Schlossberg v. Schlossberg

• Decision Date: 04 August 1975
• Docket Number: No. 192,192
• Citation: 343 A.2d 234,275 Md. 600
• Parties: Leonard SCHLOSSBERG, Personal Representative of the Estate of Lena S. Jacobs v. Lottie SCHLOSSBERG, Personal Representative of the Estate of Albert Schlossberg, et al.
• Court: Maryland Court of Appeals

Page 600

275 Md. 600

343 A.2d 234

Leonard SCHLOSSBERG, Personal Representative of the Estate of Lena S. Jacobs v. Lottie SCHLOSSBERG, Personal Representative of the Estate of Albert Schlossberg, et al.

No. 192.

Court of Appeals of Maryland.

Aug. 4, 1975.

J. Darby Bowman, Jr. and Shale D. Stiller, Baltimore (Frank, Bernstein, Conaway & Goldman, Baltimore, on the brief), for appellant.

Leonard W. Burka, Washington, D. C. for Gertrude Auerbach, part of appellees; no brief filed on behalf of other appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

On March 2, 1973, Lena S. Jacobs, a widow without descendants and a resident of Montgomery County, died testate. The record discloses that two brothers, a nephew, several nieces and at least one cousin survived as her heirs.

The appellant Dr. Leonard Schlossberg, her nephew, on March 8, 1973 was granted administrative probate upon her last will and testament dated October 18, 1969, as well as a first codicil thereto dated August 18, 1971, pursuant to Maryland Code (1957, 1969 Repl.Vol.) Art. 93, § 5-301. ¹ Named in the will as her 'executor,' he was appointed her personal representative. ²

In accordance with the requirements of Art. 93, § 5-206, ³ he declared, 'under the penalties of perjury' that he had 'made a diligent search for a will of the decedent and to the best of (his) knowledge, the will accompanying (the) petition dated Oct. 18, 1969 and codicil dated 8/18/71 is the decedent's latest will and said will came into petitioner's hands in the following manner: 'Removed by decedent's attorney from their vault." He further attested therein that 'all information is furnished' as required by the provisions of Art. 93, §§ 5-201 and 5-202. ⁴

Under the terms of Lena S. Jacobs' last will and testament, all tangible personal property was bequeathed to her niece, Gertrude Auerbach, all her real estate was devised, in equal shares, to her brother Paul Schlossberg and two nieces, Esther Lipson and Gertrude Auerbach; a $5,000.00 bequest was made to a cousin, Rose Harris. The rest, residue and remainder of her estate was left to her nephew Leonard Schlossberg. The codicil filed with the will and dated August 18, 1971, disinherited Gertrude Auerbach and provided that any real property owned at the time of her death be devised in equal shares to her brother Paul and her niece Esther Lipson.

On May 7, 1973 Leonard Schlossberg undertook to 'amend' the proceedings by filing a petition for judicial probate under Art. 93, § 5-401, ⁵ setting out, for the first time, the existence of a second codicil, apparently written by someone other than the decedent, on a single sheet of lined yellow paper, dated January 25, 1973, and purporting to be signed by 'Lena Jacobs' and to have been witnessed by Leonard Schlossberg and one, Vie Beasley. This second codicil undertook to cut 'out completely Paul Schlossberg and Dora,' and stated, after the use of some vulgarity, 'I want Laballa (Leonard) to get my properties along with Eskalla (Esther) . . . I don't want to leave a thing in the world to Paul, Dora or Gittal (Gertrude Auerbach).'

The appellant's petition prayed that the order for administrative probate theretofore granted be set aside, that the will and the two codicils be admitted to judicial probate and that he be re-appointed personal representative. In the petition he explained that he had had custody of this second codicil since its execution and that its belated disclosure was due to the fact that Lena had instructed him 'to reveal to no one the existence of said codicil for a period of 30 days following the decedent's death.' He self-servingly averred that he had 'acted in good faith and without any intention to hinder, circumvent or delay the proper administration of this estate in his failure to reveal the existence of the later codicil to the Register of Wills or to his attorneys.'

Paul Schlossberg on August 10, 1973 filed a petition and caveat attacking the last will and testament and both codicils. He alleged the full gamut of grounds; he questioned the execution of the documents; charged their procurement by undue influence exercised and practiced by Leonard Schlossberg; asserted that the decedent was of unsound mind and incapable of executing a valid deed or contract; alleged that the will and codicils were procured by fraud exercised and practiced by Leonard Schlossberg; alleged that they did not represent and constitute the last will and testament of the decedent; alleged that the meaning, intent and consequences of the documents were not understood by her; alleged that she did not have a full understanding of memory of those who were the natural objects of her bounty; alleged that she did not have a full understanding or comprehension of the extent and nature of her estate; and alleged that because of advanced age and infirmities of body and mind that the decedent was unable to comprehend the nature and extent of her estate, and to know and appreciate the consequences of her acts. He additionally alleged, in connection with the second codicil that the decedent at that time was terminally ill from kidney failure, not in control of her faculties and incapable of executing a valid codicil. He prayed that issues be framed and transmitted to a law court.

