Cunninghame v. Cunninghame

• Citation: 364 Md. 266,772 A.2d 1188
• Decision Date: 11 May 2001
• Docket Number: No. 109,109
• Parties: Elliott CUNNINGHAME, Personal Representative of the Estate of Elizabeth Cunninghame, v. Todd Samuel CUNNINGHAME and Christina Gwynne Cunninghame, Co-Personal Representatives of the Estate of Ferguson Cunninghame.
• Court: Court of Appeals of Maryland

772 A.2d 1188

364 Md. 266

Elliott CUNNINGHAME, Personal Representative of the Estate of Elizabeth Cunninghame, v. Todd Samuel CUNNINGHAME and Christina Gwynne Cunninghame, Co-Personal Representatives of the Estate of Ferguson Cunninghame.

No. 109, Sept. Term, 2000.

Court of Appeals of Maryland.

May 11, 2001.

Reconsideration Denied June 21, 2001.

David A. Skomba (Franklin & Prokopik, on brief), Baltimore, for petitioner.

Richard E. Hagerty (Bradford S. Bernstein of Miles & Stockbridge P.C., on brief), Rockville, for respondents.

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

CATHELL, Judge.

Elliott Cunninghame, executor for the estate of Elizabeth Cunninghame,¹ petitioner, filed a claim against the estate of Ferguson Cunninghame. The claim was denied by the co-personal representatives.² A Petition for Allowance of Claim was filed in the Orphans' Court for Montgomery County. The Orphans' Court disallowed the Petition for Allowance of Claim, finding that the claim was barred by the limitation on presentation of claim statute codified in Maryland Code (1974, 2001 Repl. Vol.), section 8-103 of the Estates and Trusts Article.³

Petitioner filed an appeal to the Court of Special Appeals. In affirming the judgment of the Orphans' Court, that court held that petitioner failed to prove his claim before the Orphans' Court; therefore, petitioner had failed to prove that the Orphans' Court committed prejudicial error by disallowing petitioner's claim because it had not been filed within six months. Petitioner has presented two questions for which we granted certiorari:

I. Did the Trial Court err by finding that the claim of the Estate of Elizabeth Cunninghame against the Estate of Ferguson Cunninghame was time barred?

II. Did the Court of Special Appeals err in applying the doctrine of harmless error and in not addressing the timeliness/presentment issue?

We answer no to question I. We hold that a claim was not presented by Elizabeth Cunninghame or the estate of Elizabeth Cunninghame within the "Limitation on presentation of claim." period codified at Md.Code (1974, 2001 Repl. Vol.), section 8-103 of the Estates and Trusts Article. We therefore affirm the decision of the Orphans' Court for Montgomery County. Because we answer question I in the negative, we need not directly resolve question II, although it will be the subject of some discussion.

I. Facts

Ferguson Cunninghame (hereinafter Ferguson) died on July 5, 1998. Elizabeth Cunninghame died on August 11, 1998. On September 9,1998, the Last Will and Testament of Ferguson Todd Cunninghame was filed with the Register of Wills for Montgomery County. The will, which was executed on October 28, 1977, nominated and appointed Ferguson's former wife, Donna Rae Holt Cunninghame (hereinafter Donna) to serve as personal representative of his estate. If Donna was unable to serve, then the will nominated and appointed Ferguson's friend, Benjamin Baird, Jr., to serve as personal representative of his estate. When the will was filed on September 9, 1998, a Renunciation and Consent to Appointment of Co-Personal Representatives was also filed. The Renunciation and Consent to Appointment of Co-Personal Representatives stated that Donna and Benjamin Baird, Jr., renounced their right to serve as personal representative of Ferguson's estate and asked that

Ferguson's surviving children, Christina Gwynne Cunninghame (hereinafter Christina) and Todd Samuel Cunninghame (hereinafter Todd), be appointed co-personal representatives. The estate of Ferguson was opened on the same date.

On or around July 14, 1998, Todd, who at that time was neither a personal representative of the estate of Ferguson, nor named in Ferguson's will as a personal representative, commented to his aunt, Elizabeth Ferguson (hereinafter Elizabeth), that she send to him "any bills incurred while my father was in the hospital." Elizabeth sent a letter dated July 24, 1998 (the letter) to Ferguson's former wife, Donna, and to his son, Todd. The letter stated:

Enclosed are the statements that were obligations that Ferg couldn't handle while he was hospitalized. Also the tally of what obligations I felt that I had to help keep him afloat for the past couple of years—loan repayment and taxes—If you need a more formalized accounting, please let me know. [Emphasis added.]

