an order dated April 30, 1971. On May 11, 1971, appellant moved for reconsideration of the opinion and order. The motion was denied without formal hearing in an order dated June 11, 1971. Subsequently, the personal representative filed on July 1, 1971, a “revised first account,” identical in substance to the first account, except that it was accompanied by a memorandum in which appellant sought to give notice under Art. 35, Sec. 50, that he intended to rely upon the marriage laws of the District of Columbia.

Appellee filed a motion ne recipiatur to the revised first account and memorandum on the grounds that the Orphans’ Court by its order of April 30, 1971, had found that Della was not entitled to share in the estate and that the revised first account was not in accordance with the decedent’s will. The Orphans’ Court signed an order on July 28, 1971, granting appellee’s motion ne recipiatur and rejecting the revised first account. From this order the appellant, on August 27, 1971, filed an appeal to the Circuit Court for Prince George’s County for trial de novo pursuant to Md. Code (1957, 1968 Repl. Vol.) Art. 5, Secs. 25 and 26.

When the case was called for trial on November 23, 1971, Judge McCullough found that the April 30,1971 order of the Orphans’ ⁴ Court sustaining the exceptions filed by the appellee was a final order and, as such, triggered the running of the thirty-day period within which an appeal under Art. 5, Sec. 26 must be filed. Judge McCullough rejected the appellant’s contention that the motion for reconsideration stayed the running of the appeal period. He dismissed the appeal as not having been filed within thirty days of the final order of the Orphans’ Court. The personal representative urges that “in order to promote the ends of justice and to avoid further litigation,” the thirty-day appeal period in “unusual probate circumstances” should not be rigidly applied and the appeal for trial de novo in this case should be held as having been timely entered.

It is, however, for these very reasons, to promote justice and to end litigation, that adherence to the requirement established by Art. 5, Sec. 26 of the Code and by decisions of this Court must be maintained. The appellant’s argument ignores not only the letter but the spirit of the law. Were casual