Castruccio v. Estate of Castruccio

• Decision Date: 29 September 2016
• Docket Number: No. 1665,Sept. Term, 2014,1665
• Citation: 146 A.3d 1132,230 Md.App. 118
• Parties: Sadie M. Castruccio v. The Estate of Peter Adalbert Castruccio, et al.
• Court: Court of Special Appeals of Maryland

230 Md.App. 118

146 A.3d 1132

Sadie M. Castruccio

v.The Estate of Peter Adalbert Castruccio, et al.

No. 1665

Sept. Term, 2014

Court of Special Appeals of Maryland.

September 29, 2016

Argued by: Kenneth B. Frank, Baltimore, MD (Ronald H. Jarashow, Gormley, Jarashow Bowman, LLC, Annapolis, MD) on the brief, for Appellant.

Argued by: Frederick Franke, Annapolis, MD (Robert H.B. Cawood, Cawood & Cawood, LLC, Annapolis, MD and Sale D. Stiller, Brett Ingerman, Melissa L. Mackiewicz, DLA Piper LLP (US) Baltimore, MD) on the brief, for Appellee.

Panel: Kehoe, Nazarian, Arthur, JJ.

Arthur, J.^*

A testator put his signature on page 5 of a six-page will that had consecutive pagination, consecutive paragraph-numbering, and a single, uniform font and typeface. The witnesses signed on page 6. The will's six pages may or may not have been physically attached to one another by a staple at the time of signing.

Relying on a 1921 case that invalidated a one-page will because the witnesses did not sign the will itself, but a separate document that was not physically attached to it,¹ the testator's widow challenged the will. The Circuit Court for Anne Arundel entered summary judgment against the widow. We affirm.

BACKGROUND

A. The Purported Will

Dr. Peter Castruccio died on February 19, 2013, at the age of 89. He had run various businesses over the decades and, with his wife of 60 years, owned numerous pieces of income-producing real estate. The couple had no children.

John R. Greiber Jr. had been Dr. Castruccio's attorney for many years. In November 2010, Mr. Greiber deposited Dr. Castruccio's six-page will, dated September 29, 2010, for safekeeping with the register of wills. The will revoked all prior wills and codicils, including a 2008 will that Dr. Castruccio had signed.

In February 2013, a week after Dr. Castruccio's death, Mr. Greiber petitioned the register of wills to probate the 2010 will and a brief codicil thereto. Soon thereafter, those documents were admitted to probate in the orphans' court.

The will, which we reproduce in the appendix to this opinion, leaves cash bequests in varying amounts to Darlene Barclay (a longtime employee of Dr. Castruccio) and to two other persons. Item 8 of the will leaves the “rest and remainder” of the estate to Mrs. Castruccio, provided that she survives Dr. Castruccio and that “she has made and executed a will prior to [Dr. Castruccio's] death.” Item 10, titled “Residuary Clause,” states that if Mrs. Castruccio “does not have a valid will filed with the Register of Wills of Anne Arundel County dated prior to” Dr. Castruccio's will, “all the rest and residue of” of the estate shall go to Darlene Barclay.²

The will's six pages are consecutively numbered as pages 1 of 6, 2 of 6, etc., through 6 of 6. After two brief, introductory paragraphs, the will contains 11, consecutively numbered “Items” or paragraphs, several of which contain consecutively numbered subparagraphs. The font and type-size are consistent throughout the document.

On page 5 of 6 of the will, Dr. Castruccio signed his name. A few spaces below the signature, the following words appear: “SIGNED, SEALED, PUBLISHED AND DECLARE [sic], BY PETER ADALBERT CASTRUCCIO.”

Farther down, the last two lines of page 5 of 6 read: “The above named individual, does declare for his Last Will and Testament this instrument, have hereunto subscribe[d] to have witness[ed] on the date last mentioned above , and at the location, and [....]” (Bold in original.) Below that awkward language appears the pagination, which reads “5 of 6.”

The next, and last, page appears to be a continuation of the language at the bottom of page 5 of 6, because it is not separated from that language by a period, semi-colon, or other punctuation mark. It reads: “I do hereby attest that the testator to be [sic] of sound mind, fully able to understand this instrument, and the testator voluntarily and freely did sign same.” Below these words are the names, printed and signed, of Mr. Greiber; his daughter, Samantha Greiber; and Darlene Barclay's daughter, Kim Barclay. No other text appears on that last page other than the pagination, which, in culmination of the sequence of pages before it, reads “6 of 6.”

B. The Petition to Caveat

By the time of Dr. Castruccio's death, Mrs. Castruccio had not filed a valid will with the register of wills. Under Mr. Greiber's interpretation of the terms of Dr. Castruccio's will, the residue of the estate would pass not to Mrs. Castruccio, but to Darlene Barclay.

