Selected Issues Regarding the Orphans' Court Jurisdiction
1. General Background
The Orphans' Court is a constitutional court. Maryland Constitution, Article IV, Section 40:
"The qualified voters of the city of Baltimore, and of the several Counties, except Montgomery County and Harford County, shall elect three Judges of the Orphans' Courts of City and Counties, respectively, who shall be citizens of the State and residents, for the twelve months preceding, in the City or County for which they may be elected. They shall have all the powers now vested in the Orphans' Courts of the State, subject to such changes as the Legislature may prescribe. Each of the Judges shall be paid such compensation as may be regulated by Law, to be paid by the City or Counties, respectively. In case of a vacancy in the office of Judge of the Orphans' Court, the Governor shall appoint, subject to confirmation or rejection by the Senate, some suitable person to fill the vacancy for the residue of the term."
Also, Maryland Constitution, Article IV, Section 20(d):
"The Judges of the Circuit Court for Montgomery and Harford Counties shall each, alternately and in rotation and on schedules to be established by those judges, sit as an Orphans' Court for their County, and shall have and exercise all the power, authority and jurisdiction which the present Orphans' Courts now have and exercise, or which may hereafter be provided by law."
2. Limited Jurisdiction-History
The constitutional provisions fail to describe the jurisdiction of the Orphans' Court except to state that such courts shall have the power of Orphans' Courts that existed at the time of the enactment of the Constitution. Thus, the constitutional underpinning of the Orphans' Court jurisdiction represented a codification of colonial practice. The jurisdiction (or more precisely, the limits on the jurisdiction) grew from the power granted to the Colonial Governor to probate matters according to "law, equity and good conscience." See Northrop and Schmuhl, Descendants' Estates in Maryland, §2-1 (Michie 1994).
3. Limited Jurisdiction-Statutory Framework
Estates and Trusts Article §2-102 sets forth the jurisdiction of the Orphans' Court:
"(a) Powers. The court may conduct judicial probate, direct the conduct of a personal representative, and pass orders which may be required in the course of the administration of an estate of a decedent. It may summon witnesses. The court may not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred."
To a large degree, the Maryland Constitution and statute begs the issue of the limitations on the jurisdiction. Indeed, one cannot determine the jurisdiction of the Orphans' Court without first knowing the scope of probate. Thus, it has been largely left to court decisions to articulate the jurisdiction of the Orphans' Courts.
4. Kaouris-Jurisdiction to Construe Written Documents
In 1991, the Court of Appeals addressed the issue of whether the Orphans' Court had the jurisdiction to interpret a marital settlement agreement. Kaouris v. Kaouris, 324 Md. 687 (1991) is an appeal from the Orphans' Court for Worcester County (Judges Shockley, Bowden and Leister). The Court used that case to summarize jurisdictional issues in general as related to the Orphans' Court.
The facts in Kaouris are as follows: Mr. and Mrs. Kaouris entered into a marital settlement agreement that provided that the parties had agreed to live separate and apart and that they would (in consideration of other transfers of property) give up all rights to inherit from each other and any right or claim against the estate of the other. The parties, however, never divorced. When Mr. Kaouris died, the widow filed for her elective share and for the family allowance. The personal representative opposed these claims, asserting that the widow had waived her rights in the marital settlement agreement. The issue before the Orphans' Court was whether the marital property agreement was an effective waiver of the widow's right to the spousal allowance and/or elective share.
The Orphans' Court ruled against the personal representative, concluding that "the agreement was void because the appellee and the decedent had never separated as the agreement contemplated." Kaouris at 713. The personal representative filed an appeal directly to the Court of Special Appeals, and the Court of Special Appeals certified the jurisdictional issues to the Court of Appeals.
The basic issue in Kaouris was whether the Orphans' Court had jurisdiction to determine the validity of the marital settlement agreement, necessary to determine whether the widow had waived certain rights in the estate or whether her waiver in that agreement was ineffective because of a material breach of the agreement by the decedent. The Court of Appeals held that the Orphans' Court did have the right to make that determination.
