Downes v. Downes

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In the Circu it Court for T albot Cou nty Case No. 20-C-01-004248 IN THE COURT OF APPEALS OF MARYLAND No. 112 September Term, 2004 ______________________________________ SHIRLEY L. DOWNES v. GREGORY DOWNES ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia *Greene, JJ. ______________________________________ Opinion by Wilner, J. Battaglia, J., D issents _____________________________________ Filed: August 15, 2005 * Green e, J., participated in the oral argument but did not participate in the decision or the adoption of this Opinion. Maryland Code, § 3-203 of the Estates and Trusts Article (ET), permits the surviving spouse of a decedent to take a certain share of the deced ent s net Estate one-half or onethird, depending on whether there is surviving issue in lieu of property left to the spouse by the decedent s Will. ET § 3-206 and Maryland Rule 6-411 set a time deadline on the making of that election, however. The deadline relevant to this case was seven months after the date of the first a ppoint ment o f a pers onal rep resenta tive und er the W ill. It has since been changed to the later of nine months after the date of the decedent s death or six months after the first a ppoint ment o f a pers onal rep resenta tive und er a W ill. Both the statute and the Rule permit the orphans court to grant extensions of that deadline. ET § 3-206(a)(2) provides that the court may extend the time for election, before its expiration, for a period not to exceed three m onths at a time, upon notice given to the personal representative and for good cause show n. 1 (Emphasis added). Rule 6-411(c) provides that, [w]ithin the period for making an election, the surviving spouse may file a petition for an extension of time, and that [f]or good cause shown, the court may grant extensions not to ex ceed th ree mo nths at a time, provided each extension is granted before the expiration o f the period originally prescribed or extended by a previous order. (Emp hasis ad ded). The question before us is whether an orphans court, or on appea l from that c ourt, a 1 At the time of the relevant events in this case, that provision appeared in an undivided ET § 3-206(a). In 2003, that subsection was split, and the authority to extend the time for making a n election w as placed in § 3-206(a )(2). There w as no cha nge in substance. circuit court, has any discretion to grant an extension when the request therefor is not made within the period originally prescribed or exten ded by a p reviou s order. The Orpha ns Court for Talbot County, the Circuit Co urt for that co unty, and the C ourt of Sp ecial App eals all held that there was no such discretion. We agree w ith that conclusion and sha ll therefore affirm. BACKGROUND Petitioner, Shirley Downes, is the surviving spouse of Eldridge Downes IV, who died, testate, on October 23, 1997.2 In his Will, Eldrid ge left all of h is tangible pe rsonal prop erty to Shirley and named her as his personal representative. He also created two trusts a marital trust for Shirley s benefit in an amount equal to the maximum marital deduction available for Federal estate tax purpose s and a residuary trust for the b enefit of h is parents and his son, Gregory. On N ovember 3, 199 7, the Orphans C ourt admitte d the Will to probate and, pursuant to the W ill, ap poin ted S hirle y as pe rson al rep rese ntati ve. In Feb ruar y, 1998, Shirley filed an Inventory and Informa tion Repo rt that show ed the valu e of the E state to be $1,729,517. On June 2, 1998 one day prior to the then seven-month deadline for her to decide whether to renounce the Will and take her statutory share of the Estate Shirley, acting pro 2 Because the decedent, petitioner, and respondent share the last name, Downes, we shall o ccasionally, for c onvenien ce and clar ity in identification, re fer to them by their first nam es. See Maryland Rule 8-1 11(b). -2- se, filed a p etition fo r an exte nsion o f that tim e. She explained that the Inventory which, as personal representative, she had filed in February did not inclu de the valu e of certain a ssets owned by Eldridge, tha t she was in the process of determining the value of those assets, and that the determination of that value would affect her personal d ecision w hether to take her statutory share. She asked for a th ree-month extension which, on June 9 , 1998, the court granted.3 Later that month, she filed an amended Inventory sho wing the v alue of the Estate to be $2,052,228. In July, she asked for an extension of time to file the required Administration Acco unt, citing her inability to appraise closely held entities in the Estate. On August 27, 1998, Shirley, again acting pro se, filed a petition for a second extension of time to elect her statutory sh are. As before, she averred that the Inventories did not include all of the Estate s assets and that she was having difficulty valuing certain assets. On September 1, 1998, the court granted another three-month extension, to December 1, 1998. On November 30, 1998 one day before the expiration of the current extension Shir ley, this time through counsel, filed a petition for a third extension. She stated that her late husband had an interest in three businesses Tidewater Coffee, Inc., Raley Downes Services, Inc., and R al-Do Ind ustries, Inc. tha t both the ass ets and liabilities relating to those businesses might be substantial, and that the value of the interests would have a significant impact on her decision whether to renounce the Will and elect her statutory share. 