author: Powers, J.,

text:
    BERTRAM E. SEIDLITZ v. ARLEEN B. SEIDLITZ
    [No. 57,
    September Term, 1974.]

      Decided November 15, 1974.

      The cause was argued before Moylan, Powers and Lowe, JJ.

      Frank M. Kratovil for appellant.

      Suzanne M. Snedegar, with whom were Levitan, Ezrin, Cramer, West & Weinstein, chartered, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Bertram E. Seidlitz filed an original petition in the Circuit Court for Prince George’s County, in equity, asking the court to modify a District of Columbia divorce decree by reducing the amount of alimony and child support payable to his former wife, Arleen B. Seidlitz, and by changing the terms of her custody of their three minor children by granting custody to him during each summer vacation.

The petition contained numerous allegations designed to show' changes in relevant circumstances between the time of the decree in August 1971, and the time the petition was filed.

A subpoena and a copy of the petition were served upon Mrs. Seidlitz in Prince George’s County. She filed a motion under Maryland Rule 323 for dismissal of the case, and raised several preliminary objections. Among them were illegality of service of process, later abandoned, and lack of jurisdiction in the court over the subject matter. Mr. Seidlitz filed an answ'er in opposition.

A hearing on the motion was held before Judge Samuel W. H. Meloy. Facts relevant to the question of subject matter jurisdiction w'ere contained in the petition, the motion, the answer to the motion, and statements by counsel. They were not disputed. Judge Meloy took them as being properly before the court. We shall do likewise.

The parties were married in the District of Columbia in 1960. Later they lived in Montgomery County, Maryland. Three children were born during their marriage. The parties separated in 1969. In June, 1970, they entered into a “Separation and Property Settlement Agreement”. In September, 1970, Mrs. Seidlitz and the children went to live in Fairfax County, Virginia. They have lived there continuously since that time. In August, 1971, Mr. Seidlitz obtained an absolute divorce in the District of Columbia, on the grounds of voluntary separation for more than one year. The decree awarded custody of the minor children to Mrs. Seidlitz, subject to reasonable visitation rights of Mr. Seidlitz. The decree further provided:

“That the Separation and Property Settlement Agreement dated June 16th, 1970 be incorporated into the Decree of Divorce by incorporation and shall survive this Decree and shall not merge therewith.”

Mr. Seidlitz moved to Prince George’s County, Maryland, in August, 1972, and was living there when he filed the petition in this case.

In arguing at the hearing that the court lacked jurisdiction to modify the decree as to custody or child support, counsel for Mrs. Seidlitz conceded that the court would have jurisdiction with respect to the question of alimony. The court was not, however, asked to consider or rule upon the question of alimony, and did not do so.

On 23 November, 1973, concluding that it lacked subject matter jurisdiction over the parties’ minor children, the court filed an order

“ * * * that defendant’s preliminary objection with respect to subject matter jurisdiction is sustained and the plaintiff’s Petition for Modification of Divorce Decree be and the same is hereby dismissed to the extent that plaintiff seeks modification relating to custody and visitation rights, maintenance and support of the parties’ minor children.”

The appeal now before us was entered on 20 December 1973 by Mr. Seidlitz from that order. At the argument in this Court counsel for both parties agreed that the question of modifying the decree as to alimony remains before the lower court, undecided. Because a question remains undecided, Mrs. Seidlitz included in her brief a motion to dismiss the appeal. She says, citing Code, Courts Art., § 12-301, that a party may appeal from a final judgment, but because the order from which this appeal was taken did not decide the question of alimony, it was not final, but interlocutory. Maryland Rule 605 a. She moved that the appeal be dismissed, as not allowed by law. Maryland Rule 1035 b (1).

The appeal was allowed by law, and the motion to dismiss will be denied. The law that allowed the appeal was Code, Art. 5, § 19, which was in effect when the appeal was taken. It said:

“Any party to the proceedings, aggrieved by an order of any court of this State the effect of which is to deprive any parent, grandparent or natural guardian of the care and custody of a child, may appeal to the Court of Special Appeals from such order. Upon any such appeal the facts of the case shall be reviewed by the Court of Special Appeals as in appeals from final decrees entered by courts of equity.” (Emphasis added).

Section 19 was repealed, effective 1 January 1974, by § 2 of ch. 2, Acts of 1973, 1st Sp. Sess., the same act which in § 1 enacted the Courts and Judicial Proceedings Article of the Code. By § 18 of that act, the provisions of the Courts Article “apply to all proceedings commenced after December 31, 1973, and, so far as practicable, to all proceedings then pending”.

The right of a party to appeal from a final judgment is now stated in the Code, Courts Article, § 12-301. The Revisor’s Note to § 12-301 says that it consolidates and simplifies the basic provisions of Article 5, §§ 1, 2, 3, 5, 6, 8, 12, 13, and 19. We cannot read the substance of former Art. 5, § 19, in § 12-301. It may be that the right of appeal given in old § 19 was thought to be an appeal from a final order, and for that reason was not separately mentioned in the writing of § 12-301.

We think, however, that the right of appeal given in former Art. 5, § 19, was a right to appeal from an interlocutory order. No separate statute would have been necessary to authorize an appeal from a final order. The very wording of § 19, that “the facts of the case shall be reviewed by the Court of Special Appeals as in appeals from final decrees” underscores that the right being given was to appeal from an interlocutory order. As such, the right of appeal given in § 19 was analogous to some of the rights given in Code, Art. 5, § 7, now included in Courts Article, § 12-303, to appeal from interlocutory orders.

