Edery v. Edery

• Decision Date: 03 September 2013
• Docket Number: No. 909,Sept. Term, 2012.,909
• Citation: 73 A.3d 1229,213 Md.App. 369
• Parties: Paul EDERY, et al. v. David EDERY, et al.
• Court: Court of Special Appeals of Maryland

213 Md.App. 369

73 A.3d 1229

Paul EDERY, et al.

v.David EDERY, et al.

No. 909, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Sept. 3, 2013.

Eric H. Singer, Rockville, MD, for Appellant.

David Edery, Pro Se, for Appellee.

Panel: DEBORAH S. EYLER, MATRICCIANI, RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.

ON MOTION FOR RECONSIDERATION

EYLER, DEBORAH S., J.

Sultana Edery, a widow and resident of Montgomery County, died on February 21, 2009, leaving six surviving adult children: Michael Ben–Canaan, Hanna Ben–Yehuda, David Edery, Pinhas Edery (also known as Paul Pini Edery), Hanan Edery, and Shlomo (also known as Samuel) Edery.¹ Paul and Hanan are the appellants. David, Michael, Hanna, and Samuel are the appellees.

Mrs. Edery had executed a Will dated July 15, 2003 (“the Will”). In it, she nominated Hanan to be Personal Representative of her estate, and Paul to be Substitute Personal Representative if Hanan could not or did not want to serve.

On August 4, 2011, two and one-half years after Mrs. Edery's death, David filed in the Orphans' Court for Montgomery County a Petition for Probate of the Will, the Will, and a list of Interested Persons, which consisted of the six siblings. He asserted that Hanan had renounced his nomination as Personal Representative on November 20, 2008, even before their mother died, leaving Paul as the nominated Substitute Personal Representative under the Will. In a Petition to Appoint Personal Representative filed by David a few weeks later, on August 24, 2011, he alleged that in the time since their mother's death, neither Hanan nor Paul had done anything to submit the Will to probate. Instead, they had devoted their time to litigation against the other siblings over where their mother's body was to be buried.²

In his petition, David asked that he be appointed Personal Representative of the estate and that bond be waived. He attached written consents to his appointment as Personal Representative and to waiver of bond signed by Michael, Hanna, and Samuel.

On August 26, 2011, the Orphans' Court sent a Notice of Judicial Probate to all Interested Persons ( i.e., the siblings) notifying them that a petition for probate of the Will had been filed by David and that a hearing would be held on October 19, 2011. The Register of Wills published in a local newspaper a notice of judicial probate of the Will, giving the date and time of the hearing.

On October 14, 2011, Paul filed a motion to postpone the hearing, which was denied. Then, on October 18, 2011, the day before the hearing, Hanan and Paul filed a Petition for Judicial Probate of the Will, in which they requested appointment of Paul as Personal Representative, based on his having the priority nomination in the Will.

The hearing went forward on October 19, 2011. It was attended by David, who was represented by counsel, Samuel, who was represented by the same counsel, and Paul and Hanan, who were pro se. Michael (who like the rest of the brothers, lives in Maryland) and Hanna (who lives in Israel) did not attend, although they too were represented by the same counsel as David.

David's lawyer explained that, given Hanan's renunciation of his nomination as Personal Representative in the Will, Paul would be the Substitute Personal Representative, as nominated; however, as already noted, Paul had done nothing to submit the Will to probate (until the day before the hearing—and counsel for David only received Paul's petition for probate at the hearing). David's lawyer further explained that, notwithstanding their ultimate defeat in the litigation over the burial location of Mrs. Edery's body, Hanan and Paul were still pursuing a related action, this time in Prince George's County, in which they were seeking to have her body exhumed.

Counsel for David continued by stating that his first contact with this case had taken place when he was called by lawyers in Israel representing Hanna for advice as to whether real property there that is titled in Mrs. Edery's name could be sold. He told the Israeli lawyers that no steps had been taken to probate the Will in Maryland, which is where Mrs. Edery had owned property and had died, and that nothing could be done until that happened. He further informed the Israeli lawyers that submitting the Will to probate was Paul's responsibility, because Hanan had renounced his nomination as Personal Representative and Paul was the nominated Substitute Personal Representative. After that telephone call, David's lawyer contacted the other siblings, including Paul, from whom he received no cooperation. He told the court that he was asking that David or “any other person who wants to appoint be named, except for Paul, be named a personal representative.”

