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Castruccio v. Estate of Castruccio

Court of Appeals of Maryland

August 25, 2017


          Argued: May 5, 2017

         Circuit Court for Anne Arundel County Case No. 02-C-13-181345

          Barbera, C.J. Adkins, McDonald, Watts, Hotten, Getty, Rodowsky, Lawrence F. (Senior Judge, Specially Assigned), JJ.


          GETTY, J.

If from the whole evidence, the jury shall find that Tilghman Waters executed the will in controversy, in the presence of three subscribing witnesses thereto, and that they, at his request, in his presence, and in the presence of each other, signed their names as witnesses thereto; that at the time of the execution thereof, he, the said Tilghman, was capable of understanding the business in which he was engaged-the property he desired to dispose of, and the object of his bounty named in said will, and that the same was his free and voluntary act, they will find for the defendants.

Waters v. Waters, 35 Md. 531, 536 (1872).

         Remarkably similar to the formulation quoted by this Court in Waters in 1872, the current testamentary statute provides that "every will shall be (1) in writing, (2) signed by the testator, or by some other person for him, in his presence and by his express direction, and (3) attested and signed by two or more credible witnesses in the presence of the testator." Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts ("ET") § 4-102.

         In fact, the statutory requirements for the valid execution of a will have remained virtually unchanged in Maryland for over two hundred years. In 1798, the General Assembly enacted the first testamentary statute in Maryland, which included strikingly similar language for devises:

All devises and bequests of any lands or tenements, devisable by law, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void and of none effect[.]

1798 Md. Laws, ch. 101, sub-ch. 1, § 4. This Court has previously traced the foundational roots of these longstanding testamentary formalities to the English Statute of Frauds. See Casson v. Swogell, 304 Md. 641, 648-50 (1985).

         Relatively few changes have been made to the language of the 1798 statute. In 1884, the statute was amended such that only "two or more credible witnesses" were required for attestation. 1884 Md. Laws, ch. 293. In 1943, the statute was amended to add a paragraph (b), which provided exceptions to the statutory formalities for persons serving in the armed forces located outside of the United States.[1] 1943 Md. Laws, ch. 799. The current language of the statute first appeared in 1969 as Article 93, § 4-102 of the Maryland Code. See 1969 Md. Laws, ch. 3, § 1. In 1974, the former Article 93 was recodified as the Estates and Trusts Article during Code Revision. See 1974 Md. Laws, ch. 11, § 2. The statute has not been substantively amended since its enactment in its current form in 1969. But see 2010 Md. Laws, ch. 72, § 5 (nonsubstantive amendment).

         In this appeal, we must determine whether a will admitted to probate satisfied the statutory requirements for valid execution, particularly the requirement of attestation. For the following reasons, we hold that the will at issue satisfied the statutory requirements for valid execution, and therefore the circuit court properly granted summary judgment in favor of the testator's estate. Accordingly, we affirm the judgment of the Court of Special Appeals.


         Dr. Peter Castruccio died on February 19, 2013, at the age of eighty-nine. He was survived by his wife of sixty-two years, Sadie Castruccio, who was ninety-two years old at the time of his death.

         A. Drafting and Execution of the 2010 Will

         Peter signed a last will and testament on September 28, 2008, which he filed with the Register of Wills for Anne Arundel County for safekeeping. In September 2010, Peter asked his attorney, John Greiber, to retrieve the 2008 Will so that he could revise it. When Peter received the 2008 Will, he marked up the document in the presence of Mr. Greiber, and asked his longtime employee, Darlene Barclay, to transcribe his changes. Darlene made the requested changes and returned the draft 2010 Will to Peter, who reviewed it with Mr. Greiber on September 28, 2010.

         On September 29, 2010, Peter signed the 2010 Will in the presence of three witnesses: Mr. Greiber, his daughter Samantha Greiber, and Darlene's daughter Kim Barclay, who had also been employed by Peter for approximately six years. Peter called the three witnesses into his office and requested that they sign the papers on his desk, which he identified as his will. Peter then signed the Will in the presence of Mr. Greiber, Samantha, and Kim. Next, each of the three witnesses signed the Will in the presence of Peter and each other. Six weeks later, on November 17, 2010, Mr. Greiber deposited the Will with the Register of Wills for Anne Arundel County, where it remained until one week after Peter's death.

         B. Format and Substance of the 2010 Will

         The 2010 Will, which is reproduced in the appendix to this opinion, consists of six pages, which are consecutively numbered as pages 1 of 6, 2 of 6, etc. The page numbers are centered on the bottom of each page. The words "Peter Adalbert Castruccio" are centered in large font on the top of page 1 of 6; otherwise, the font and type-size are consistent throughout the document.

         In the first paragraph on page 1 of 6 of the Will, Peter "declare[s] this instrument as his WILL IN TESTAMENT [sic]." The second paragraph on page 1 of 6 states that, upon his death, Peter "hereby declare[s] the following:[.]" Following these introductory paragraphs, the 2010 Will contains eleven consecutively numbered paragraphs labeled Item 1, Item 2, etc. Some paragraphs are further subdivided into consecutively numbered subparagraphs.

