Wright v. Nugent

³³⁹ Orth, C. J., delivered the opinion of the Court. CASE SUMMARY This case comes to the Court of Special Appeals of Maryland directly from the Orphans’ Court for Talbot County (Orphans’ Court). Courts Art., § 12-501. Suzanne Walker Wright, appellant, the only child of Aldace Freeman Walker, deceased, noted an appeal on 8 May 1974 from an order of the Orphans’ Court issued 9 April 1974 in a proceeding entitled “Estate of Aldace Freeman Walker”, docketed as Estate No. 10850. 1 The order read: “The above matter coming on for hearing on the objections of Suzanne Walker Wright to the jurisdiction of this Court in the above matter and counsel for Suzanne Walker Wright, Elizabeth Irwin Hazard and George Ainslie Nugent having been heard, it is this 9th day of April 1974, by the Orphans’ Court for Talbot County ADJUDGED and ORDERED as follows: 1.

The largest part in value of decedent’s estate was located in Talbot County at the time of his death, as appears on the Inventory filed herein. 2 It is therefore determined that this Court has ³⁴⁰ jurisdiction to grant probate to any Will of the decedent, whether or not decedent was domiciled in Talbot County at the time of his death, in accordance with the Estates and Trusts Article, Annotated Code of Maryland including Sections 4-104 and 5-103 (A) and (B). 2. The pendency of proceedings in the United States District Court for District of Columbia does not affect the jurisdiction of this Court, the issue in the District being whether the holographic Will should be accepted for probate under the law of the District of Columbia, and the issue in this Court is whether the Will should be accepted for probate under the law of the State of Maryland. 3. Issues filed herein on March 4, 1974 by George Ainslie Nugent and on March 5, 1974 by Elizabeth Irwin Hazard, are hereby sent to the Circuit Court for Talbot County for determination in accordance with Estates and Trusts Article, Section 2-105.” We affirm parts (1) and (2) of the order. Part (3) is not before us, having been superseded by a subsequent order of the Orphans’ Court. 3 FACTS On 24 July 1973 the Register of Wills for Talbot County granted the will of Aldace Freeman Walker to probate under ³⁴¹ administrative probate proceedings and appointed George Ainslie Nugent personal representative of the estate.

Estates & Trusts Art., §§ 5-301, 5-302, 5-303. 4 The Administrative Probate Order was predicated upon a request for probate contained in a petition filed by Nugent. The petition showed that Walker, domiciled in the District of Columbia, died on 2 May 1973 at Arlington, Virginia, with a will dated 8 April 1973, appointing Nugent as executor. The will was holographic, written on a sheet from a yellow legal pad, and read as follows: “5236 Macomb Street, N.W. “Washington, D.C. “Sunday — April 8th, 1973 “I, Aldace Freeman Walker, being of sound and disposing mind and memory, do declare this to be my Last Will and Testament. “I desire and direct upon my death, that all my property, personal and real, of which I might die possessed be placed in a TRUST, the income of which is to be placed at the disposal of Elizabeth Irwin Hazard during the course of her natural life and that upon her death that the corpus of said TRUST be made payable to my grandson, Andrew Wright, or in the event of his demise to be made payable to my daughter, Suzanne Walker Wright. “I appoint George Ainslie Nugent to be the Executor of my Estate to serve without bond.” “Aldace Freeman Walker” Appended to the Petition was the affidavit of an attorney at law, admitted to practice before all the courts of the Commonwealth of Virginia. He asserted: “Under the laws of the Commonwealth of Virginia a will written wholly in the handwriting of the testator and signed by him is a valid will. ³⁴² Also there is no requirement under Virginia law that a will bear a seal.

Accordingly, if the will is written wholly in the handwriting of Aldace Freeman Walker and was executed by him in the Commonwealth of Virginia, it is my opinion that such a will is a validly executed will under the laws of the Commonwealth of Virginia.” There was also attached to the Petition the affidavit of Nugent, which, after discussing his friendship with Walker, Walker’s relationship with Mrs. Hazard and Walker’s state of health, recounted the circumstances of the execution of the will: “Mr. Walker had been giving serious thought and study to making a new testamentary disposition of his property and had concluded that the most acceptable solution for the purposes he had in mind would be a will leaving his property in trust, with the income to go to his friend Mrs. Hazard during her lifetime, and upon her death, the corpus to his grandson, Andrew Wright, the son of his daughter Suzanne Wright. The trust which Mr. Walker had in mind was quite a complicated one and would have taken considerable time to properly draft in order to take care of his detailed wishes. Accordingly, while in my apartment on Sunday evening, April 8, 1973, he decided out of an abundance of caution, to execute a will which would express his wishes on a stop gap basis. Before he came North on this particular visit, he had purchased and brought with him two books on trusts and wills entitled Who Will Get Your Money’ by John Barnes (William Morrow & Co., Inc. 1972) and ‘Your Will And What To Do About It’ by Samuel G. Kling (Wilshire Book Company, 1972).

