Brewer v. Brewer

• Decision Date: 08 April 2005
• Docket Number: No. 67,67
• Citation: 386 Md. 183,872 A.2d 48
• Parties: Scott C. BREWER v. Walter L. BREWER, Jr., Personal Representative of the Estate of May C. Brewer.
• Court: Maryland Court of Appeals

872 A.2d 48

386 Md. 183

Scott C. BREWER v. Walter L. BREWER, Jr., Personal Representative of the Estate of May C. Brewer.

No. 67, September Term, 2004.

Court of Appeals of Maryland.

April 8, 2005.

Reconsideration Denied May 10, 2005.

Curtis C. Coon (John C. Schropp, Law Office of Curtis C. Coon, LLC, on brief), Towson, for petitioner. Michael B. Sauer (Keith L. Powell, on brief), Towson, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

WILNER, J.

The ultimate issue before us is whether the Orphans' Court for Baltimore County erred in denying a petition to reopen an Estate that had been closed for more than 20 months. In the Orphans' Court and in the Court of Special Appeals, a number of subsidiary questions were raised bearing on that issue, including whether the petition was timely. The only substantive question raised in the petition for certiorari was whether an agreement among all of the beneficiaries to distribute certain assets of the Estate in a manner different from that provided for in the testatrix's Will required submission to and approval by the Orphans' Court. We shall answer that question, as framed, in the negative, but, in order to resolve the case properly, we shall also have to address some other issues, including that of timeliness, as well.¹

BACKGROUND

Walter L. Brewer, Sr. founded a plumbing business, which he incorporated under the name Walter L. Brewer, Inc. After his death in 1986, the corporate stock was left to his widow, May, but the business, in its corporate form, was carried on by three of his five children — Walter, Jr., Brent, and Barry. May died in April, 1997; it is her Estate and her Will that are at issue here.

Walter, Jr. was appointed as personal representative of May's Estate. On October 1, 1997, he filed an Inventory of the Estate that, in addition to certain personal property, listed 13 items of real property, some of which consisted of multiple lots.² The real property represented the bulk of the value of the Estate. In her Will, May left the capital stock in the plumbing business to Walter, Jr., Brent, and Barry. She also specifically devised to those three sons, as tenants in common, four improved and two unimproved lots that were used in the plumbing business. The residue of the Estate was left to all five children — Walter, Jr., Brent, Barry, Scott, and May Engle — as tenants in common.

Several of the lots not specifically devised to the three sons were used, or reserved for possible future use, by the plumbing business. Some had been acquired by Walter, Sr. and May as tenants by the entireties prior to Walter, Sr.'s death and devolved to May as the surviving tenant; others were purchased by May, or at least in her name, after her husband's death. It also appeared that May had opened joint bank accounts with each of her children, with differing balances, of which the other children were unaware. In October, 1999, the five children, noting both the existence of those accounts and the fact that certain of the real property owned by their mother had been paid for and was being used by the corporation, entered into an Agreement of Distribution.

The Agreement provided, essentially, for two things. First, the amounts in the various joint savings accounts were to be pooled and, to the extent necessary, used to pay taxes and other expenses of the Estate, so that none of the Estate property would have to be sold, and any net balance, after paying those expenses, would be divided equally among the five children. Second, the real property used or reserved for use by the plumbing business would be deeded to the three sons running the business. To that latter end, the children agreed to two deeds, unsigned copies of which were attached to the Agreement. One conveyed the plumbing business lots, aggregated into ten parcels, to the three sons, as tenants in common, and the other conveyed the balance of the lots to the five children, as tenants in common. That distribution scheme, which provided for the conveyance to the three sons of lots that, under the Will, would have passed through the residuary clause to all five children, was obviously inconsistent with the Will.