The Court of Appeals in Funger v. Mayor of Somerset, 244 Md. 141, 223 A. 2d 168 (1966), considered the interplay of Art. 5, § 7 and Maryland Rule 605 a. The Court concluded at 150:

“We think the right of appeal in the classes of actions enumerated in § 7 is general and not affected by Rule 605 a.”

The same reasoning applies to the right of appeal given in Art. 5, § 19. In any event, we could hardly consider it “practicable” to apply a change of law to a pending appeal if the effect of the change is to deny a right of appeal which theretofore existed. The appeal was not affected by Rule 605 a, and the motion to dismiss is denied.

Appellant argued below and here that the court of the District of Columbia which rendered the decree retained continuing jurisdiction to modify it; that the courts of Maryland have jurisdiction to enforce or modify a custody and support decree of another state; therefore a Maryland court may exercise the continuing jurisdiction to modify the decree which was retained by the District of Columbia court. The argument is built upon a fallacy, and cannot prevail.

The equity courts of Maryland have jurisdiction over the custody, guardianship, maintenance, and support of children, and a court may from time to time modify its decree or order concerning a child. Code, Art. 16, § 66, subsection (a), the substance of which now appears as Courts Article, § 3-602.

Before it may exercise this authority, however, the Maryland court must have jurisdiction over the children. In Miller v. Miller, 247 Md. 358, 231 A. 2d 27 (1967), the equity court had entered an order modifying custody previously awarded by a Florida decree. In reversing the order of the lower court the Court of Appeals said, at 362-63:

“As to the merits, the conclusion of the lower court that it had jurisdiction over the children because it had jurisdiction over the parents was erroneous and must be reversed. Rather, since the children were neither present nor domiciled in Maryland, it is clear that the court was without jurisdiction to either pass an order concerning the right of the ^ather to visit and communicate with the children or to find the mother in contempt for failing to comply therewith.
“In Zouck v. Zouck, 204 Md. 285, 104 A. 2d 573 (1954) and Naylor v. Naylor, 217 Md. 615, 143 A. 2d 604 (1958), we recognized the ‘domicile’ rule set forth in the Restatement, Conflict of Laws, § 117, to the effect that a state court has jurisdiction to determine custody of a child only if the domicile of the child is within the state. See also Berlin v. Berlin, 239 Md. 52, 210 A. 2d 380 (1965). As was pointed out in Zouck, at p. 302:
‘The term jurisdiction imports not only power over the parties to the action but the right to adjudicate as to the subject matter in a given case. In matters of custody, jurisdiction of the person who seeks custody is not enough. There must be jurisdiction over the one of whom custody is sought for the court to have jurisdiction of the subject matter.’ [Italics ours.]

This is so because as was said in Nelson on Divorce, 2nd ed., § 15.32, at p. 287 —

‘A proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res, or the subject matter, being the child’s status or his legal relationship to another. If the court does not have jurisdiction of the children it does not have jurisdiction of the subject matter to determine the right to custody as between the parties even though it does have jurisdiction of the parties, who are the parents of the children. ’ [Italics ours.]

Also see Nelson, op. cit., § 33.62; Beale, Conflict of Laws, Vol. 2, § 144.13.

“The law, therefore, is settled that absent jurisdiction over children, a court has neither the power nor a right to judicially determine questions concerning custody and visitation rights.”

The jurisdiction over children which a Maryland court must have before it can determine questions concerning custody, visitation rights, and support of the children need not be newly acquired in connection with the relief currently sought; it may be a continuation of jurisdiction acquired and exercised earlier.

In Berlin v. Berlin, 239 Md. 52, 210 A. 2d 380 (1965), a mother, who had been awarded a divorce and child custody by a Maryland decree, and who had later established her domicile, and that of the children, in New York, argued that the continuing jurisdiction of the Maryland court could be exercised only under circumstances which would authorize the court to take jurisdiction in the first place.

The Court of Appeals rejected that narrow view of continuing jurisdiction. It said, at 56-57:

“Although we recognized the domicile rule set forth in the Restatement, Conflict of Laws, § 117, in Naylor v. Naylor, 217 Md. 615, 143 A. 2d 604 (1958) and in Zouck v. Zouck, 204 Md. 285, 104 A. 2d 573 (1954), we were not concerned in either of those cases, as we are here, with the modification of an award of custody made by a court which by its decree (pursuant to statute) had reserved the right to make further orders. Where we have said that jurisdiction to determine custody depends on the domicile of the child we were concerned with the power of the court to award custody in the first place.
“The majority of courts in other states have adopted the continuing jurisdiction rule. We shall do likewise. The theory of this rule is that when a custody decree is subject to subsequent modification for any reason (either under the provisions of a statute or the terms of the decree itself), the jurisdiction of the court in the awarding state should remain notwithstanding the removal of the child to another state.”

We have cited and quoted from Berlin to make it clear that the continuing jurisdiction which a Maryland court has over matters relating to children must stem from an earlier proceeding in which the Maryland court had and exercised that jurisdiction. It is, in other words, the power which a Maryland court has to modify its decree or order. On the other hand, a later acquired power in a Maryland court to modify a decree or order of another state relating to children exists only when the Maryland court has jurisdiction over the children because they are presently domiciled here.