3 No issue has been raised as to the validity of that extension, which, though sought prior to the expiration of the initial seven month period, was not granted until after that period had expired. -3- She claimed that, due to a lack of cooperation on the part of those businesses, two of which were in New Jersey, she had been unable to determine the value of the assets or the extent of the liabilities. On Decem ber 1, the co urt granted a nother three -month ex tension, until March 1, 1999. O n Februa ry 24, 1999, ag ain through counsel, S hirley requested a fourth extension, for the s ame re ason. On March 2, the court granted the extension, until June 2, 1999. During the period of that fourth extension, as to which no challenge is made, Shirley filed an amended Inventory showing Estate assets of $1,963,478, to reflect a decline in the value of certain corporate stock. She also filed her First Administration Account, charging herself with a gross Estate of $3,461,969. On March 22, she filed a supplemental Inventory that added $1,498,490 to the value of the Estate, bringing the total to $3,461,969 the value reported in the First A dminis tration A ccoun t. That supplemental Inventory included a value of $374,400 for the decedent s interest in Ral-Do Industries, Inc. and a value of $325,000 for his interest in Raley D owne s Servic es, Inc. The Inventory noted that the third business Tidewater Coffee, Inc. was insolvent and was disputing the extent of the d ecedent s interest. For whateve r reason, Sh irley allowed the fourth exte nsion to expire. On June 24, 1999 twenty-two days after the expiration of the extension period she filed a petition for a fifth extension. Notwithstanding the values assigned in the last supplemental Inventory, she again asserted that s he had be en unable to determine the value of her husband s interest -4- in the three companies. She added, as well, an assertion that, since the filing of the last petition for extens ion, the Estate has been involved in litigation before the Circuit Court for Talbot County involving obligations of the decedent, but she did not further identify or explain the natu re of tha t litigation . On July 6, 1999, the court, citing ET §3-206(a), denied the petition. Shirley moved for reconsideration of that denial, claiming that she had substantially complied with the de adline requ irement. In O ctober, 199 9, the court, citing Simpson v. Moore, 323 Md. 215, 228, 592 A.2d 1090, 1096 (1991), denied the motion, holding that the problem was not one of substantial compliance but of non-c omplianc e with the statu tory requi remen t. Shirley did not seek any immediate review of the Orphans Court s denial of her petition for fifth extension, but rather completed the administration of the Estate. On February 13, 2001, the court approved the Fifth and Final Administration Account showing a gross Estate of $3,228,701 and a net Estate after payment of taxes and expenses of $945,291. On March 15, 2001, she filed an ap peal to the C ircuit Court from the denial of her petition for fifth ex tension and her motion to reconsider that de nial. Grego ry, as sole surviving beneficiary of the residuary trus t, moved to intervene in the Circuit Court action, noting that, if Shirley were permitted to renounce the Will, the value of the residuary trust would be decre ased by about on e-third. H e also mo ved to dismis s the appeal a s unt imel y, arguing that the denial of Shirley s request for a fifth extension constituted a final judgment and that an appeal sho uld have been tak en within 30 days after that orde r. -5- On November 15, 2001, the Circuit Co urt granted G regory s motio ns to interven e in and to dism iss the ap peal. The court concluded that the order of July 6, 1999 that denied Shirley s petition for fifth extension was a final, appealable judgment under Maryland Code, § 12-50 2 of the Cts.& Jud. Proc. Article (CJP) and that her appeal from that order in March, 2001, was untimely. CJP §12-502(a)(1) permits a party in the orphans court to appeal from a final judgment of that court to the circuit court, in lieu of taking a dire ct appeal to the Court of Special Appeals. Section 12-502(b) requires that the order for appeal be filed with the register of wills within 30 days after the date of the final judgment from w hich the ap peal is taken. Shirley then appealed to the Court of Special Appeals which, in an unreported Opinion filed November 14, 2002, reversed the Circuit Court ru ling. The inte rmediate appellate court concluded that the effect of the July, 1999 order was simply to preclude [Shirley] from electing an alternative method of calculation and that nothing in that order suggests a final adjudication of [S hirley s] claim, or ev en a specif ic valuation a s to [Shirley s] award. Because that order did not finally adjud icate her claim in regard to the Estate, it was not immediately appealable. The final, appealable judgment, the court held, was the order approving the Fifth and Final Administration Account. The case was thus remande d to the Circ uit Court fo r further pro ceedings o n Shirley s app eal. On remand, Shirley focused not on whether the Orphans Court had the authority or discretion to excuse the late filing of the petition for fifth extension or to extend the deadline -6- for the filing of that petition, but rather whether the Circuit Court had that discretion or auth ority. She