Prior to the execution of the Agreement of Distribution, Walter, Jr. filed three administration accounts that showed income received and expenses paid by the Estate, but, as no distributions had occurred, none were reported. That was true as well with the fourth and fifth administration accounts filed after the Agreement was signed. The sixth (and final) administration account was filed by Walter, Jr., and approved by the court on January 2, 2001. That account, the approval of which effectively closed the Estate, did show the distribution of the Estate, and it showed the distribution of the real property in accordance with the Agreement, rather than in accordance with the Will. On December 29, 2000, contemporaneously with the filing of the final administration account, counsel for the Estate, Benjamin Turner, Esq., filed a fee petition with the court, in which he listed all of the work he had done. He noted in the petition that the sixth and final administration account had been prepared and that he had also prepared deeds for the distribution of real property in the Estate. On February 26, 2001, following approval of the final administration account, the two deeds implementing the Agreement were filed and recorded.

Copies of all of the administration accounts and a copy of the fee petition were sent to all five children. Scott claimed that he never received any of the administration accounts, although he admitted in testimony that he received copies of the orders approving those accounts. He never denied receiving a copy of the fee petition.

On October 24, 2002 — more than twenty months after the sixth and final administration account was approved and the Estate was closed, and eight months after the two deeds implementing the Agreement were recorded — Scott filed, in the Orphans' Court, a petition to reopen the Estate. Although he did not deny having signed the Agreement, he claimed, for the first time, that he signed it without having read it and "without an understanding as to [its] meaning and practical effect." His main complaints seemed to be that (1) the Agreement was never disclosed to the court and that the non-disclosure constituted a fraud on the court, (2) by not providing notice of the sixth administration account to Scott, Walter, Jr. breached his fiduciary duty to Scott and thereby allowed the court to approve the account without an exception from him, and (3) because of its inconsistency with the Will, the Agreement was void in any event. He asked that the Estate be reopened to allow for the filing of an exception to the sixth and final administration account and that the court direct that the Estate be distributed in conformance with the Will. No action was filed in the Circuit Court to declare the deeds invalid.

Walter, Jr., as personal representative, answered the petition and also filed a motion to dismiss it. Denying the substantive allegations, he asserted that, as the distribution in conformance with the Agreement was fully disclosed to the court in the sixth administration account, there was no fraud on the court, that Scott was well aware of all relevant facts, that copies of all documents, including the sixth administration account, had been mailed to him, and that his petition was untimely.

In testimony at a hearing on the petition, Scott said that, at the urging of Benjamin Turner, the attorney for the Estate, he signed the Agreement without reading it and without knowing that it altered the distribution scheme established in May's Will. He said that Mr. Turner had called him, arranged to meet him at a Holiday Inn about halfway between Baltimore and where Scott lived in Virginia, that they met in the parking lot of the motel, that the Agreement was placed on the hood of Turner's car, that he was asked to sign it, and that he signed it without reading it. Scott stated that he did not receive a copy of the Agreement until March, 2002, when he received a copy from the attorney then representing him,³ that he never received a copy of the two deeds, and that he would not have signed the Agreement "had the contents been explained to [him]." He asserted that he did not become aware of the contents of the deeds until October, 2002, notwithstanding that unsigned copies of them, in the same form, were attached to and approved in the Agreement.

Much of Scott's testimony was contradicted by Mr. Turner, by Walter, Jr., by Brent and Barry, and by various documents. Turner testified that he sent copies of all six administration accounts to all five children, including Scott. He said that he mailed a copy of the sixth administration account to Scott on December 29, 2000 at the Timonium post office and presented a Post Office certification showing the mailing of an item to Scott on that date. Walter, Jr., who was with Turner at the Post Office, confirmed that testimony. The receipt shows the correct street address and town in Virginia where Scott lived. Although there is a possible discrepancy with respect to the ZIP code stated on the Post Office certification (22013 or 22015, the last number not being entirely clear on the receipt), the item never came back as undelivered.

Turner also testified that Scott had, indeed, read the Agreement before he signed it and that he gave Scott an unsigned copy of the Agreement, to which copies of the two deeds were appended. He added that, when Scott got back into his car, "he had the papers in his hand." Turner confirmed that, on April 14, 2001, he sent a copy of the Agreement to Scott's attorney in response to the attorney's March 13, 2001 letter. With respect to the court's awareness of the Agreement, Turner testified that a copy of the Agreement was shown to the court auditor, although...