The true relationship between the continuing jurisdiction of the state which entered the original decree and the later acquired jurisdiction of the state of present domicile of the children was illustrated in Taylor v. Taylor, 246 Md. 616, 229 A. 2d 131 (1967). There the Court of Appeals said, at 618-19:

“The question before the Court is whether the courts of this State have jurisdiction relating to the protection and care of infants, domiciled in Maryland, where there is a subsisting order from a prior hearing in another state with original jurisdiction, awarding custody of the infants and setting forth the conditions of such custody and terms for their support.”
“It is a well-established principle of law that the state in which an infant is domiciled has jurisdiction over it. Maryland has so provided by statute, Art. 16, § 66 (a), Code (1957), which is merely declaratory of equity jurisdiction, Coleman v. Coleman, 228 Md. 610, 613, 180 A. 2d 875, 877 (1962); cf. Rethorst v. Rethorst, 214 Md. 1, 133 A. 2d 101 (1957), and as a corollary to this proposition, as stated by this Court in Berlin v. Berlin, 239 Md. 52, 55, 210 A. 2d 380, 381 (1965), ‘the domicile of a minor child, in case his parents are divorced, is that of the parent to whom legal custody has been awarded. * * *.’ In Rethorst, it is interesting to note that Maryland upheld the jurisdiction of the California court in a custody case, in which the infant children involved were physically present with their mother in Maryland, although they were domiciled in California.”

The chancellor below in Taylor felt that the full faith and credit clause, Article IV, § 1 of the Constitution of the United States, foreclosed action in Maryland in matters dealt with in the California decree. The Court of Appeals disagreed, holding that the court had jurisdiction because the children were domiciled here, and remanded the case for hearing and determination of the merits.

There is another aspect of domiciliary jurisdiction of children, which is not applicable in this case, but which, if only for that reason, we should notice. It is embodied in Code, Art. 16, § 66, subsection (f), which was not repealed in the recent Code Revision. This subsection was fully discussed and applied by Judge, now Chief Judge, Orth for this Court in the case of In re Karol, 11 Md. App. 400, 274 A. 2d 407 (1971). The statute, effective 1 July 1968, appears to have been enacted to prevent, under specified circumstances, frustration of Maryland’s domiciliary jurisdiction over children by their removal from the State. The specified circumstances did not exist in Karol, nor do they exist here. Neither Mrs. nor Mr. Seidlitz continued to reside in Maryland.

Cases cited by appellant fully support what we have said about continuing jurisdiction of a court to modify its own decrees, and equally support the jurisdiction of a court over children domiciled in the State; but none supports appellant’s novel contention that the two principles may in some way be combined to give the courts of Maryland jurisdiction to modify a District of Columbia decree relating to custody of children now domiciled in Virginia.

The chancellor’s ruling was correct.

Motion to dismiss denied.

Order affirmed.

Appellant to pay costs.

      . Even if the chancellor should decide that the court has jurisdiction with respect to the question of alimony, he may have difficulty in finding the power to change what the parties agreed to in a contract which was incorporated into but not merged with, and which survived the decree of divorce. Simpson v. Simpson, 18 Md. App. 626, 308 A. 2d 410 (1973).

      . But see the discussion, infra, of Code, Art. 16, § 66, subsection (f).


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    SUZANNE WALKER WRIGHT v. GEORGE AINSLIE NUGENT, Personal Representative of the Estate of Aldace Freeman Walker
    [No. 413,
    September Term, 1974.]

      Decided November 15, 1974

      The cause was argued before Orth, C. J., and Powers and Davidson, JJ.

      William H. Price, II and W. N. Harrell Smith, with whom was Gene Perry Bond on the brief, for appellant.

      John W. Sause, Jr., with whom were Walter W. Clagett, Sidney S. Campen and W. Ben Wilson on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

CASE SUMMARY

This case comes to the Court of Special Appeals of Maryland directly from the Orphans’ Court for Talbot County (Orphans’ Court). Courts Art., § 12-501. Suzanne Walker Wright, appellant, the only child of Aldace Freeman Walker, deceased, noted an appeal on 8 May 1974 from an order of the Orphans’ Court issued 9 April 1974 in a proceeding entitled “Estate of Aldace Freeman Walker”, docketed as Estate No. 10850. The order read:

“The above matter coming on for hearing on the objections of Suzanne Walker Wright to the jurisdiction of this Court in the above matter and counsel for Suzanne Walker Wright, Elizabeth Irwin Hazard and George Ainslie Nugent having been heard, it is this 9th day of April 1974, by the Orphans’ Court for Talbot County
ADJUDGED and ORDERED as follows:
1. The largest part in value of decedent’s estate was located in Talbot County at the time of his death, as appears on the Inventory filed herein. It is therefore determined that this Court has jurisdiction to grant probate to any Will of the decedent, whether or not decedent was domiciled in Talbot County at the time of his death, in accordance with the Estates and Trusts Article, Annotated Code of Maryland including Sections 4-104 and 5-103 (A) and (B).
2. The pendency of proceedings in the United States District Court for District of Columbia does not affect the jurisdiction of this Court, the issue in the District being whether the holographic Will should be accepted for probate under the law of the District of Columbia, and the issue in this Court is whether the Will should be accepted for probate under the law of the State of Maryland.
3. Issues filed herein on March 4, 1974 by George Ainslie Nugent and on March 5, 1974 by Elizabeth Irwin Hazard, are hereby sent to the Circuit Court for Talbot County for determination in accordance with Estates and Trusts Article, Section 2-105.”

We affirm parts (1) and (2) of the order. Part (3) is not before us, having been superseded by a subsequent order of the Orphans’ Court.

