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Unger v. Berger

Court of Special Appeals of Maryland

September 25, 2013

ELIZABETH UNGER
v.
MARILYN BERGER, PERSONAL REPRESENTATIVE OF THE ESTATE OF ANN FREEMAN, ET AL

Zarnoch, Graeff, Salmon, James P. (Retired, Specially Assigned), JJ.

OPINION

Graeff, J.

This appeal involves a dispute between sisters over the final resting place of their aunt, Ann R. Freeman, who is buried in Arlington Cemetery of Chizuk Amuno Congregation ("Arlington") in Baltimore City. The issue presented is one of subject matter jurisdiction, i.e., where a will is probated in one state and the deceased is buried in another state, which court has jurisdiction to resolve a subsequent dispute regarding the proper place of burial. The answer depends on the nature of the claim raised.

Elizabeth Unger, appellant, filed a Petition for Disinterment and Complaint for Specific Performance in the Circuit Court for Baltimore City, alleging that Ms. Freeman's Last Will and Testament (the "Will") directed Marilyn Berger, appellee, to bury Ms. Freeman's remains in a burial plot next to her deceased husband in King Solomon Cemetery ("King Solomon") in New Jersey.[1] Ms. Berger filed a Motion to Dismiss the Complaint, which the circuit court granted on the ground that it lacked subject matter jurisdiction.

On appeal, Ms. Unger raises a single question for our review, which we have rephrased as follows:

Did the circuit court err in dismissing the Complaint on the grounds that it lacked subject matter jurisdiction?

For the reasons set forth below, we shall affirm in part and reverse in part the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On August 28, 2007, while residing in Florida, Ms. Freeman executed the Will and appointed Ms. Berger as her Personal Representative. The Will indicated that Ms. Freeman previously had made arrangements to be buried at King Solomon, and she had directed her "Personal Representative to take whatever action may be necessary to assist in fulfillment of those instructions."

At some point after executing the Will, Ms. Freeman moved to DeKalb County, Georgia, where she resided with Ms. Berger until she required hospitalization. In October 2009, she moved into Summer's Landing, an assisted living facility in Georgia.[2]

On April 21, 2010, Ms. Freeman died in Georgia. Ms. Freeman was deeply religious, and therefore, Ms. Berger arranged for her body to be cared for in accordance with strict Jewish law, including the ritual bathing of her body by a Jewish burial society and a watcher who guarded her body prior to burial. Ms. Freeman's body was then transported from Georgia to Maryland and buried in Ms. Freeman's family plot in Arlington.

Ms. Berger asserts that Ms. Freeman was buried at Arlington because, after executing the Will, Ms. Freeman "clearly and unambiguously" instructed Ms. Berger to bury her there. Ms. Berger explained that, in addition to being Personal Representative, she also had a full power of attorney and authority over Ms. Freeman's affairs.

On February 28, 2011, Ms. Unger filed a petition to probate the Will with the Probate Court of DeKalb County, Georgia.[3] In the petition, Ms. Unger sought to have the Will admitted to probate "so that she can petition for sanctions against [Ms. Berger] for failing to carry out the deceased's burial instructions as set forth in . . . the Will." Both Ms. Unger and Ms. Berger engaged counsel in Georgia to represent them in the dispute.

On August 9, 2011, prior to a ruling by the DeKalb County Probate Court, Ms. Unger filed a voluntary dismissal of her petition, without prejudice.[4] Three days after filing her voluntary dismissal in the DeKalb County Probate Court, a Notice of Disinterment was published in The Daily Record in Maryland on behalf of Ms. Unger and Ted Freeman, Ms. Freeman's step-grandson. On September 21, 2011, Ms. Unger filed an unverified ex parte Petition for Disinterment and Reinterment in the Circuit Court for Baltimore City.[5] On November 1, 2011, the circuit court ...


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