did not, in other w ords, argue error on the part of the Orphans Court but addressed only what the Circuit Court should do. In that regard, she noted that an appeal under CJP § 12-502 was to be heard de novo by the Circuit Court, that it was to be treated as if it were a new proceeding without any judgment of the Orphans Court, and that the Circuit Court was to give judgment [according] to the equity of the matter. Her position was that she nee ded mor e time to determine whether to renoun ce the W ill and that it w ould be inequita ble for t he cou rt not to e xtend th e dead line. She explained that the value of the Estate grew significantly during the period of administration but that, under the terms of the Will, most of that added value went into the residuary trust rather than the marital trust, so that Eldridge s son, Gregory, rather than she, got the benefit of that increase. The court wa s not impressed. It read what is now ET § 3-206(a)(2) as not allowing the court to grant a subsequent extension once the allowable period or current extension expired. The court noted that Shirley was aware of that fact, having complied with the requirement on four prior occasions, and observed that if the law created a harsh result, the remedy la y in a le gisla tive c hange, n ot on e cra fted by the Judi ciary. Shirley appealed again, but this time the Court of Special Appeals, in a reported Opinion, affirm ed. Downes v. Downes, 158 Md. App. 598, 857 A .2d 115 5 (200 4). Relying largely on Barrett v. Clark, 189 Md. 116, 54 A.2d 128 (1947) and Bunch v. Dick, 287 Md. 358, 412 A.2d 405 (1980), the intermediate appellate court held that the period prescribed -7- in ET § 3-206 for extending the time for a spousal election may not be enlarged by either an orphans or circuit court. It rejected Shirley s argument that a circuit court had greater authority in this regard than an orphans court, either under the Maryland Rules or under equitable principles, and declared that if a surviving spouse does not file a petition for extension of time within the originally pres cribed perio d or, as here, th e previous ly extended period, the spouse is foreclosed from thereafter obtaining additional time to make the election . Downes v. Down es, supra, 158 Md. App. at 610, 857 A.2d at 1161. We granted certiorari to consider the single question of whether an orphans c ourt, or a circu it court in a de novo appeal, has discretion to accept a surviving spouse s petition for extension of time to make an election under ET §§ 3-203(a) and 3-206(a) and Maryland Rule 6-411(c) when the petition seeking the extension is filed after the previous election period has already expired. DISCUSSION The issue is one o f statutory cons truction the meaning of wha t is now ET § 3206(a)(2) and its counterpart, Ma ryland Rule 6-411(c) both intrinsically and in relation to certain other Rules and comm on law princip les. Shirley ackno wledges that both the statute and the Rule, on their face, requ ire that any extension, whether an initial or a subsequent one, be granted by the court prior to the expiration of the preceding allowable period. Nec essa rily, she further concedes, that requires that any petition for such an extension must -8- be filed prior to that expiration. She argues, however, that that directive is me rely direct ory, not mandato ry or jurisdictional in nature, and that the Circuit Court, at least, had discretion to extend the time for filing the petition and thus to excuse an untimely filing. Gregory, on the other hand, contends that the statute and the Rule mean precisely what they say and that the time limit for seeking or obtaining an extension is jurisdictional in nature an d therefore man dato ry. He points out, in support of that view, that statutes relating to decedents Estates generall y, and statutes relating to a spouse s right to renounce a W ill and elect a statutory share o f the E state in p articular , are strictly c onstrue d. We have stated the controlling principles of statutory construction so often that o nly the briefest exposition is necessary. Our predominant mission is to ascertain and implement the legislative intent, which is to be derived, if possible, from the language of the statute (or Rule) itself. If the language is clear and unambiguous, our search for legislative intent ends and we apply the language as written and in a commonsense manner. We do not add words or ignore those that are there. If there is a ny ambiguity, we may then seek to fathom the legislative intent by looking at legislative history and applying the most relevant of the various canon s that co urts hav e create d. See generally State v. Glass, 386 Md. 401, 409-10, 872 A.2d 729, 7 34 (2005 ); Piper Ru dnick v. H artz, 386 Md. 201, 218, 872 A.2d 58, 68 (2005); Board of Ed. v. Mann Insurance, 383 Md. 527 , 544, 860 A.2d 9 09, 919 (2004). In this case, the words of the statute and Rule, as applicable to the orp hans courts, are clear and unambiguous. ET § 3-206(a)(2) permits an orphans court to extend the time for -9- election, before its expiration, for a period not to exce ed three m onths at a time. (Em phasis added). Rule 6-411(c) is even more specific. It permits a surviving spouse to file a petition for extension of time [w]ithin the period for making an election and allows the orphans court, for good cause, to grant extensions up to three months at a time provided each extension is granted before the expiration of the period originally prescribed or extended by a previou s order. 