FACTS

On 24 July 1973 the Register of Wills for Talbot County granted the will of Aldace Freeman Walker to probate under administrative probate proceedings and appointed George Ainslie Nugent personal representative of the estate. Estates & Trusts Art., §§ 5-301, 5-302, 5-303. The Administrative Probate Order was predicated upon a request for probate contained in a petition filed by Nugent. The petition showed that Walker, domiciled in the District of Columbia, died on 2 May 1973 at Arlington, Virginia, with a will dated 8 April 1973, appointing Nugent as executor. The will was holographic, written on a sheet from a yellow legal pad, and read as follows:

“5236 Macomb Street, N.W.
“Washington, D.C.
“Sunday — April 8th, 1973
“I, Aldace Freeman Walker, being of sound and disposing mind and memory, do declare this to be my Last Will and Testament.
“I desire and direct upon my death, that all my property, personal and real, of which I might die possessed be placed in a TRUST, the income of which is to be placed at the disposal of Elizabeth Irwin Hazard during the course of her natural life and that upon her death that the corpus of said TRUST be made payable to my grandson, Andrew Wright, or in the event of his demise to be made payable to my daughter, Suzanne Walker Wright.
“I appoint George Ainslie Nugent to be the Executor of my Estate to serve without bond.”
“Aldace Freeman Walker”

Appended to the Petition was the affidavit of an attorney at law, admitted to practice before all the courts of the Commonwealth of Virginia. He asserted: “Under the laws of the Commonwealth of Virginia a will written wholly in the handwriting of the testator and signed by him is a valid will. Also there is no requirement under Virginia law that a will bear a seal. Accordingly, if the will is written wholly in the handwriting of Aldace Freeman Walker and was executed by him in the Commonwealth of Virginia, it is my opinion that such a will is a validly executed will under the laws of the Commonwealth of Virginia.”

There was also attached to the Petition the affidavit of Nugent, which, after discussing his friendship with Walker, Walker’s relationship with Mrs. Hazard and Walker’s state of health, recounted the circumstances of the execution of the will:

“Mr. Walker had been giving serious thought and study to making a new testamentary disposition of his property and had concluded that the most acceptable solution for the purposes he had in mind would be a will leaving his property in trust, with the income to go to his friend Mrs. Hazard during her lifetime, and upon her death, the corpus to his grandson, Andrew Wright, the son of his daughter Suzanne Wright. The trust which Mr. Walker had in mind was quite a complicated one and would have taken considerable time to properly draft in order to take care of his detailed wishes. Accordingly, while in my apartment on Sunday evening, April 8, 1973, he decided out of an abundance of caution, to execute a will which would express his wishes on a stop gap basis. Before he came North on this particular visit, he had purchased and brought with him two books on trusts and wills entitled Who Will Get Your Money’ by John Barnes (William Morrow & Co., Inc. 1972) and ‘Your Will And What To Do About It’ by Samuel G. Kling (Wilshire Book Company, 1972). He sat down at my dining room table and I watched him as he wrote out the holographic will. Mr. Walker signed the will which he had written in my presence without any witness attesting in writing to his signature.”

See Estates & Trusts Art., § 4-104. The affidavit stated that the will was left by Walker in Nugent’s care and, although Walker told Nugent several times that “he would come back and get the document so that it could be put in better shape”, Walker died before so doing. Insofar as Nugent knew, Walker never executed any other will subsequent to 8 April 1973. The Petition discussed other proceedings regarding the decedent’s estate:

“The decedent had two bank accounts in the District of Columbia at the time of his death; a savings account containing $5,759.95, and a checking account containing $1,106.33. The decedent had executed a prior will dated July 12, 1960; and this prior will, together with a copy of the holographic will dated April 8, 1973, have been filed with the Register of Wills in the District of Columbia. The decedent’s daughter (Suzanne Walker Wright) has filed a complaint praying that neither of these wills be admitted to probate in the District of Columbia. In view of the provisions set forth in Article 93, Section 4-104 and Section 5-103 (a), it was deemed that the facts as to the execution of the will and the bulk of the estate of the decedent at the time of his death indicated Talbot County, Maryland was the proper jurisdiction for the probate of the Last Will and Testament of the decedent, dated April 8,1973.”

Nugent duly qualified as personal representative.

On 17 January 1974 Suzanne Walker Wright, individually, and as natural guardian for her infant son, Andrew Wright, filed a petition for the removal of Nugent as personal representative and, on the same date, also filed a petition for judicial probate and a caveat, alleging the incompetence of the testator and undue influence exercised upon him. Estates & Trusts Art., §§ 5-401 and 5-207. This petition further alleged that the Orphans’ Court “has no jurisdiction to entertain original probate of either the July 12, 1960 executed carbon copy, the April 8,1973 unwitnessed writing, or any other writing made by Aldace Freeman Walker that may be discovered.” The Orphans’ Court conducted a plenary hearing on 6 March 1974 and on 9 April issued the order from which this appeal was taken.

On 24 April 1974 Suzanne Walker Wright filed another petition for the revocation of the letters of administration and appointment of George Ainslie Nugent. The docket entries of the Orphans’ Court show under date of 3 May 1974 that the petition for revocation of letters of administration and appointment of Nugent was denied.

ISSUES

The basic question in this case concerns the jurisdiction of the Orphans’ Court to admit to original probate a will executed in Virginia by a person domiciled in the District of Columbia who died in Virginia owning property in Maryland. As we see it, the only issue properly before us is whether the Orphans’ Court has jurisdiction to grant judicial probate to the paper writing of 8 April 1973. If it did, then, collateral to the issue is whether the Court was obliged to defer to proceedings in the District of Columbia.

The law is that any action taken after administrative probate shall be final and binding as to all interested persons unless a request for judicial probate has been filed within 6 months of administrative probate. Estates & Trusts Art., § 5-304 (a). Section 5-402 (a) declares that a proceeding for judicial probate is mandatory when so requested by an interested person. Here appellant, as an interested person, made timely request for judicial probate. On 5 February 1974 the Register of Wills gave notice as prescribed by § 5-403 to all persons interested in the estate that “A Petition has been filed in this Court by Suzanne Walker Wright, individually and Suzanne Walker Wright, natural guardian of Andrew Wright, minor, for judicial probate, including the appointment of a personal representative for said estate; and that said Petition will be heard at 1:00 P.M. on the 6th day of March 1974, or at such subsequent time or other place to which said hearing may be adjourned or transferred.”