He sat down at my dining room table and I watched him as he wrote out the holographic will. Mr. Walker signed the will which he had written in my presence without any witness attesting in writing to his signature.” ³⁴³ See Estates & Trusts Art., § 4-104. The affidavit stated that the will was left by Walker in Nugent’s care and, although Walker told Nugent several times that “he would come back and get the document so that it could be put in better shape”, Walker died before so doing. Insofar as Nugent knew, Walker never executed any other will subsequent to 8 April 1973.

The Petition discussed other proceedings regarding the decedent’s estate: “The decedent had two bank accounts in the District of Columbia at the time of his death; a savings account containing $5,759.95, and a checking account containing $1,106.33. The decedent had executed a prior will dated July 12, 1960; and this prior will, together with a copy of the holographic will dated April 8, 1973, have been filed with the Register of Wills in the District of Columbia. The decedent’s daughter (Suzanne Walker Wright) has filed a complaint praying that neither of these wills be admitted to probate in the District of Columbia. In view of the provisions set forth in Article 93, Section 4-104 and Section 5-103 (a), it was deemed that the facts as to the execution of the will and the bulk of the estate of the decedent at the time of his death indicated Talbot County, Maryland was the proper jurisdiction for the probate of the Last Will and Testament of the decedent, dated April 8,1973.” 5 Nugent duly qualified as personal representative. ³⁴⁴ On 17 January 1974 Suzanne Walker Wright, individually, and as natural guardian for her infant son, Andrew Wright, filed a petition for the removal of Nugent as personal representative and, on the same date, also filed a petition for judicial probate and a caveat, alleging the incompetence of the testator and undue influence exercised upon him. 6 Estates & Trusts Art., §§ 5-401 and 5-207.

This petition further alleged that the Orphans’ Court “has no jurisdiction to entertain original probate of either the July 12, 1960 executed carbon copy, the April 8,1973 unwitnessed writing, or any other writing made by Aldace Freeman Walker that may be discovered.” The Orphans’ Court conducted a plenary hearing on 6 March 1974 and on 9 April issued the order from which this appeal was taken. On 24 April 1974 Suzanne Walker Wright filed another petition for the revocation of the letters of administration and appointment of George Ainslie Nugent. The docket entries of the Orphans’ Court show under date of 3 May 1974 that the petition for revocation of letters of administration and appointment of Nugent was denied. ISSUES The basic question in this case concerns the jurisdiction of the Orphans’ Court to admit to original probate a will executed in Virginia by a person domiciled in the District of Columbia who died in Virginia owning property in Maryland.

As we see it, the only issue properly before us is whether the Orphans’ Court has jurisdiction to grant judicial probate to the paper writing of 8 April 1973. If it did, then, collateral to the issue is whether the Court was obliged to defer to proceedings in the District of Columbia. The law is that any action taken after administrative probate shall be final and binding as to all interested persons unless a request for judicial probate has been filed within 6 months of administrative probate. Estates & Trusts ³⁴⁵ Art., § 5-304 (a).

Section 5-402 (a) declares that a proceeding for judicial probate is mandatory when so requested by an interested person. Here appellant, as an interested person, made timely request for judicial probate. On 5 February 1974 the Register of Wills gave notice as prescribed by § 5-403 to all persons interested in the estate that “A Petition has been filed in this Court by Suzanne Walker Wright, individually and Suzanne Walker Wright, natural guardian of Andrew Wright, minor, 7 for judicial probate, including the appointment of a personal representative for said estate; and that said Petition will be heard at 1:00 P.M. on the 6th day of March 1974, or at such subsequent time or other place to which said hearing may be adjourned or transferred.” As far as we can determine from the transcript of the hearing held on 6 March 1974 it was not a hearing for judicial probate despite the notice. See Estates & Trusts Art., § 5-404.