4 The authority of the orphans court to grant an extension beyond the initial period allow ed for the m aking of a n election an d beyond the period allowed in any extension previously granted is thus clearly conditioned on a request for the extension being filed w ith the co urt prior to the ex piration of the m ost rece nt allow able pe riod. Three qu estions flow from that lim itation: first, does it apply to the circu it courts in the context of a de novo appeal from the orphans court and, if not, what, if any limitations do apply in that setting; second, if th e limitation stated in the statute and Rule does apply in the circuit court, is it manda tory, in either a jurisdic tional or non -jurisdictional se nse, or is it merely directory or declaratory in n ature and, as a result, perm its the court to excuse an untimely petition and grant an extension nunc pro tunc; and third, if the requirem ent, intrin sically, is mandatory in nature, are there any extraneou s provisions that might se rve to supply a discretion, not app arent in the sta tute or Rule , that would allow a co urt to grant a 4 It is clear th at those provisio ns, on th eir face , apply on ly to the orp hans c ourts. Marylan d Rule 6-105 applies to the title 6 Rule s the de finition s conta ined in E T § 1-1 01. ET § 1-101(f) provides that the word court is defined in § 2-101. Section 2-201 defines court as th e orphan s court. -10- late-filed request for extension? As we have observed, CJP § 12-502(a)(1) provides that an appeal to a circuit court is to be heard de novo, as if there had never been a prior hearing or judgment by the orphans court, and that judgment is to be given according to the equity of the matter. Does that mean that the circuit court is not bound by the limitations set forth in ET § 3-206(a)(2) or Rule 6-411(c) which, as noted, facially apply only to the orphans court? We think, and h old, that the circ uit courts are bound by those limitations. The limitations are statutory ones that govern the exercise of a right that is conferred only by the statute.5 The Legislature has decreed that the right must be exercised within a specific time after or before id entified and ascertainab le events after the d eath of the decedent or the first appointment of a personal representative, before the expiration of any permissible extension previo usly gran ted by the orphan s court. The circuit court is, and must of necessity be, as bound by those limitations as the orphans court. Othe rwise, if a spouse could circumvent them b y simply tak ing an a ppeal, th ey wou ld have little prac tical me aning. Such a rule of equivalence is mandated as well by what we said in Estate of Soothcage v. King, 227 Md. 142, 153, 176 A.2d 221, 227 (1961): [I]n giving judgmen t according to 5 Although the Rule parrots some of the procedural requirements for making an election, the underlying right of a spouse to take a share of an Estate in contravention of a Will and any substantive restrictions on the exercise of that right are, and must be, entirely statutory. The Court has no authority, by Rule, to create such a right on its own or to impos e non-C onstitutional su bstantive restric tions on a rig ht that is, and m ay only be, created by the Legislature. -11- the equity of the case, the Circuit Court may enter any judgment which the Orphans C ourt might properly have entered on the same evidence. If, as a result of the statutory limitations, the Orphans Court could not have granted the fifth extension because the petition was untimely, neither could the Circuit Court have granted that extension. See also Kaouris v. Kaouris , 324 Md. 687, 715, 598 A.2d 1193, 1206 (1991) where, in discussing that statement from Soothcage, we noted that the circuit court, although expected to make its own determination, is limited to thos e that could properly have been ma de by the orph ans court and that it does not exercise its plenary jurisdiction over the matter. The same point was made by the Court o f Special A ppeals in Merc antile-S afe De p. & Tr. v. Hearn, 62 Md. App. 39, 47, 4 88 A.2 d 202, 2 06 (19 85), cert. denied, 303 Md. 360 , 493 A.2d 108 2 (1985): We think that a fair reading of Estate of Soothcage leads to the clear conclusion that Courts Art. § 12-502(a)(1) is not a carte blanche license to the circuit courts to disregard existing law. The phrase, give judgment according to the equity of the matter, is a legislative remind er to the circu it courts that their capacity in appeals f rom orph ans courts is id entical to that of the orp hans c ourts. It follows that a circuit court has no greater ability to ignore the statutory restrictions imposed on seeking extensions of the time to make an election than does an orpha ns court. We turn, then, to whether an orphans court has any authority to ignore the statutory limitation and excuse a late request. That invokes two issues raised by the parties: whether the statutory limitation is jurisdic tional in nature, i.e., whether the court has any jurisdiction to grant an extension when the petition seeking one is not timely filed; and, if not -12- jurisdictional in nature, whether the limitation is merely directory, rather than mandatory, and thus allows the c ourt some discretion to provid e relief f rom it. In that regard , Shirley points to Maryland Rules 6-104 and 6-107 which, she argues, provide that discretion. We do not regard the requirement as jurisdictional in nature, in the sense that our current