As far as we can determine from the transcript of the hearing held on 6 March 1974 it was not a hearing for judicial probate despite the notice. See Estates & Trusts Art., § 5-404. Both the attorney for Nugent and the attorney for Elizabeth Irwin Hazard wondered about the purpose of the hearing. At one point Nugent’s attorney asked: “Could the Court instruct me as to exactly what it is that we are doing here. ... I am really at sea as to what we are doing . . . . Now I haven’t the vaguest idea of what the purpose is in taking the testimony [of Suzanne Walker Wright], but if the Court would tell me, I will know how to proceed.” The attorney for Hazard prefaced remarks to the Court by noting, “Inasmuch as I am not entirely sure as to what this proceeding is all about. . . .” The transcript does not reflect a clear answer by the Orphans’ Court but it is quite apparent from the order issued as a result of the hearing that the Court considered the hearing to be “. . . on the objections of Suzanne Walker Wright to the jurisdiction of this Court. . .” in the matter of the estate. Patently the order did not encompass the appointment of a personal representative nor did it expressly revoke, modify or confirm action taken at the administrative probate. Estates & Trusts Art., § 5-404 (a). We conclude that a judicial probate proceeding remains to be conducted, followed by appropriate determinations, appointments and orders. From the manner in which the hearing was conducted and the order issued pursuant to it, we are in accord with the view of the purpose of the hearing as suggested by Nugent’s attorney to the Orphans’ Court at the hearing: “The only question at this point before this Court is whether this Court has jurisdiction of the estate of Mr. Walker, and that is all.” We consider the hearing in that light. As so viewed, the sole issue before us is the propriety of the determination below that the Orphans’ Court had jurisdiction over Walker’s estate.

Appellant contends that the Orphans’ Court did not have “. . . jurisdiction or statutory power to grant original probate to the writing of a person domiciled outside of Maryland at the time of his death unless that person originally was domiciled in Maryland.” Appellee asserts that the Orphans’ Court had jurisdiction over the estate of Walker. The resolution of these divergent claims is to be found in Code, Art. 93, § 4-104, concerned with the execution of a will, and § 5-103, dealing with venue of the probate of a will. Whether appellant or appellee is right depends upon the meaning of these statutes.

The Execution Statute Art. 93, § J^-lOU

Under the early law, a will was eligible for probate only if it was executed in accordance with the law of the court to which it was offered and no personal representative had authority over the assets located outside of the territorial jurisdiction of the court appointing him. The lex locirei sitae governed the formal execution and validity of wills of real estate. Lindsay v. Wilson, 103 Md. 252, 265. The early law of Maryland, Acts 1798, ch. 101, required that wills devising real property be in writing, signed by the party or someone in his presence and by his express direction, and be attested and subscribed in the presence of the devisor by three or four credible witnesses. See Code, 1860, Art. 93, § 301. Wills bequeathing personal property were not required to be witnessed. Acts 1884, ch. 293 changed the law. By that Act both wills devising real property and wills bequeathing personal property “were utterly void and of none effect” unless in writing, signed by the testator or by some other person for him, in his presence and by his express direction, and attested and subscribed in the testator’s presence by two or more credible witnesses. This is the law today. Estates & Trusts Art., § 4-102. The same Act of 1884 also passed § 307 providing that “Every will and other testamentary instrument made out of this state by a citizen thereof shall be held to be valid, if the same be made according to the forms required by the law of the place where the same was made, or by the law of the place where such person was residing when the same was made, and the said will, when so executed, shall be admitted to probate in any Orphans’ Court of this State.” The statute thus altered the prior rule. Acts 1888, ch. 544 struck out the phrase “by a citizen thereof.” Acts 1894, ch. 151 substituted domicile for residence with respect to the validity of the will and added a provision with respect to the probate of a foreign will. The statute was repealed and reenacted with no substantive change by Acts 1914, ch. 238. For seventy-five years, until 1970, the law was substantially as it ultimately appeared in the Code of 1957 as Art. 93, § 368:

“Every will or other testamentary instrument executed without this State in the mode prescribed by law, either of the place where executed or of the testator’s domicile, or according to the forms required by the law of this State shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the law of this State, provided, said last will and testament is in writing and subscribed by the testator; and if the testator was originally domiciled in Maryland, although at the time of making the will or at the time of his death he may be domiciled elsewhere, the said last will or testamentary instrument so executed shall be admitted to probate in any orphans’ court of this State; and when so admitted shall be governed by and construed and interpreted according to the law of Maryland, without regard to the lex domicilii, unless the testator shall expressly declare a contrary intention in said will or testamentary instrument.”

The statute may be divided into two parts. The first part declared wills executed outside of Maryland to be valid if in accordance with the law of (1) the place where executed, or (2) the testator’s domicile, or (3) Maryland. The second part provided that a will valid under one of the tests specified in the first part, and made by a person “originally domiciled in Maryland”, shall be admitted to probate in Maryland, and, unless the testator expressly declared to the contrary, shall be construed according to Maryland law.

Acts 1969, ch. 3, § 1 repealed most of Code, Art. 93, “Testamentary Law” and re-enacted the Article under the title “Decedents’ Estates”, effective 1 January 1970. Section 4-104, concerning the execution of wills made outside of Maryland, provided:

“A will executed outside this State shall be deemed to be properly executed if it is (i) in writing, (ii) signed by the testator, and (iii) executed in conformity with the provisions of § 4-102, or the law of the testator’s domicile, or the place where the will is executed.”