Enclosed with the letter was a second page with a list of check numbers and amounts. No further elaboration was submitted, such as what the checks were for. The total amount of the checks submitted by Elizabeth was $36,517.00. There was no indication that the letter was being sent to either Todd or Donna as representatives of Ferguson's estate. At the time of the letter, neither the will, nor the renunciation, had been filed. Neither Todd, nor Donna, responded to Elizabeth's letter.

As we indicated, on August 11, 1998, Elizabeth died. At the time of her death, the estate of Ferguson had not been opened. The persons named in Ferguson's will as personal representatives had not filed any renunciation of their rights to be appointed, and Todd had not yet been appointed a co-personal representative. At the time of Elizabeth's death, persons, other than Todd, were designated in Ferguson's will, as personal representatives.

Elliott Cunninghame (hereinafter Elliott), the brother of Elizabeth and Ferguson, apparently was appointed executor of Elizabeth's estate.⁴ On April 7, 1999, Elliott, allegedly as executor for the estate of Elizabeth, filed a claim against Ferguson's estate for $36,517.00, which was the amount indicated by the list of checks enclosed with the letter dated July 24, 1998. On April 28, 1999, a Notice of Disallowance was received by the Register of Wills for Montgomery County. The Notice disallowed the claim of the estate of Elizabeth for the $36,517.00.

On June 29, 1999, a Petition for Allowance of Claim was filed in the Orphans' Court for Montgomery County.⁵ Elliott, as the alleged executor of the estate of Elizabeth, petitioned the Orphans' Court to allow the claim for $36,517.00. Elliott alleged that Elizabeth had loaned Ferguson the $36,517.00 and that Ferguson had promised to repay the loan. No mention was made as to whether Elliott had any knowledge of the communications, oral or written, between Todd and Elizabeth.

On October 22, 1999, a hearing was held on the Petition for Allowance of Claim before the Orphans' Court for Montgomery County. At the hearing, Elliott alleged that Elizabeth had loaned Ferguson money over the final years of his life, that there was an agreement for Ferguson to repay the money, and that Elliott was filing a claim against the estate because Ferguson had not repaid the loan. Elliott stated at the hearing that there was not any written evidence of an agreement to repay the loan.⁶

Respondent stated that the claim should be disallowed for several reasons. First, respondent alleged that the claim violated the limitation on presentation of claim statute because it was not filed within six months in violation of Md.Code (1974, 2001 Repl.Vol.), section 8-103 of the Estates and Trusts Article.⁷ Second, respondent alleged that even if the claim was not barred by the limitation on presentation of claim statute, respondent has "some substantive problems with the claim, and do[es] not believe that they are going to be able to prove that in fact the loan was made...." Petitioner responded, as we indicated, supra, to respondent's claim that petitioner had violated the limitation on presentation of claim statute by stating that even if the claim filed by the estate of Elizabeth was after the six-month "statute of limitations," the letter sent by Elizabeth to Todd was within the six-month period and was the presentment of a claim to the person who, although not the personal representative when the letter was sent, would eventually become a co-personal representative.

Three witnesses were called during the hearing—Todd, Elliott, and Reverend Gordon Kathy. Todd testified that he "requested originally from my aunt any bills incurred while my father was in the hospital to be sent to me." He further testified that he received a letter⁸ from his aunt; however, he was not the co-personal representative of Ferguson's estate when he received the letter. Elliott testified that photocopies of various checks that petitioner wanted admitted into evidence were from Elizabeth's account.⁹ The last witness was Reverend Gordon Kathy,¹⁰ who testified that he had discussions with Ferguson about Ferguson's finances. Reverend Kathy testified that two to three years before Ferguson's death, Ferguson told him that since Ferguson had been divorced, he was unable to pay his mortgage and that Elizabeth was paying the mortgage for him. He also testified that Ferguson planned on repaying Elizabeth and Ferguson was being pressured to sell his house to repay her. On cross-examination, Reverend Kathy stated that Ferguson never told him an amount that he owed Elizabeth and Reverend Kathy never saw any form of written agreement between Ferguson and Elizabeth requiring Ferguson to repay Elizabeth for any money that she gave to him. At the end of the testimony before the Orphans' Court, respondent argued that petitioner had failed to meet his burden by proving the amount of the claim or petitioner's entitlement to a claim. Respondent also reiterated his claim that petitioner had violated the limitation on presentation of claim statute. Respondent alleged that the letter from Elizabeth to Todd failed to establish that there was a loan between Ferguson and Elizabeth and that the language in the letter was equally consistent with a gift from a sister to a brother as it was to a loan. Respondent also alleged that the letter was not sufficient as a presentment of a claim and therefore the limitation on presentation of claim statute acted as an absolute bar to the claim filed by Elliott on behalf of...