The Court of Appeals held that the Orphans' Court has jurisdiction to construe a written document if the construction of the document is necessary in order for the Orphans' Court to carry out its express jurisdiction. Thus, the focus is not on the type of document examined but rather why the document is being examined:
"We therefore reiterate: whether the orphans' court has the power to construe a written document, be it a release, a will, or another instrument, is dependent on what the party is asking the court to do and whether, when the court construes that document, it does so consistent with, and in furtherance of, an express grant of power." Kaouris at 706.
Under this test, the Court of Appeals held that the Orphans Court was well within its rights to interpret whether the marital settlement agreement was an effective waiver of the elective share amount.
Interestingly, the Court of Appeals discussed and distinguished Clarke v. Clarke, 290 Md. 289 (1981), which upheld the trumping of the Orphans' Court jurisdiction by a Circuit Court in a will construction case. In Clarke, the will directed the personal representative to pay the debts and then gave Mr. & Mrs. Ignatius Clarke "permission to farm the land for a period of five (5) years, if they so desire." At the end of that period the farm was to be sold and divided equally among various persons. The Orphans' Court ordered the property sold to pay debts and administrative expenses and denied Ignatius Clarke's motion to cancel the sale. Ignatius Clarke then filed an action in the Circuit Court to enjoin the sale and have the court construe the will.
As discussed in Kaouris, a "complexity test" was applied in Clarke:
"In Clarke, while generally recognizing the power of the orphans' court to construe wills incidental to administration and final distribution of a decedent's estate, we also acknowledged that there are instances in which construction of a will more appropriately should be done by the circuit court... Application of the Clarke complexity test does not resolve whether, when the circuit court exercises jurisdiction in a complicated construction matter, the orphans' court is divested of jurisdiction or is simply precluded from acting by virtue of the superior jurisdiction of the circuit court. Stated differently, does the determination that a construction matter is 'complicated' affect the orphans' court's power to resolve the issue or merely the propriety of its doing so? This issue was not directly addressed by Clarke. Nevertheless, we think it clear both from the circumstances and a fair reading of Clarke, that it affects only the propriety of the orphan's court acting." Kaouris at 706, 708.
In other words, the Clarke "complexity test" is not directed against the jurisdiction of the Orphans' Court but simply whether that jurisdiction should be exercised. This approach begs two questions: (1) to what degree does the circuit court have direct jurisdiction over probate issues when the Orphans' Court is involved – in other words, how would the Circuit Court reach in to the proceeding and get jurisdiction, and (2) can the Orphans' Court by its own direction send something to the Circuit Court for interpretation if the Orphans' Court believes it is overly complex and that it would be inappropriate for the Orphans' Court to act? Generally, of course, the Circuit Court does not go looking for disputes. Instead, litigants bring the disputes to the Circuit Court by way of a complaint for injunctive relief as was the case in Clarke. If a litigant believes that the issue should be tried in the Circuit Court, there is a mechanism (framing of issues) to bring that issue before the Circuit Court. There does not appear to be, however, a mechanism for the Orphans' Court to remove an action for determination by the Circuit Court if the Orphans' Court so desires.
Because issues are limited to factual interpretations, to the extent the interpretation or construction of a document is a legal determination, it may not be sent to the Circuit Court on that basis. Most legal questions, however, involve an interpretation of fact – the intent of the testator or drafter, for example, for a will. Earlier cases holding that the Orphans' Court could not construe a will based these decisions, in part, on the conclusion that interpretation is a matter of law that can only be determined by a court of equity. See Myers v. Hart, 248 Md. 443 (1968). Kaouris has "explained" these earlier decisions and shifted the emphasis away from a blanket prohibition against interpretation of documents to a determination that an interpretation of a document is appropriate if it is ancillary to the Orphans' Court primary jurisdictional functions. Given Kaouris, it would seem that the issue of a testator's intent may now be a factual matter that could be subject of the framing of an issue for transmittal.
