Villarreal v. Glacken

¹¹⁸ BLOOM, Judge. These consolidated appeals involve the estate of Christina Villarreal, who died January 7, 1973. She was survived by her five minor children: Debra, Abigail and Michael Villarreal, the appellants herein, and their half siblings, Mark and Melissa Glacken. 1 Appellants’ father, Jorge Villarreal, had died in 1967. The appellee, John F. Glacken, is the father of Mark and Melissa.

He had resided with Mrs. Villarreal during the last years of her life. Appeal No. 1082 is from an order of the Orphans’ Court of Frederick County, passed September 19, 1984, which rescinded a prior order of June 11, 1984. The June order had set aside the probate of Mrs. Villarreal’s estate; dismissed appellants’ Petition to Set Aside Judicial Probate; and affirmed and ratified the administration of Mrs. Villarreal’s estate, which had been closed some ten years earlier. Appeal No. 1185 is from an order of the Circuit Court for Frederick County (Wenner, J.) dismissing, without further leave to amend, appellants’ “Third Amended Bill of Complaint,” which had sought various forms of equitable and legal remedies (injunctions, accountings, declaratory judgments, specific performance, and money judgments) to recover, among other things, shares of Mrs. Villarreal’s estate that appellants claim should have descended to them as heirs but which were fraudulently acquired by appellee through an invalid will.

If there is any truth in appellants’ allegations, they have been greatly wronged. Nevertheless, we must affirm the decisions of the orphans’ court and the circuit court because it is obvious, on the face of their pleadings, that appellants have slept on their rights and have unreasonably delayed in seeking judicial relief for any wrongs that may have been done them. ¹¹⁹ NO. 1082 — THE ORPHANS’ COURT CASE A. The Will On April 10, 1973, there was presented to the Register of Wills of Frederick County, for administrative probate as the Last Will and Testament of Christina Villarreal, a one page handwritten document dated and signed January 6, 1973, the day before Mrs. Villarreal died. The will had been written in Mrs. Villarreal’s hospital room by Ralph G. Hoffman, an attorney employed by the appellee. The document read: I, Christina Villarreal, do hereby make this my Last Will and Testament.

I give, devise and bequeath all my property, real, personal and mixed unto John F. Glacken, absolutely, hereby appointing him as Personal Representative to serve without giving of bond. Witness my hand and seal this 16th day of January, (her mark) _X_(SEAL) Christina Villarreal Signed, sealed, published and declared by the above named testatrix as and for her Last Will and Testament in the presence of us, who, at her request and in the presence of each other have subscribed our names as witnesses this 16th day of January, 1973. Address Hudson Fesche, M.D._ Westminster, Md._ Ralph G. Hoffman_ Westminster, Md._ Mrs. Villarreal, terminally ill with cancer and too weak and too heavily sedated to write her name, had signed the document with an X mark. B. The Proceedings The Register of Wills denied administrative probate and referred the papers to the orphans’ court with a recommendation for judicial probate.

The court granted probate and ¹²⁰ appointed appellee Personal Representative of Mrs. Villarreal’s estate. In that capacity, Mr. Glacken conveyed to himself the real estate owned by Mrs. Villarreal at the time of her death, which she had purchased with the proceeds of her husband’s estate. Mrs. Villarreal’s estate was closed February 6, 1974. On April 2, 1984, appellants, purporting to act for their minor half siblings as well as for themselves, petitioned the orphans’ court to set aside the probate of their mother’s estate.

They asserted that the probate was void because no notice was given them, as interested parties, as required by Md.Est. & Trusts Code Ann., § 5-403(a); because, contrary to § 5-404, the court neither conducted an examination of the subscribing witnesses nor passed an order waiving such examination; and because the purported will was not properly executed or witnessed, the testatrix lacked testamentary capacity, and the will was contrary to her intentions. They also alleged that the personal representative and sole beneficiary, by fraud and duress, concealed from them all of the defects in the will and the probate proceedings so that they did not have knowledge of those defects until December 1983. C. The Decision After a hearing on that petition, the orphans’ court passed an order nullifying the probate. Subsequently, however, after two more hearings and upon a motion by the appellee, it voided that order and reinstated and affirmed the original probate proceedings.