case law has defined jurisdictional. In Carey v. Chessie Computer, 369 Md. 741, 755, 802 A.2d 1060, 1068 (2002), we pointed out that, in earlier days, courts seemed m ore willing to view limitations on their authority or discretion as jurisdictional in nature, but that we had moved away from that approach, in part beca use of its co nsequen ces. An ac tion in excess of a court s jurisdiction was regarded as utterly void, subject to being disregarded or attacked at any time a nd by an yone. See Fooks Executors v. Ghingher, 172 Md. 612, 619, 192 A. 782, 785, cert. denied, 302 U.S. 726, 58 S. Ct. 47, 82 L. Ed. 561 (1937). That characteristic of utter nullity, we noted in Carey, necessarily flowed from the very concept of the rule of law, but carried with it the prospect of serious mischief and thus required some circum scription . The proper ba lance, we have con cluded, is to v iew jurisdiction in terms of whether the court is given the power to render a judgment over that class of cases within which a particular one falls. See Carey v. Chessie Computer, supra, 369 Md. at 756, 802 A.2d at 1069 (quoting First Federated Com. Tr. v. Comm r, 272 Md. 329, 335, 322 A.2d 539, 543 (1974)). See also Board of License Comm. v. Corridor, 361 Md. 403, 417-18, 761 A.2d 916, 923-24 (2000). In furtherance of that approach, we have tended, whenever possib le, to -13- regard rulings made in violation of statutory restrictions on a court s authority or discretion as inappropriate exercises of jurisdiction, voidable on appeal, rather than as an inherently void excess of fundamental jurisdiction itself. See also County C ommis sioners v. C arroll Craft, 384 M d. 23, 44 -45, 86 2 A.2d 404, 41 7-18 (2 004). The time limitation im posed by E T § 3-20 6(a)(2) is not a jurisdictional impedim ent. The orphans court clearly has jurisdiction, in the fundamental sense, to extend the time allowed for a spou se to elect a statutory share. The requirement that an extension be granted prior to the expiration of the previou sly allowed period is merely a limitation on the exercise of that jurisdiction. If the court improperly grants an extension in violation of that limitation and a proper ap peal is noted , its action will be reversed by the appellate court and all will be made right. To regard an improper extension as an excess of jurisdiction, howev er, would allow anyone at any time to challenge it. Ye ars la ter, title to both real a nd perso nal p rope rty, even in the hands of innocent third parties, could be challenged. There is no need, and no justification, fo r an appro ach that m ight lead to tha t result. The final question, then, is whether the limitation, though not jurisdictional in nature, is nonetheless mand atory, or whether, conversely, there is discretion in the cou rt either to extend it or excuse its violation. In urging the latter, Shirley points to Maryland Rules 6104(a) and 6-107(b). Rule 6-104(a) provides, in relevant part, that [w]hen a rule, by the word shall o r otherw ise, man dates o r prohib its cond uct, the consequences of noncompliance are those prescribed by these rules or by statute and that [i]f no -14- consequences are prescribed, the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpo se of the ru le. Rule 6-107(a) permits an orp hans court or a register of wills, upon written request, to extend the time for filing an Inventory, an Information Report, an application to fix inheritance tax on non-probate assets, or an accou nt. Rule 6-107(b) provides: Except as otherwise provided in this section, when these rules, an order of court, or other law require or allow an act to be done at or within a specified time, the court, upon petition filed pursuant to Rule 6-122 and for good cause shown, may extend the time to a specified date. The court may not extend the time for filing a claim, a caveat, or a notice of appeal or for taking any othe r action e xpress ly prohibit ed by rule or statute . We do not regard either of those Rules, or the combination of them, as permitting the court to ignore the clear limitation specified in ET § 3-206(a)(2) and Rule 6-411(c) and grant an untimely request for extension. As we hav e observe d, both the sta tute and the R ule clearly prohibit an orphans court from granting an extension after the previou sly allowable period has expired. Such action is therefore expressly prohibited by rule or statute, thereby rendering the genera l authority conf erred in Ru le 6-107(b ) inapplicable. As to Rule 6-10 4(a), the consequences of noncompliance with the limitation in ET § 3-206(a)(2) and Rule 6411(c) are clear: an untimely request for extension must be denied. There is no other option. Our predecessors presaged this conclusion in Barrett v. Clark, 189 Md. 116, 54 A.2d 128 (1947 ). At the time, the law barred a surviving spouse from electing dower or a statutory -15- share in a deced ent s person al estate unless, within 30 days after the expiration of notice to creditors, the spouse filed with the orphans court or the register of wills a written renuncia tion of the Will. Another section, dealing with minor or incompetent spouses, permitted a guardian to file the renu nciation an d allowed the court to enlarge the time for filing such renunciatio n, prior to its expiration.6 A widow, who was neither a minor nor an incompetent but, because of pending litigation that would significantly affect the value of the Estate to h er, needed more time to decide w hether to ren ounce the Will, asked for an extension. The