On September 24, 1973 her brother Albert Schlossberg, unmentioned as a legatee in the will or either codicil, filed a petition to caveat the will and both codicils. Gertrude Auerbach on September 28, 1973 filed her petition attacking only the codicils. They respectively asserted substantially the same grounds as recited in Paul's petition to caveat and also requested issues be sent to a law court.

The timeliness of the caveat filed by Paul Schlossberg went unchallenged but the appellant, as personal representative, relying on the provisions of Art. 93, § 5-207, as then in effect, did file separate motions to dismiss the respective petitions of Albert Schlossberg and Gertrude Auerbach on the ground that they were not timely filed-within six months of the administrative probate of the will and the first codicil and of his appointment as personal representative.

When the petition for judicial probate came before the Circuit Court for Montgomery County, sitting as the Orphans' Court, on June 12, 1973 (before Cahoon, J.) the proceedings were postponed and no hearing thereon has as yet been conducted.

On January 29, 1974 the Circuit Court for Montgomery County, sitting as the Orphans' Court (Mitchell, J.) denied the motions of the appellant to dismiss the caveats filed by Albert Schlossberg and Gertrude Auerbach, holding that 'the caveats were timely filed.' ⁶ The order passed, unaccompanied by any opinion did not frame any issues to be transmitted to a court of law.

The appellant filed a timely appeal from that order to the Court of Special Appeals. During the pendency of the appeal in that court one of the caveators, Albert Schlossberg, died and Lottie Schlossberg, as the personal representative of his estate, became a substituted party-appellee.

The Court of Special Appeals in Schlossberg v. Schlossberg, 22 Md.App. 527, 323 A.2d 708 (1974) vacated so much of the order of January 29, 1974 by which the Orphans' Court had increased the penalty of the appellant's bond; it dismissed the appeals of the personal representative of the denial of his motions to dismiss the two caveats on the ground that no final order had been passed from which an appeal could be taken.

In reaching the result it did concerning appealability, that court found that our holdings in Safe Deposit and Trust Company v. Hanna, 159 Md. 452, 150 A. 870 (1930) 'must be narrowly construed' and that the 'amendment to Article IV, Section 20 of the Constitution of Maryland' coupled with the 'legislative changes incident to that amendment have destroyed its relevance to the subject case.' 22 Md.App. at 532, 323 A.2d at 711.

Pointing out that under the constitutional amendment, judges of the Circuit Court of Montgomery County sit 'as an Orphans' Court for said County' and exercise the power, authority and jurisdiction possessed and exercised by the Orphans' Court or which may hereafter be prescribed by law, and noting that by virtue of the provisions of Chapter 699 of the Acts of 1966, (codified in Code (1957, 1966 Repl.Vol.) Art. 5, § 25) now codified in Code (1974), Courts and Judicial Proceedings Article § 12-502, the alternative right to appeal from an order of an Orphans' Court to a Circuit Court was inapplicable in Montgomery County, that court, citing Courts and Judicial Proceedings Article § 12-501 which permits an appeal 'to the Court of Special Appeals from a final judgment of an orphans' court,' reasoned as follows:

'The basis for the decision announced in Safe Deposit v. Hanna, supra, was that, unless jurisdiction had been recognized by the Court of Appeals as to that particular interlocutory or pro forma order of the Orphans' Court, no appellate review of the decision would have been accorded to the litigants. The cited constitutional and statutory changes have had the effect, in Montgomery County, of assuring opportunity for appellate review by this Court of every order passed by that circuit court sitting as an orphans' court. Under those altered conditions the decision is without influence here. We hold that the subject case is controlled by the general rule, that 'appeals (from an orphans' court) shall be taken only from final orders or decisions, those actually settling rights of the parties.' Collins v. Cambridge Hospital, 158 Md. 112, 116, 148 A. 114, 116.' (Emphasis supplied.) 22 Md.App. at 534, 323 A.2d at 712.

Finding that the conclusion reached was 'bolstered by the existence of Maryland Rule 605' the Court of Special Appeals stated:

'We know also that final determination of the rights of all concerned in the subject litigation will result from the trial of the...