Art. 93 was again revised by Acts 1974, ch. 11, effective 1 July 1974. Former Art. 93, § 4-104 appeared as Estates & Trusts, Art., § 4-104 with only stylistic changes.

When Art. 93 was revised in 1969, the Act was based upon the statutory proposal made by the Governor’s Commission to Review’ and Revise the Testamentary Law of Maryland. The proposal wTas set out, with comments, in the Commission’s Second Report, published in December 1968 and the Comments were revised by the Commission as was necessary in the light of changes made during the passage of the law. The Comment to § 4-104 begins: “This Section is in accord with former § 368, and no substantive change is intended except that the description of the act of the testator has been changed from ‘subscribed’ to ‘signed’ in order to be consistent w’ith Section 4-102.” It is true that in enacting § 4-104 no substantive change was made with respect to the first part of former § 368, but the second part of the section was completely eliminated. The provisions concerning the probate and the construction of a will of a testator “originally domiciled in Maryland” simply disappeared from the law. The eliminated part was not resurrected in the 1974 revision. The Revisor noted, “A slight change is made in style.” This is, of course, correct when the new section is compared with former § 4-104 of Art. 93, but that part of old § 368 relating to probate of a will of a testator “originally domiciled in Maryland” did not reappear. In the Estates & Trusts Article, however, the Comment to former Art. 93, § 4-104 was repeated with respect to the new § 4-104.

The Venue Statute Art. 93, § 5-103

Acts 1862, ch. 155 provided: “Any Will or Codicil may be proved in a county or city, wherein letters testamentary or of administration may be granted.” As codified in Art. 93, § 356 (1939) it became “Any will or codicil may be proved in any county or Baltimore City wherein letters testamentary or of administration may be granted.” It remained the law until 1949 when Acts 1949, ch. 506 amended it, making clear that wills of both residents and non-residents of the State could be so proved and adding a clause pertaining to pending probate proceedings at the domicile. It appeared as § 374 of Art. 93 in the 1957 Code:

“Any will or codicil of a resident or non-resident of this State may be proved in any county or Baltimore City wherein letters testamentary or of administration may be granted; but the court, if notified that proceedings for probate at the domicile are pending, may, in its discretion, postpone action upon the application for the original probate of a will or codicil of a decedent not domiciled in the State of Maryland at the time of his death until the court at the domicile has acted.”

Section 18 of Art. 93 spelled out where letters of administration may be granted:

“Whenever any person shall die intestate, leaving in this State personal estate, letters of administration may forthwith be granted by the orphans’ court of the county wherein was the party’s mansion house or residence; or in case he had no mansion or residence within the State, letters shall be granted in the county where the party died; and in case the party neither had mansion or residence nor died within this State, letters may be granted in the county wherein lies or is supposed to lie a considerable part of the party’s personal estate.”

The revision in 1969 patterned a new § 5-103 generally after §§18 and 374:

“(a) Proper county. —The venue for administrative or judicial probate shall be in the county in which the decedent had his domicile at the time of his death, or, if the decedent was not domiciled in Maryland, the county in which the petitioner believes that the largest part in value of the decedent’s property in Maryland was located at the time of his death.
(b) Situs. — For the purpose of determining venue for the administration of the estate of a decedent who was not domiciled in Maryland at the time of his death, the situs of tangible personal property is its location. The situs of intangible personal property is the location of the instrument, if any, evidencing a debt, obligation, stock or chose in action, or if there is no such instrument, the residence of the debtor. The situs of an interest in property held in trust is located in any county where the trustee may be sued.
(c) Proceedings in more than one county. — Probate proceedings concerning a decedent shall not be maintained in more than one county. If such a proceeding is commenced in more than one county, the court of the county where first filed shall have exclusive jurisdiction to determine venue. If proper venue is finally determined to be in another county, the proceeding, including any will, petitions or other papers filed therein, shall be transferred to the proper court.”

The Comment to the section observed:

“However, the venue of proceedings will.be relatively more fixed than under the prior Maryland law, which permitted the conduct of proceedings in the case of a non-domiciliary of' Maryland in- any county where a substantial portion of the decedent’s Maryland property was located. However, in order to avoid undesirable jurisdictional disputes the new statute makes determinative the bona fide belief of the petitioner, at the time of filing the petition, as to the County in which the largest part in value of the decedent’s property was located at the time of his death. The statute eliminates the provision of the prior law whereby the County in which death occurred is on that account alone necessarily a County of proper venue.”

The Comment also discussed the intention of subsections (a) and (b):

“Subsection (a) is not intended to require proceedings to be conducted in Maryland where the decedent was not domiciled in Maryland. If the decedent is not domiciled in Maryland and if it is decided by the petitioners to have the primary proceeding conducted in Maryland, subsection (b) is intended merely to determine the proper county in which the proceeding shall be conducted.”

The 1974 revision made only minor changes in style and language.