Orphans Court denied the request on the ground that it had no authority to grant it. On appeal, the widow argued that the authority in the section otherwise dealing w ith minor and inc ompe tent spo uses to g rant su ch exte nsions applie d to all sp ouses. This Court disagreed and affirmed the decision of the Orphans Court. We pointed out that the right of a surviving sp ouse to ren ounce a W ill had always been strictly construed, and we concluded, based on norm al rules of statu tory construction , that the words such renunciation were intended to apply only to renunciations made by guardians on behalf of minor or incompetent spouses. We noted as well that it had always been the policy that Estates be administered and closed expeditiously and that the Legislature may have believed that extending the time for spouses generally to ren ounce m ight lead to d elay and litigation in the settlement of Estates. 6 At the time, the age of majority was 21, so the prospect of a minor spouse was perh aps m ore f requ ent th an it i s tod ay. -16- We agreed that the Orphans Court had no authority to enlarge the time for the widow to file a renunciation. Shirley correctly points out that the law under consideration in Barrett was different from the law now before us, but it is a difference without a meaningful distinction. Under the law construed in Barrett, there was no authority whatev er to exte nd th e statutorilyprescribed time for a compe tent, adult spouse to renounc e the Will in favor of d ower or a statutory share. Now there is, but only if the request for extension is filed before the current period expires.7 When th at pe riod expires, the a utho rity to extend it expires as well. The same underlying pr inciples app ly: there has bee n no retreat f rom the pr inciple that the ability to renounce a Will in favor of a statutory share is to be strictly construed (see Bunch v. Dick, supra, 287 Md. 358, 412 A.2d 405), and the law still favors the expeditious administration and early settlement of Estates. See Pars hley v. Mo tt, 241 Md. 577, 578, 217 A.2d 300, 301 (1966); Thomason v. Bucher, 266 Md. 1, 4, 291 A.2d 437, 439 (1972); Matthews v. Fuller, 209 Md. 42, 56, 120 A.2d 35 6, 363 (19 56); Ewell v. Landing, 199 Md. 68, 72, 85 A.2d 475, 478 (1952). The three lower courts were correct in concluding that the Orphans C ourt had no authority to grant the untimely request for a fifth extension. 7 In 1949, in response to the Court s decision in Barrett, the Legislature amended Art. 93, § 315 to provid e tha t [t] he tim e for renu ncia tion by any spouse may be enlarged before its expiration by an order of the Orphans Court. 1949 Md. Laws 369, § 1 (emphas is added); see also Senk v. Monk, 212 M d. 413, 4 19, 129 A.2d 6 75, 678 (1957 ). This statute is the predecessor of ET § 3-206 (a)(2). -17- JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. -18- IN THE COURT OF APPEALS OF MARYLAND No. 112 September Term, 2004 SHIRLEY L. DOWNES v. GREGORY DOWNES Bell, C.J. Raker Wilner Cathell Harrell Battaglia *Greene, JJ. Dissenting Opinion by Battaglia, J. Filed: August 15, 2005 *Greene, J., participated in the oral argument but did not participate in the decision or the adoption of this Opinion. I respectfully diss ent. In this case we have been asked to decide if under Sections 3-203 and 3-206 of the Estates and Trus ts Article and Maryland R ule 6-411(c), the Orph ans Cou rt, or the Circu it Court on de novo appeal, has the discretion to accept a surviving spouse s fifth petition for extension of time to make a statutory election where the petition was filed after the previous election period had expired. A ccording to the majority, both the language of Section 3-206 and Rule 6-411(c) are mandatory restrictions on the Orphans Court s authority to grant extensions, and any requests for extension that are filed after the prior period has lapsed must be den ied. I disagree that the provisions of Section 3-206 and Rule 6-411(c) contain express language prohibiting the Orpha ns Court from g ranting an extension requ est after the expiration of the previous election period. In my opinion, the language that the court may extend the time for election, before its expiration contained in Section 3-206(a) and the corresponding language in Rule 6-411(c) are discretionary or directory rather than mandato ry in nature, so that the Orphans Court may fashion an appropriate remedy for the late-filed request provided that the requ esting party shows good cause warranting the extension. Neither the Orph ans Cou rt, nor the Circ uit Court on appeal, determined whether good cause existed to grant Mrs. Downes s request to extend the deadline to make a statutory election. Therefore, I would reverse the C ourt of Special Ap peals and remand the case for further proceedings by the Orphans Court to make such a determination. Under Section 3-203 (a) of the E states and T rusts Article 1 a surviving spouse of a decedent may elect to take a statutory share of the decedent s net estate instead of prope rty left to the spou se by the dece dent s will. Section 3-206(a) provides the procedural deadlines for a surviving spouse to make that election, including a ny requests fo r extension of time to elect: (a) In genera l; extension. The election by a surviving spouse 1 Section 3-203 states: (a) General. Instead of property left to him by will, the surviving spouse may elect to take a one-third share of the net estate if there is also a surviving issue, or a one-half share