The idea that the Orphans' Court has the power to do those things necessary to implement its primary jurisdiction was also addressed in Radcliff v. Vance, 360 Md. 277 (2000). In that case, the Orphans' Court had erroneously ordered a personal representative to pay, without notice to interested parties, a claim that would have benefited the personal representative. The Orphans' Court was held to have acted in its jurisdiction when it later ordered the claimant to refund the money to the estate. The Court of Appeals held: "The power of the Orphans' Court exercised in this case is comparable to an equity court's power to order restitution in similar situations. Where a litigant has been deprived of property by order of a court, and the court is subsequently reversed, the equity court may order restitution."
5. Issues
Estates & Trusts Article §2-105 provides: "In a controversy in the [orphans'] court, an issue of fact may be determined by the court", and, "At the request of an interested person made within the time determined by the court, the issue of fact may be determined by a court of law. When the request is made before the court has determined the issue of fact, the court shall transmit the issue to a court of law." This has been held to apply only to questions of fact and not of law. Nugent v. Wright, 277 Md. 615 (1976). Indeed, there should be only one issue framed for each question of fact. Id.
Maryland Rule 6-434 provides:
"In any proceeding, the orphans' court, upon petition, may transmit contested issues of fact within its jurisdiction for trial to the circuit court of the county in which the orphans' court is located. The petition shall set forth separately each issue to be transmitted. Each issue shall present a single, definite, and material question of fact."
Although usually seen in caveat proceedings, transmittal of issues may be requested by petition in any matter. It is necessary, however, that issues of fact and not issues of law are framed. Nugent v. Wright, 277 Md. 615 (1976). Issues related to law, of course, are the subject of appeals, not of shifting to another court. Once there is an issue transmitted to the Circuit Court, a jury trial can be prayed – traditionally one of the reasons for the transmittal of issues.
After issues have been transmitted, the Orphans' Court, upon petition, can modify the framed issues, but only with leave of the circuit court if within 15 days of the trial date. The Orphans' Court's functions are suspended until the verdict from the trial court. Hill v. Lewis, 21 Md. App. 121 (1974); Forsythe v. Baker, 180 Md. 144 (1941). The fact that an issue is in the law court does not affect the jurisdiction of the Orphans' Court. 62 Op. Atty Gen'l 900 (1977). The transmittal of issues should not operate to stay any proceedings in the Orphans' Court that could carry forward as long a litigant's rights are not jeopardized, depending on the determination of fact by the Circuit Court.
6. Proceedings in Multiple Courts
Given the ability of litigants to appeal cases and the ability to have issues framed and transmitted to the Circuit Court, a question remains whether the proceedings in the Orphans' Court are in limbo until the other courts deal with the appealed and/or transmitted issues.
In the case of the transmitting of issues, it would seem clear that only those issues are sent to the Circuit Court for determination. The Orphans' Court does not have any interruption of its fundamental jurisdiction and it continues to oversee probate.
On an appeal from an Orphans' Court decision, there is an automatic stay of the proceedings in the orphans' court concerning the issue appealed. The stay, however, only covers the issue appealed. Indeed, Courts Article §12-701(a)(2) provides: "An appeal from an orphans' court or circuit court does not stay any proceedings in the orphans' court that do not concern the issue appealed, if the orphans' court can provide for conforming to the decision of the appellate court." It is established Maryland law that the appeal only stays such proceedings as are thereby affected and which could not be consistently carried on until the determination of the appeal. Jones v. Jones, 41 Md. 354 (1875). On an appeal of the removal of a personal representative, the removal is stayed according to the statute. The personal representative, however, is held to have only the powers of a special administrator during the appeal.
Copyright ©2002 Frederick R. Franke, Jr.
This material is offered for informational purposes only and does not constitute legal advice. Persons with a specific legal concern should engage competent counsel.
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