DECISION

We have no difficulty whatsoever with the meaning of the statutes applicable to the matter before us. Under the Estates & Trusts Art., § 4-104, a will executed outside Maryland is properly executed if it is in writing and signed by the testator and executed in conformity with the Maryland law or the law of the domicile of the testator, or the law of the place where it was executed. Because a will is ineffective to transfer property in Maryland unless it is admitted to administrative or judicial probate, or recorded pursuant to law, Estates & Trusts Art., § 5-102 (a), we believe it implicit that when the situs of property of a decedent is in Maryland his properly executed will may be admitted to probate in Maryland. So Estates and Trusts Art., § 5-103 declares where in Maryland such a will may be probated when the decedent was not domiciled in Maryland at the time of his death, namely, the county in which the person petitioning for probate believes the largest part in value of the property of the decedent in Maryland was located at the time of his death. Therefore, because Walker died seised of real property located in Talbot County, and since Nugent, the petitioner for probate, believed that such property represented the largest part in value of Walker’s property located in Maryland, the paper writing of 8 April 1973 could properly be admitted to administrative probate by the Register of Wills for Talbot County or to judicial probate by the Orphans’ Court for Talbot County with jurisdiction by that Court over the estate, if the writing was signed by Walker and otherwise properly executed. This is all the appeal before us requires us to decide as the primary issue. Whether the writing was in fact signed by Walker, where it was executed, whether it was executed in conformity with the law of its place of execution or of Walker’s domicile, wherever that domicile may have been at the time of his death, and Walker’s testamentary capacity, are matters yet to be determined by appropriate proceedings below. What we have determined is that the Orphans’ Court has jurisdiction to entertain a request for judicial probate, and has authority to take such steps as are necessary to determine whether the writing should be admitted to probate as Walker’s last will. Possessed of this jurisdiction and authority, it is not obliged to abide proceedings brought elsewhere. In any event, what the record here shows is that the 1973 writing was not admitted to probate in the District of Columbia.

We have recounted the history of the applicable statutes in the light of the arguments made to us. We believe it clear, however, that no matter what the former law was, the controlling law is not now concerned whether the decedent was “originally domiciled in Maryland” or not. The meaning of “originally domiciled” is not now relevant. Whether the amendment to the venue statute in 1949 implicitly amended the execution statute even though the latter was not changed until 1969, makes no difference. We flatly reject appellant’s argument that because the Commission commented that the 1969 revision was in accord with former § 368 and no substantive change was intended, that a will of a non-resident may be probated in Maryland only if he were “originally domiciled” here. If the law under § 368 was that a will of a non-resident could not be admitted to probate in Maryland, then there was a substantive change in the 1969 revision, even if the Commission did not so intend. But it had been held even when § 368 was in effect that an orphans’ court had jurisdiction apart from that statute, to accept wills of non-residents for original probate. Niles, J. so held in an erudite and comprehensive opinion in In re Will of Pritchard, Superior Court of Baltimore City, Baltimore Daily Record, 26 November 1940. That conclusion seemed to Judge Niles, for reasons he fully explained, “to be not only in accordance with the words of the statutes, and with the general law, but also to be in accord with the intent of the law, namely, to give effect to the intentions, with respect to property in Maryland, of testators who execute wills' in other jurisdictions.” See Note, 5 Md.L.R. 213; Note, 4 Md.L.R. 400, Annot. 20 A.L.R.3d 1033; Annot. 131 A.L.R. 1023. See also Hall, Admx. v. Morris, 213 Md. 396; Smith v. Mercantile Trust Co., 199 Md. 264; Roach v. Jurchak, 182 Md. 646. Contra, Lindsay v. Wilson, supra. Of course, if Judge Niles was correct in his view of the law, the Comment of the Commission was sound; the elimination of the second part of § 368 would make no substantive change in the law.

Appellant presents two other contentions on appeal. First, she complains because the Orphans’ Court did not determine the issue of domicile at the hearing. The complaint is without merit. The Court in its order thought it had jurisdiction “whether or not decedent was domiciled in Talbot County at the time of his death.” We agree. Domicile would be an issue at this stage of the proceedings only if it is alleged that the 1973 writing was executed in conformity with the lawT of Walker’s domicile. Second, she asserts: “Assuming the Orphans’ Court for Talbot County has jurisdiction to grant original probate to the 1973 writing of decedent, it w'as an error of law' or an abuse of discretion by the Orphans’ Court to hold the 1973 paper writing properly admitted to probate in July, 1973, or, alternatively, to permit the probate of the 1973 paper writing by accepting affidavits on April 9, 1974, without any order of court and without requiring the petitioner, George Ainslie Nugent to file a new' petition that did comply in all respects with the law'.” It does not appear that the order of 9 April 1974, which is the only order pursued on appeal, admits the 1973 writing to probate. The order determines that the Orphans’ Court has jurisdiction to grant probate to any will of the decedent, and w'e have concluded that this is correct provided such will executed outside of Maryland is in conformance with Estates & Trusts Art., § 4-104. But we have indicated that the proceedings to have the writing of 1973 admitted to judicial probate have not yet been had as required. Appellant has not been harmed by the matters which are the subject of the contention.

Appellee asks if the person named as executor in the will is authorized to employ counsel and compensate such counsel from the estate. He poses the question in answer to appellant’s contention last above discussed. Appellant argued that a personal representative appointed in a will not yet probated and validity of which is questioned had no right to defend against a caveat to that will. Although we sympathize with appellee’s attempts to understand and answer the contention as presented, the point he presents was not tried and decided below and is not properly before us. Maryland Rule 1085. We note, however, what the Court of Appeals said in Webster v. Larmore, 268 Md. 153, 170-171:

“It is quite apparent, too, that the Legislative intent, as expressed in [Art. 93,] § 7-603, was that a defense of a will by either a personal representative (who presumably has qualified) or by a person nominated as personal representative (who presumably has not qualified) should similarly be at the expense of the estate.”

SUPPLEMENTAL ISSUE

The Appeal Status of the Order of 9 April 197U

We think it advisable to give our reasons why we deem the order of 9 April 1974 to be a final judgment within the contemplation of Courts Art., § 12-501. See supra, note 1.