of the net estate if there is no surviving issue. (b) Limitation. Th e surviving spouse w ho make s this election may not take more than a one-half share of the net estate. (c) Calculatio n of net estate . Fo r the purpo ses of this section, the net estate shall be calculated without a deduction for the t ax as de fined in § 7-30 8 of the Tax-G eneral A rticle. Md. Code (1974, 2001 Repl. Vol.), § 3-203 of the Estates and Trusts Article. -2- to take an elective share shall be made not later than seven months after the date of the first appointment of a personal representative under a will. The court may extend the time for election, before its expiration, for a period not to exceed three months at a time, upon notice given to the personal representative and for good cause shown. Md. Code (1974 , 2001 R epl. Vo l.), § 3-206(a) of the Estates and Trusts Article. The broad purpose of the statute permitting the Orphans Court to extend the time to make an election was designed to provide sufficient time to enable a surviving spouse to determine th e condition of the estate a nd to mak e reasoned , informed decisions as to whether he or she should take under the will o r the statu tory share . See Md. C ode (195 7, 1969 R epl. Vol.), A rt. 93 § 3-206, cmt. (stating [i]t is felt that this [section] will provide sufficie nt time with in which the surviving sp ouse ma y make an in formed d etermination of whe ther or not th e election should be made, an d at the sam e time will fa cilitate the early settlement of estates ), recodified as Md. C ode (197 4, 2001 R epl. Vol.), § 3-206(a) of the Estates and Trusts Article. Maryland Rule 6-4 11(c), its counterpart, contains the same operative provisions for extensions: Rule 6-411. Election to take statutory share. (c) Extension of time for making election. Within the period for making an election, the surviving spouse may file with the court a petition for an extension of time. The petitioner shall deliver or mail a co py of the petition to the personal representative. For good cause shown, the court may grant extensions not to exceed three months at a time, provided each extension is granted before the expiration of the period originally prescribed or extended by a previous order. The court may rule on the p etition without a hearing or, if time permits, with a hearing. -3- The pertinent question is whether the Orphan s Court, or th e Circuit C ourt on ap peal, has any discretion to grant an extension when the request was not made within the time prescribed by Section 3-206 and its corresponding Rule. This Court has often stated that our goal in interpreting statutes is to identify and effectuate the legislative intent underlying the statute(s) at issue. Ross v. Board of Elections, 387 Md. 649 , 876 A.2d 692 , 699 (2005); Serio v. Baltimo re Coun ty, 384 Md. 373, 390, 863 A.2d 952, 962 (2004), quoting Drew v. First Guaranty Mortgage Corp., 379 Md. 318, 327, 842 A.2d 1, 6 (2003), in turn quoting Derry v. State, 358 M d. 325, 3 35, 748 A.2d 4 78, 483 (2000 ). We have held that the principles applied to statutory interpretation also are used to interpret the Maryland Rules. Davis v. Slater, 383 Md. 599 , 604, 861 A.2d 7 8, 81 (2004); Beyer v. M organ Sta te University , 369 Md. 335, 350, 800 A.2d 707, 715 (200 2); Pickett v. Sears, Roebuck & Co., 365 Md. 67, 78, 775 A.2d 1218, 1224 (20 01); see gener ally Johnso n v. State, 360 Md. 250, 265, 757 A.2d 79 6, 804 (2000). Like construing a statute, to ascertain the meaning of a rule of procedure we first look to the norma l, plain m eaning of the la nguag e. Davis, 383 Md. at 604, 861 A.2d at 81; Luppino v. Gray, 336 Md. 1 94, 204 n.8, 647 A.2d 4 29, 434 n.8 (1994); Rand v. Rand, 280 Md. 5 08, 511, 374 A .2d 900, 90 2 (1970); Balto. Gas & Elect. Co. v. Board, 278 M d. 26, 31, 35 8 A.2d 2 41, 244 (1 976); Johnson, 360 Md. at 265, 757 A.2d at 804. If that language is clear and unambiguo us, we need no t look beyond the provision s terms to infor m our a nalysis, Davis, 383 Md. at 605, 861 A.2d at 81 ; Rand, 280 Md. at 511, 374 A.2d at 90 2; Johnson, 360 Md. at 265, 757 A.2d at 804; however, the goal of our -4- examination is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular pro vision, be it statutory or part of the Ru les. Davis, 383 Md. at 604, 861 A.2d at 81; Morris v. P rince Ge orge s Co unty, 319 Md. 597, 603-04, 573 A.2d 1346, 1349 (1990), citing Dept. of the Environm ent v. Show ell, 316 Md. 259, 270, 558 A.2d 391, 396 (1989); Harford County v. Edgewater, 316 Md. 389, 397, 558 A.2d 1219, 1223 (1989). To that end, we must consider the context in which a statute or rule appears, including relevan t legislativ e history. Davis, 383 Md. at 604, 861 A.2d at 81; Mayor and City Counsel of Baltimore v. Chase, 360 Md. 121, 129, 756 A.2d 987, 991-92 (2000), citing Kaczorowski v. Mayor and City Counsel of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 632 (1987); Johnson, 360 Md. at 265, 757 A.2d at 804. Also, where the language of a statute or rule is ambiguous, external evidence may be referred to for discerning the purpose of the legislature, including the bill s title or function paragraphs, relevant case law, and second ary sources. Davis, 383 Md. at 604, 861 A.2d at 81; Moore v. Miley, 372 Md. 663, 678, 814 A.2d 557, 567 (2003 ); Comptroller of the Treasury v. Clyde s of Chevy Chase, Inc., 377 Md. 471, 483, 833 A.2d 10 14, 1021 (2003 ); Johnson, 360 M d. at 265, 75 7 A.2d a t 804; Schuman, Kane, Felts & Everngam, Chartered v. Aluisi, 341 Md. 