In so doing, the orphans’ court stated: The above matters having been heard by the Court on the 14th day of May, 1984, the 15th day of August, 1983, and the 17th day of September, 1984. Counsel for the respective parties being present and all arguments of Counsel having been heard by the Court, it is the opinion of this Court that: 1) The records of this Court disclose that a hearing was held in this Court prior to the granting of the judicial ¹²¹ probate in the Estate of Christina Villarreal, deceased, and that all parties in interest, or their respective custodians, were aware of the proceeding for judicial probate. 2) That there was a proper appointment of a Personal Representative in the Estate of Christina Villarreal, deceased, in accordance with the Estates and Trusts Laws of the State of Maryland. 3) Sections 5-406 and 5-407 of the Estates and Trusts laws of the Annotated Code of Maryland provide: “Section 5-406. Finality of action in judicial probate. Except as provided in §§ 5-207 and 5-407, any determination made by the court in a proceeding for judicial probate is final and binding on all persons---- Section 5-407.

Subsequent proceeding. A judicial probate may be reopened and a new proceeding held if, following a request by an interested person within 18 months from the death of the decedent, the court finds the existence of any fact which would permit the holding of a proceeding pursuant to § 5-304(b)____” 4) That the Court is of the opinion that Sections 5-406 and 5-407, Estates and Trusts, is [sic] dispositive of the issue of the reopening of the estate of Christina Villarreal, deceased, and that consequently, no law or evidence having been presented to the contrary, the Petition seeking a reopening of this estate should be denied. D. The Issues Appellants have asserted a total of eleven issues, of which three relate to the orphans’ court proceedings. Those issues, as framed by appellants, are: 1.

Is the orphans’ court required to hear testimony from witnesses to a will to determine the testamentary capacity of the decedent in accordance with Md. [Est. & Trusts] Code Ann. Sec. 5-404 before granting judi ¹²² cial probate where testamentary capacity was in issue? 2. Can the children of the decedent have their day in court where the orphans’ court neglected to notify them of the probate of their mother’s will, and [sic] which resulted in the loss of the children’s family home to an imposter? >h sjt at * # # 5. Where a holographic will has been denied administrative probate and where there was a failure to hold a hearing, a failure to call witnesses to a will, and failure to waive the calling of witnesses to the will, and where interested persons have not been notified of the judicial probate, is a purported judicial probate of the will a nullity so that the statute of limitations begins to run when the defects in the judicial probate are discovered? E. The Record The record supports the court’s findings that there was a hearing prior to probate, that all interested parties or their custodian were aware of the probate, and that there was a proper appointment of a personal representative under the Maryland Code.

There does not appear to have been any formal hearing, but the court had before it a copy of a letter from Mr. Hoffman to the effect that both he and the other subscribing witness, Mrs. Villarreal’s physician, were satisfied that Mrs. Villarreal had sufficient capacity to execute a will and that the will in question reflected her testamentary intentions. The record reflects that the Register of Wills had received from Mr. Glacken a list of interested parties and heirs (Mrs. Villarreal’s children) as required by §§ 5-403 and 7-104. Although there is nothing to indicate that the Register then mailed notices to those heirs and interested parties of the application for judicial probate or the appointment of appellee as personal representative, which would normally be required by §§ 2-210 and 5-403(a), such mailings were not essential in this case ¹²³ because, according to the personal representative, the heirs and interested parties were all minors residing with him. Under § l-103(d), notice to the children, therefore, would have been mailed to Glacken as their custodian, but there was no need to send him notice because he was the personal representative. § l-103(e).

In short, the court acted in accordance with its statutory jurisdiction in probating Mrs. Villarreal’s will; if appellants were not notified, that was the fault of the personal representative, not the court. F. Finality of Probate The issues raised by appellants do not address the basis for the orphans’ court’s decision, which is the finality of judicial probate after eighteen months from the date of the decedent’s death. On that point, the court was absolutely right. Sections 5-406 and 5-407, in conjunction with § 5-304(b), are dispositive of the issue.

Section 5-304(b) of the Estates and Trusts Article, incorporated by reference in § 5-407, provides: (b) Exceptions. — An administrative probate may be set aside and a proceeding for judicial probate instituted if, following a request by an interested person within 18 months of the death of decedent, the court finds that: (1) The proponent of a later offered will, in spite of the exercise of reasonable diligence in efforts to locate any will, was actually unaware of the existence of a will at that time of the prior probate; (2) The notice provided in § 2-209 [§ 2-210] was not given to such interested person nor did he have actual notice of the petition for probate; or (3) There was fraud, material mistake, or substantial irregularity in the prior probate proceeding. The statutory scheme is clear and unequivocal. All determinations in proceedings for judicial probate are final and binding, but probate may be reopened at the request of an interested party if (a) a later will is found, (b) the moving party had not received notice of probate, or (c) there was ¹²⁴ fraud, mistake or irregularity in the probate proceedings, provided the request to reopen probate is made within eighteen months after the death of the decedent. Section 5-407 is not a statute of limitations.