Both the attorney for Nugent and the attorney for Elizabeth Irwin Hazard wondered about the purpose of the hearing. At one point Nugent’s attorney asked: “Could the Court instruct me as to exactly what it is that we are doing here. ... I am really at sea as to what we are doing . . . . Now I haven’t the vaguest idea of what the purpose is in taking the testimony [of Suzanne Walker Wright], but if the Court would tell me, I will know how to proceed.” The attorney for Hazard prefaced remarks to the Court by noting, “Inasmuch as I am not entirely sure as to what this proceeding is all about. . . .” The transcript does not reflect a clear answer by the Orphans’ Court but it is quite apparent from the order issued as a result of the hearing that the Court considered the hearing to be “. . . on the objections of Suzanne Walker Wright to the jurisdiction of this Court. . .” in the matter of the estate.

Patently the order did not encompass the appointment of a personal representative nor ³⁴⁶ did it expressly revoke, modify or confirm action taken at the administrative probate. Estates & Trusts Art., § 5-404 (a). We conclude that a judicial probate proceeding remains to be conducted, followed by appropriate determinations, appointments and orders. From the manner in which the hearing was conducted and the order issued pursuant to it, we are in accord with the view of the purpose of the hearing as suggested by Nugent’s attorney to the Orphans’ Court at the hearing: “The only question at this point before this Court is whether this Court has jurisdiction of the estate of Mr. Walker, and that is all.” We consider the hearing in that light.

As so viewed, the sole issue before us is the propriety of the determination below that the Orphans’ Court had jurisdiction over Walker’s estate. Appellant contends that the Orphans’ Court did not have “. . . jurisdiction or statutory power to grant original probate to the writing of a person domiciled outside of Maryland at the time of his death unless that person originally was domiciled in Maryland.” Appellee asserts that the Orphans’ Court had jurisdiction over the estate of Walker. The resolution of these divergent claims is to be found in Code, Art. 93, § 4-104, concerned with the execution of a will, and § 5-103, dealing with venue of the probate of a will. Whether appellant or appellee is right depends upon the meaning of these statutes.

The Execution Statute — Art. 93, § J^-lOU Under the early law, a will was eligible for probate only if it was executed in accordance with the law of the court to which it was offered and no personal representative had authority over the assets located outside of the territorial jurisdiction of the court appointing him. The lex locirei sitae governed the formal execution and validity of wills of real estate. Lindsay v. Wilson, 103 Md. 252, 265 . The early law of Maryland, Acts 1798, ch. 101, required that wills devising real property be in writing, signed by the party or someone in his presence and by his express direction, and be attested and subscribed in the presence of the devisor by three or four credible witnesses.

See Code, 1860, Art. 93, § 301. ³⁴⁷ Wills bequeathing personal property were not required to be witnessed. Acts 1884, ch. 293 changed the law. By that Act both wills devising real property and wills bequeathing personal property “were utterly void and of none effect” unless in writing, signed by the testator or by some other person for him, in his presence and by his express direction, and attested and subscribed in the testator’s presence by two or more credible witnesses. This is the law today.

Estates & Trusts Art., § 4-102. The same Act of 1884 also passed § 307 providing that “Every will and other testamentary instrument made out of this state by a citizen thereof shall be held to be valid, if the same be made according to the forms required by the law of the place where the same was made, or by the law of the place where such person was residing when the same was made, and the said will, when so executed, shall be admitted to probate in any Orphans’ Court of this State.” The statute thus altered the prior rule. Acts 1888, ch. 544 struck out the phrase “by a citizen thereof.” Acts 1894, ch. 151 substituted domicile for residence with respect to the validity of the will and added a provision with respect to the probate of a foreign will. The statute was repealed and reenacted with no substantive change by Acts 1914, ch. 238.