Faced with the prospect that she might receive nothing under her late husband's will if Mr. Greiber's interpretation prevailed, Mrs. Castruccio filed a petition to caveat in the orphans' court. As a defendant, she named her late husband's Estate.³

Later, Mrs. Castruccio successfully petitioned to transmit seven issues to the circuit court for trial. See Md. Code (1974, 2011 Repl. Vol.), § 2–105(b) of the Estates and Trusts Article (“ET”). Denominated as Issues A through G, those issues were:

(A) whether Dr. Castruccio executed the 2010 will;

(B) whether Dr. Castruccio executed the 2010 will with the intention that it should constitute his last will and testament;

(C) whether all of the pages of the 2010 will are the genuine pages that Dr. Castruccio believed to comprise the will that he intended to execute;(D) whether the will was procured by undue influence;

(E) whether the will was procured by fraud;

(F) whether the will was actually attested and signed by credible witnesses in Dr. Castruccio's presence; and(G) whether the contents of the will were read by and known to Dr. Castruccio at and before the time of the execution of the will on September 29, 2010.

C. The Motions for Summary Judgment

The Estate moved for summary judgment. Darlene Barclay, who intervened as a co-defendant, submitted a memorandum stating that she adopted the reasoning in the Estate's motion.

Mrs. Castruccio opposed the motion. In addition, she filed a cross-motion for summary judgment as to Issue F, which concerned whether the will was actually attested and signed by credible witnesses in the testator's presence.

1. Issue F

In support of her cross-motion, Mrs. Castruccio argued that the Estate failed in its initial burden to present prima facie evidence that the document was validly executed. She relied principally on Shane v. Wooley , 138 Md. 75, 113 A. 652 (1921), which had upheld the invalidation of a one-page will because the witnesses' signatures did not appear on the will itself or on a document that was physically attached to it.

Citing Shane, Mrs. Castruccio argued that the witnessing or attestation was invalid, (a) because the witnesses did not sign on the same page as Dr. Castruccio, and (b) because the page containing the witnesses' signatures was not “physically connected” to the page on which Dr. Castruccio had signed his name. Although the statutory provision on attestation requires only that a will be “attested and signed by two or more credible witnesses in the presence of the testator,”⁴ Mrs. Castruccio argued, in substance, that Shane adds a kind of judicial gloss, under which the pages must be affixed to one another if the witnesses and testator do not sign on the same page.

Mrs. Castruccio presented the affidavit of her attorney, who declared that one month after the document (and its codicil) were admitted to probate, he inspected it at the register of wills, where it had been on file since November 2010. He said the document was comprised of “six separate, unattached pages,” without any staples, “staple holes or other evidence of having ever been physically connected together[.]” The register made a scanned copy of the original document, which Mrs. Castruccio appended to her motion. Mrs. Castruccio also presented the affidavit of the register of wills, who stated that her office's scanner was accurate enough to capture and depict the image of staple holes.

In response, the Estate disputed Mrs. Castruccio's assertion that page 6 of 6 (containing the witnesses' signatures) was not affixed to page 5 of 6 (containing Dr. Castruccio's signature) at the time when it was signed. In addition, the Estate argued that, even assuming that the pages were not affixed to each other at that time, mechanical attachment was not required under Maryland law. It contended that the two pages could be sufficiently connected where they appear to be internally connected as a single instrument.

2. The Estate's Motion on the Remaining Issues

As to the remaining issues, the Estate argued that the document was indisputably valid, because Dr. Castruccio signed it in the witnesses' presence, and because the witnesses, aware of the document's contents, each signed their names in his presence. The Estate pointed to the affidavits of Mr. Greiber, Ms. Greiber, and Kim Barclay. Each of those affiants averred that Dr. Castruccio signed the document in their presence and announced that it was his last will and testament. Each of the affiants also averred that Dr. Castruccio “was of sound mind, fully able to understand the paper he was signing, and [that] he did voluntarily and freely sign his name to it.”

The Estate argued that the document carried a presumption of due execution, based on the presence, spanning pages 5 of 6 and 6 of 6 of the document, of an “attestation clause” reciting that the required elements of a validly executed will were satisfied. This clause, the Estate argued, was itself prima facie evidence of the will's presumed validity, which shifted the burden to Mrs. Castruccio to demonstrate, by clear and convincing evidence, that the facts recited in that attestation clause were not true. See, e.g. , Van Meter v. Van Meter , 183 Md. 614, 618, 39 A.2d 752 (1944) ; see also McIntyre v. Saltysiak , 205 Md. 415, 420–21, 109 A.2d 70 (1954).

Mrs. Castruccio responded that the document contained “multiple additional irregularities” that raised questions about its validity. She questioned the witnesses' credibility and “the role that Darlene [...