In a good example of the total inability of the factions of parties to communicate civilly, Paul responded to David's lawyer's presentation to the court by saying, “[a]bout 90 percent of what [David's lawyer] said is just a lie” and was “character assassination.” He spoke about the burial site of his mother's body, until the court interrupted, saying, “That's not really the issue here. The issue here is whether or not you should continue as the personal representative or whether or not somebody else should be the personal representative.” ³ Paul responded that he “[is] the [Personal] Representative” and wanted to continue as such.⁴ When asked why he had not done anything for years to bring a probate proceeding, he explained that he was in “shock and dismay” about his mother's body not being buried in Israel. He also claimed to have been told by someone in the Register of Wills office that all the property owned by his mother was in Israel. (In fact, David's lawyer just had explained that substantial property of the decedent was located in Maryland.) According to Paul, when he wrote letters to his sister, she called the Israeli police and accused him of threatening to kill her.

When Paul again returned to the subject of the burial site of his mother's body, the court again interrupted, saying:

No, stop. There's a lot of discord among you and your siblings, and, so, I think it would be in the best interest of everyone if an outside personal representative be named. So, I'm naming someone else as personal representative.

At that point, Paul complained that he thought the hearing merely was preliminary. The court responded: “It's a preliminary hearing in the sense that there's a request that you be removed as a personal representative.” ⁵ The court announced that it was appointing C. Brian Carlin, Esquire, as Personal Representative of Mrs. Edery's estate, and that the hearing was concluded. That same day, the court issued and docketed an order appointing Mr. Carlin as Personal Representative, upon the posting of a bond (“the October 19, 2011 Order”).

On October 31, 2011, Paul filed a handwritten “Motion to Reconsider” the court's October 19, 2011 Order.⁶ The motion is lengthy, and contains many extraneous items of information, but asserts, basically, that he was nominated to be Substitute Personal Representative in the Will, the nominated Personal Representative had renounced the position, and therefore he (Paul) should serve in that capacity.

On November 7, 2011, Mr. Carlin filed a Petition For Appointment of Substitute Personal Representative. He asserted that, after receiving the October 19, 2011 Order, he reviewed the pleadings in the related lawsuits concerning Mrs. Edery's death and the disputes among her children, speaking to counsel for David. After taking into consideration his own caseload, he concluded he was “not in a position to devote the time [he] believes will be required of the Personal Representative to administer [Mrs. Edery's] estate.” On that basis, Mr. Carlin “respectfully decline[d] the appointment and request[ed] the Court to appoint a substitute Personal Representative.” Mr. Carlin added that he had not posted a bond and therefore was not qualified to serve as Personal Representative; had not been issued Letters of Administration; and had not undertaken any of the duties of Personal Representative in the matter.

On November 9, 2011, David, Samuel, Michael, and Hanna filed an opposition to Paul's motion for reconsideration, adding that, in light of Mr. Carlin's request to withdraw as Personal Representative, a Personal Representative needed to be appointed.

On December 1, 2011, the court issued an order rescinding the October 19, 2011 Order, based on Mr. Carlin's request to withdraw, and appointing David as Substitute Personal Representative, upon posting bond. The same day, the court issued an order denying Paul's motion for reconsideration. Both orders were docketed on December 5, 2011. We shall refer to the order appointing David as Personal Representative as “the December 5, 2011 Order.”

On December 12, 2011, Hanan filed a “Motion to Reconsider and Appointment of PR's,” asking the court to reconsider and set aside the December 5, 2011 Order. Hanan represented that he never had renounced his nomination as Personal Representative under the Will. Rather, during a period when his mother was very ill and in a hospital Intensive Care Unit, he was “provoked” by David, who was threatening to kill Paul, and, having become “mentally drained by their antics,” decided to “take a short break.” Hanan further represented that he wished to “stay” as the Personal Representative nominated in the Will.

David, Samuel, Michael, and Hanna filed an opposition to Hanan's motion for reconsideration, attaching the November 20, 2008 document, signed by Hanan, entitled “Transfer of Power of Attorney,” that they maintained was a renunciation of his nomination as Personal Representative in the Will. (The document does not say that, however. It is a transfer to Paul of Hanan's duties as power of attorney for their mother before she died. It has nothing to do with the Will.)

On January 3, 2012, the court issued and docketed an order...