         Item 1 names Mr. Greiber as Peter's personal representative for the administration of his estate. Item 7 leaves cash bequests of varying amounts to three specified individuals, including Darlene. Item 8 leaves "the rest and remainder" of Peter's estate to Sadie, "should she one, survive [Peter] and two provided she has made and executed a Will prior to [Peter's] death." Item 10, entitled "Residuary Clause, " appearing on page 5 of 6, provides as follows:

Should, at the time of my death, my beloved wife not have a valid Will filed with the Register of Wills in Anne Arundel County dated prior thereto these, I hereby give, devise and bequeath all the rest and residue of my Estate and property, whether imposition, expectancy will remainder, including all property over which I may have Power of Appointment to the following individuals share and share alike per stirpes and not per capita to DARLENE BARCLAY, [address redacted], Glen Burnie, Maryland, 21061.[2]

         Also on page 5 of 6 of the Will, below the "Residuary Clause" and Item 11, appears a concluding paragraph:

IN TESTIMONY WHEREOF, I, the above mentioned testator have hereunto set my hands and seals to this six page instrument, and have initial [sic] each page hereof, which instrument is intendant [sic] to be my Last Will and Testament, this 29th day of September, 2010.

         (The date "29th" is handwritten above a blank line.) Contrary to this statement, none of the pages of the 2010 Will are initialed. Below this concluding paragraph, Peter signed his full name above the typewritten words "PETER ADALBERT CASTRUCCIO[.]" Below his signature are the words "SIGNED, SEALED, PUBLISHED AND DECLARE [sic], BY PETER ADALBERT CASTRUCCIO." Another line down, the last two lines of page 5 of 6 read as follows: "The above named individual, does declare for his Last Will and Testament this instrument, have hereunto subscribed to have witness on the date last mentioned above, and at the location, and [. . . .]"

         The first two lines of the next page of the Will, page 6 of 6, appear to be a continuation of the sentence that began on the previous page: "I do hereby attest that the testator to be of sound mind, fully able to understand this instrument, and the testator voluntarily and freely did sign same." Below these words are the signatures of Mr. Greiber, Kim, and Samantha, each appearing under the word "WITNESS:" and above a line that reads, "Signature, residing at:[.]" Below each signature appears the witness' address. (Mr. Greiber's address is typed consistent with the text of the document; Kim's and Samantha's addresses are handwritten in what appears to be the same handwriting as their signatures.) No other text appears on page 6 of 6, other than the pagination at the bottom of the page.

         C. Petition to Caveat the 2010 Will

         On February 26, 2013, one week after Peter's death, Mr. Greiber filed a Petition for Administrative Probate with the Register of Wills for Anne Arundel County, requesting appointment as personal representative of Peter's estate and admission to probate of the 2010 Will. The next day, the Register of Wills issued an Administrative Probate Order, appointing Mr. Greiber as personal representative of Peter's estate and admitting the 2010 Will to administrative probate.

         At the time of Peter's death, Sadie had not filed a valid will with the Register of Wills for Anne Arundel County. Thus, under Mr. Greiber's interpretation of Peter's 2010 Will (and specifically the Residuary Clause), the residue of Peter's estate would pass to Darlene, not to Sadie. Seeking to avoid this result, on March 27, 2013, Sadie filed a Petition to Caveat Will in the Orphans' Court for Anne Arundel County. On July 2, 2013, Sadie petitioned the Orphans' Court to transmit issues related to the caveat to the circuit court.

         On August 1, 2013, the Orphans' Court entered an order transmitting seven issues to the Circuit Court for Anne Arundel County for trial, designating Sadie as the plaintiff and the Estate of Peter Castruccio ("Estate") as the defendant. The seven issues were designated as follows:

A. Was the six (6) page paper writing dated September 29, 2010, captioned "Peter Adalbert Castruccio" (the "Will") executed by Peter Adalbert Castruccio (the "Testator")[?]
B. Did the Testator execute the Will intending it to constitute his last will and testament?
C. Are all of the pages of the Will the genuine pages the Testator believed comprised the Will he intended to execute?
D. Was the execution of the Will procured by undue influence?
E. Was the execution of the Will procured by fraud?
F. Was the Will actually attested and signed by credible witnesses in the presence of the Testator?
G. Were the contents of the Will read by or to the Testator or known to him at or before the time of its purported execution?

         On September 17, 2013, the circuit court granted a motion to intervene filed by Darlene, and designated her as a defendant.

         D. Cross-Motions for Summary Judgment

         On October 10, 2013, the Estate filed a motion for summary judgment on all seven issues. Sadie filed an opposition to the motion on October 30, 2013. The circuit court held hearings on the motion on February 21, 2014 and May 2, 2014. Meanwhile, on April 8, 2014, Sadie filed a cross-motion for summary judgment as to Issue F, arguing that the 2010 Will did not satisfy the statutory requirement of attestation because the witnesses did not sign on the same page as the testator or on "physically connected pages." Sadie submitted the affidavit of her attorney, who declared that he inspected the 2010 Will at the Register of Wills on March 27, 2013, and found that it "consisted of six separate, unattached pages, without any staple holes or other evidence of having ever been physically connected together."

         Sadie also submitted the deposition testimony of Mr. Greiber and his daughter Samantha, both of whom were witnesses to the 2010 Will. In his deposition, Mr. Greiber recalled that the Will had been stapled when it was signed:

Q. So he took his signature page and the-
A. The whole will, I think everything was stapled together I'm pretty sure.
Q. It was stapled at that time?
A. I think, I'm pretty sure. Again, Peter had a habit of stapling everything. I don't staple everything.
Q. So-and this is not a will but-so if it was stapled, was it stapled like here-
A. Yes.

         Samantha also testified in her deposition that the 2010 Will was stapled at the time of signing:

Q. Do you remember when he gave you the will-
A. Uh-huh.
Q. And again, if you don't remember please let me know.
A. Okay.
Q. But whether it was actually stapled as one unit-
A. Yes.
Q. -or whether it was just loose papers?
A. Stapled.

         In addition, Samantha testified that she remembered seeing Peter ...

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