It does not merely bar an action that is not timely brought; its commencement is not delayed by fraud, concealment or lack of knowledge; it is not tolled by infancy or other disability. It is, instead, a limitation on the court's jurisdiction. At the expiration of eighteen months from the death of the decedent, the orphans’ court no longer has any power or authority to reopen probate; even at the request of one who was entitled to but did not receive notice; even for fraud, mistake or irregularity. After the eighteen month period, one claiming to have been cheated out of his inheritance, by an invalid will, improper probate, or otherwise, must seek redress in some other tribunal. 2 NO. 1185 — THE CIRCUIT COURT CASE A. Appellants’ Issues The appellants present us with eight issues relating to their appeal from the order of the Circuit Court for Frederick County dismissing their “Third Amended Bill of Complaint” without leave to amend.

We will not reproduce them here. They are replete with redundancies, and only one of them directly addresses a basis for the court’s action. Appellants’ issues Nos. 3, 4, 6 and 7 involve questions as to when the statute of limitations begins to run with respect to trusts when there are allegations of fraudulent concealment of the fraud giving rise to the trust. Issue No. 8 questions whether “duress and threats of duress” toll the running of limitations; issue No. 9 questions the propriety of rulings on demurrers to the original, amended and second amended bills of complaint; issue No. 10 questions the court’s refusal ¹²⁵ to permit further amendment; and issue No. 11 questions the dismissal of a malpractice claim (one of the counts in the “Amended Bill of Complaint”) against Mr. Hoffman, the attorney who drafted Mrs. Villarreal’s will.

B. Issues 9 and 11 Before discussing the real issues in this case, we will summarily dispose of appellants’ issues Nos. 9 and 11. If we appear to give these issues but short shrift, it is because that is all they merit. The court sustained demurrers to the original, amended and second amended bills of complaint with leave to amend. Each time appellants filed an amended complaint that was complete in itself, without reference to the complaint that preceded it, they withdrew and abandoned the prior complaint.

Shapiro v. Sherwood, 254 Md. 235 , 254 A.2d 357 (1969). The rulings on demurrers to the first three bills of complaint, which included the malpractice claim against Mr. Hoffman, therefore, are not before us. Landay v. Cohn, 220 Md. 24, 27 , 150 A.2d 739 (1959). We will now address the real issues in this case, which are whether the court erred in sustaining appellee’s motion to dismiss appellants’ “Third Amended Bill of Complaint” and, if not, whether the court abused its discretion by refusing to permit further amendment.

C. The Third Amended Bill of Complaint - 1. Form - Appellee’s attack upon the “Third Amended Bill of Complaint” was based entirely upon its failure to assert a claim upon which relief might be granted. No objection was voiced as to its form. Nevertheless, before discussing the substantive deficiencies of appellants’ fourth attempt to state a cognizable cause of action, we deem it appropriate to comment on the form of the pleading.

The original, amended and second amended bills of complaint were all filed prior to July 1, 1984, the effective date of the new, revised Maryland Rules of Procedure, which eliminated the distinctions between actions in law and equi ¹²⁶ ty. The “Third Amended Bill of Complaint” came under the new rules. There is now only one form of action, a civil action, Md. Rule 2-301, which begins with a “complaint,” Md. Rule 2-302, not a “bill of complaint.” Each cause of action must be set forth in a separate count, Md. Rule 2-303(a), and each averment should be simple, concise and direct, containing only such statements as may be necessary to show entitlement to relief. Md. Rule 2-303(b).

Appellants’ pleading consisted of forty-four numbered paragraphs of redundant allegations and thirteen separately lettered requests, prayers or demands for relief, many of which were inconsistent with each other, but was not separated into counts. This defect is particularly difficult to understand because the original bill of complaint and the first amended bill, filed in equity, were both divided into counts, which was traditionally inappropriate for equity pleading. - 2. Substantive Defect — Limitations/Laches - Appellee’s response was a Motion to Dismiss, under Md. Rule 2-322(b), 3 which the court granted. Relying on Piper v. Jenkins, 207 Md. 308, 319 , 113 A.2d 919 (1955), the court stated, as its sole reason for granting appellee’s motion to dismiss, that appellants, for the fourth time, had failed to set forth, with particularity, the reason why the statute of limitations should not apply.

The complaint did not say how appellants were kept in ignorance of their rights by