For seventy-five years, until 1970, the law was substantially as it ultimately appeared in the Code of 1957 as Art. 93, § 368: “Every will or other testamentary instrument executed without this State in the mode prescribed by law, either of the place where executed or of the testator’s domicile, or according to the forms required by the law of this State shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the law of this State, provided, said last will and testament is in writing and subscribed by the testator; and if the testator was originally domiciled in Maryland, although at the time of making the will or at the time of his death he may ³⁴⁸ be domiciled elsewhere, the said last will or testamentary instrument so executed shall be admitted to probate in any orphans’ court of this State; and when so admitted shall be governed by and construed and interpreted according to the law of Maryland, without regard to the lex domicilii, unless the testator shall expressly declare a contrary intention in said will or testamentary instrument.” The statute may be divided into two parts. The first part declared wills executed outside of Maryland to be valid if in accordance with the law of (1) the place where executed, or (2) the testator’s domicile, or (3) Maryland. The second part provided that a will valid under one of the tests specified in the first part, and made by a person “originally domiciled in Maryland”, shall be admitted to probate in Maryland, and, unless the testator expressly declared to the contrary, shall be construed according to Maryland law. Acts 1969, ch. 3, § 1 repealed most of Code, Art. 93, “Testamentary Law” and re-enacted the Article under the title “Decedents’ Estates”, effective 1 January 1970.

Section 4-104, concerning the execution of wills made outside of Maryland, provided: “A will executed outside this State shall be deemed to be properly executed if it is (i) in writing, (ii) signed by the testator, and (iii) executed in conformity with the provisions of § 4-102, or the law of the testator’s domicile, or the place where the will is executed.” 8 ³⁴⁹ Art. 93 was again revised by Acts 1974, ch. 11, effective 1 July 1974. Former Art. 93, § 4-104 appeared as Estates & Trusts, Art., § 4-104 with only stylistic changes. 9 When Art. 93 was revised in 1969, the Act was based upon the statutory proposal made by the Governor’s Commission to Review’ and Revise the Testamentary Law of Maryland. The proposal wTas set out, with comments, in the Commission’s Second Report, published in December 1968 and the Comments were revised by the Commission as was necessary in the light of changes made during the passage of the law. The Comment to § 4-104 begins: “This Section is in accord with former § 368, and no substantive change is intended except that the description of the act of the testator has been changed from ‘subscribed’ to ‘signed’ in order to be consistent w’ith Section 4-102.” It is true that in enacting § 4-104 no substantive change was made with respect to the first part of former § 368, but the second part of the section was completely eliminated.

The provisions concerning the probate and the construction of a will of a testator “originally domiciled in Maryland” simply disappeared from the law. The eliminated part was not resurrected in the 1974 revision. The Revisor noted, “A slight change is made in style.” This is, of course, correct when the new section is compared with former § 4-104 of Art. 93, but that part of old § 368 relating to probate of a will of a testator “originally domiciled in Maryland” did not reappear. In the Estates & Trusts Article, however, the Comment to former Art. 93, § 4-104 was repeated with respect to the new § 4-104. ³⁵⁰ The Venue Statute — Art. 93, § 5-103 Acts 1862, ch. 155 provided: “Any Will or Codicil may be proved in a county or city, wherein letters testamentary or of administration may be granted.” As codified in Art. 93, § 356 (1939) it became “Any will or codicil may be proved in any county or Baltimore City wherein letters testamentary or of administration may be granted.” It remained the law until 1949 when Acts 1949, ch. 506 amended it, making clear that wills of both residents and non-residents of the State could be so proved and adding a clause pertaining to pending probate proceedings at the domicile.

It appeared as § 374 of Art. 93 in the 1957 Code: “Any will or codicil of a resident or non-resident of this State may be proved in any county or Baltimore City wherein letters testamentary or of administration may be granted; but the court, if notified that proceedings for probate at the domicile are pending, may, in its discretion, postpone action upon the application for the original probate of a will or codicil of a decedent not domiciled in the State of Maryland at the time of his death until the court at the domicile has acted.” Section 18 of Art. 93 spelled out where letters of administration may be granted: “Whenever any person shall die intestate, leaving in this State personal estate, letters of administration may forthwith be granted by the orphans’ court of the county wherein was the party’s mansion house or residence; or in case he had no mansion or residence within the State, letters shall be granted in the county where the party died; and in case the party neither had mansion or residence nor died within this State, letters may be granted in the county wherein lies or is supposed to lie a considerable part of the party’s personal estate.” ³⁵¹ The revision in 1969 patterned a new § 5-103 generally after §§18 and 374: “(a) Proper county. —The venue for administrative or judicial probate shall be in the county in which the decedent had his domicile at the time of his death, or, if the decedent was not domiciled in Maryland, the county in which the