115, 119, 668 A.2d 929, 932 (1995 ); Kaczorowski, 309 M d. at 515 , 525 A .2d at 63 3. In Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957), Judge Hall Hammond, writing for this Court, discussed the factors used to determine whether a deadline c ontained w ithin a statute is mandatory or directory, thereby enabling the court to exercise its discretion to act -5- outside of th e prescribed time limitation: Where the directions of a statute lo ok to the orderly and prompt conduct of busine ss, including the business of a c ourt, it is generally regarded as directory unless consequences for failure to act in accordance w ith the statute are set out. Statutory provisions fixing the time for performance of acts are held to be directory where there are no negative words restraining the doing of the act after the time specified and no penalty is imposed for delay. Id. at 561, 128 A.2d at 391 (internal citation omit ted) (emphasis added). In Scherr, the statute s langua ge, The failure of the court to determine an appeal within a period of 30 days after the record has been filed in cou rt by the local board as abov e provi ded, shall constitute an autom atic affirmance of the local board s decision, unless the time has been extended b y the court for good cause shown . . . [,] was found to be mandatory in nature, because it contained specific conse quences of a fa ilure to act [i.e., shall constitute an automatic affirmance of the local board s decision ], and an implication in the literal lang uage that [ was] a ne gation of th e right to act af ter the time specified [i.e., if the court f ails to act within thirty days, it has no further jurisdiction in the matter]. Id. at 562, 1 28 A.2 d at 391 . This Court has employed this two prong test in various contexts in o rder to determine whether the statute or ru le-based de adline is direc tory in nature rath er than man dato ry, emphasizing the lack of explicit cons equence s for non-c omplianc e with time limitations. See In re Dewayne H., 290 Md. 401, 405-07, 430 A.2d 76, 79-80 (1981) (ho lding that the failure to prescribe a sanction for non-conformance with time limitations within a statute and its -6- corresponding rule indicated that its effect was intended to b e directory and not manda tory); Resetar v. State Board of Education, 284 Md. 537, 547-50, 399 A.2d 225, 230-32 (1979) (holding that the County Board s regulation was directory becau se it provide [d] no pe nalty and ma[d]e no provision in the even t of a violation of the limit im posed ); Maryla nd State Bar Association v. Frank, 272 Md. 52 8, 533, 325 A.2d 71 8, 721 (19 74) (holdin g that statute requiring bar association or state s attorney on judge s order to prosecute charges of professional misconduct not more than sixty days from the date of order was directory rather than mandatory with respect to the time limitation because it [was] of some significance . . . that the language of the statute provide[d] no penalty for failure to act within the time prescribed ); Director, Patuxent Institution v. Cash, 269 Md. 331, 305 A.2d 833 (1973) (holding that the statutory reporting provision deadline for persons awaiting examination and evaluation at Patuxen t was directo ry and not ma ndatory); Garland v. Director, Patuxent Institution, 224 Md. 653, 655, 167 A.2d 91, 92 (1961) (holding that statutory provision for hearing new trial motions in criminal cases within ten days was directory rather than mandatory and that failure to hear the motion within time prescribed was not, alone, ground for relief unde r the Post C onviction P rocedure A ct); Scherr, 211 Md. at 566, 128 A.2d at 394 (holding that statute providing that failure of court to determine appeal from Liquor License Board within thirty days after filing of record was mandatory because the statute provided an automatic affirmance of the agency s decision as a sanction for non-compliance with the deadlin e). -7- Obv ious ly, when a statute or rule is directory rather than mandatory, a court is not automatica lly bound to adhere to time limitations and could grant requests for extensions of time, despite the expirati on of a previo us electi on peri od. See Cash, 269 Md. at 341, 305 A.2d at 839 (analyzing former Md. Code (1957), Art. 31B § 7(a), recodified without substantive change as Md. Code (1999, 2002 Cum. Supp.), § 4-301(b) of the Correctional Services Article as directory); Garland, 224 Md. at 655, 167 A.2d at 92 (interpreting former Md. Code (1957), Art. 27 § 594(a), recodified without substantive change as Md. Code (2001), § 6-105 of the Criminal P rocedure A rticle as directory). In this case, neither Section 3-206(a) of the Estates and Trusts Article nor its corresponding Rule 6-411(c) uses language that expressly con strains the O rphans C ourt from granting an extension a fter the time specified and no penalty is imposed for delay in granting a request for extension whether timely filed or not. See Scherr, 211 Md. at 562, 566, 128 A.2d at 391, 394 (failure of the court to act within prescribed time period resulted in an automatic affirmance of the local Liquor Board s decision). In the absence of such language or legislative intent to the contrary, Section 3-206(a) and Rule 6-411(c) should be interpreted as directory rather than mandatory in nature and Mrs. Downes should be afforded the opportunity to show good caus e as to why her fift h petition for e xten sion to fil e an e lection w as tardy. -8-

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