The general rule is that an appeal may be taken only from a final judgment. Courts Art., §§ 12-301, 12-302, 12-303. The status of the order of 9 April 1974 as a final judgment is not questioned by the parties, but, of course, the jurisdiction of this Court is statutory and may not be conferred by consent of the parties. Lang v. Catterton, 267 Md. 268, 275. Section 12-101 (f) of the Courts Article defines “final judgment” to mean “a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.” The Revisor’s Note makes clear that the section does not attempt to specify what is an appealable final order. “That if left to case law, as at present. The purpose of the definition is merely to substitute the brief phrase ‘final judgment’ for the present ‘final judgment, decree or determination,’ or similar language.”

Courts Art., § 12-501 expressly gives a party the right to appeal to the Court of Special Appeals from a final judgment of an orphans’ court. The section combined former §§ 9 and 10 of Art. 5, giving effect to recent legislation regarding appellate jurisdiction, but otherwise, according to the Revisor, making only changes in style. The progenitors of § 12-501, however, appeared to speak in absolutes. Art. 5, § 64 as it appeared in the Codes of 1924, 1939 and 1951, and as § 60 in the Code of 1904, read:

“From all decrees, orders, decisions and judgments, made by the orphans’ court, the party, who may deem himself aggrieved by such decree, order, decision or judgment, may appeal to the court of appeals.”

Chapter 399 (4), Acts 1957, amended the section, and as codified as Art. 5, § 9 it read:

“Any party may appeal to the Court of Appeals from any decree, order, decision or judgment of an orphans’ court.”

The amendment, in effect, merely omitted the language about an aggrieved party, presumably, in the view of the Court of Appeals, as surplusage. Webster v. Larmore, 270 Md. 351, 353. Even though the statute seemed to speak in absolutes, the Court of Appeals thought that it must be construed in the light of the restrictive gloss imposed by the Court’s decisions. Ibid. Because the provisions of Art. 5, § 60, Code of 1904, Art. 5, § 64, Codes of 1924, 1939 and 1951, Art. 5, § 9, Code of 1957 and § 12-501, Courts and Judicial Proceedings Article, are in substance the same, prior decisions of the Court of Appeals construing the statute are apposite.

The decisions of the Court of Appeals early recognized that the meaning of the statute was as it now expressly provides, viz., appeals shall be taken only from final judgments. Collins v. Cambridge Hospital, 158 Md. 112, 116. In Collins, final orders were characterized as “those actually settling rights of the parties.” Ibid. Pattison v. Firor, 146 Md. 243, held that an appeal lies from an order of the orphans’ court dismissing a petition of one of the heirs at law of a decedent asking that the court refuse to grant letters testamentary or of administration on the ground of decedent’s non-residence. We think that the factual posture of Pattison is sufficiently comparable to that of the case before us to lead us to the conclusion that an appeal lies from the order here.

We distinguish Collins v. Cambridge Hospital, supra, in which the Court said, at 116: “An order determining in the affirmative only the question of jurisdiction in the court to hear the controversy and thereafter decide whether persons applying shall be made parties, is not such a final order [of an orphans’ court from which an appeal will lie under Code (1924) § 64]. Rowe Co. v. Rowe, 154 Md. 599, 604.” The order found to be interlocutory overruled objections by caveators to the court’s jurisdiction to determine whether other parties were such parties in interest that they could intervene as caveatees. We believe this to be materially different from a determination that the court has jurisdiction to entertain probate of a will and appoint a personal representative. The effect of the order in the case before us brought the same result as the order in Pattison, namely, the refusal by an orphans’ court of a request that it not assume jurisdiction over an estate because of the decedent’s non-residence.

As to the order of 9 April 197k: parts 1 and 2 affirmed; appeal as to part 3 dismissed; case remanded for farther proceedings in accordance with this opinion; costs to be paid by appellant.

      . The appeal was noted on behalf of appellant “. . . from all judgments and orders and denials of petitions in this case including the Order of this Court entered April 9, 1974, copy of which April 9, 1974 Order is attached hereto and including the two petitions of Suzanne Walker Wright filed April 24, 1974, being the petition for revocation of letters of administration and appointment of George Ainslie Nugent and being the petition for revocation of order of April 9,1974 transferring issues to the Circuit Court, which were denied on May 7, 1974, copies of which are attached hereto.” Although the proceedings formicate with petitions and motions, appellant declares in her brief that “. . . the Order of April 9, 1974 is the only order filed in the estate proceedings from which the appeal is taken.” It seems that as to the other matters no orders were entered, or judgments rendered were interlocutory, or the appeal was not timely, or the appeal was abandoned.
      We consider the order of 9 April to be a final judgment within the contemplation of Courts Art., § 12-501. See infra, SUPPLEMENTAL ISSUE.

      . The inventory listed assets located in Talbot County as real property appraised at $460,000 and tangible personal property valued at $2,415.

      . On 24 April 1974 appellant filed a motion to revoke that part of the order of 9 April directing that issues be transmitted to the Circuit Court for Talbot County. On 7 May the Orphans’ Court ordered “That since additional' issues have been filed by Caveator, Suzanne Walker Wright, and that since additional issues may be filed by other interested parties, that all interested parties are hereby given a period of time up to the 21 day of May, 1974, to file issues in this case, and That a hearing is set before this Honorable Court on the 28 day of May, 1974, for a determination of the question of all issues to be sent to the Circuit Court including the possible revocation or modification of the Order of this Court of April 9, 1974.” It thereupon published a notice “To the Attorneys Representing All Interest Persons” requesting that they meet prior to 21 May 1974 “.. . to frame all the issues they desire to present to this Court on 21 May, as this Court wishes to make a determination of the question of all issues on May 28, 1974, to be transmitted to the Circuit Court for Talbot County without further delay.” Apparently action on the issues is abiding this appeal.

      . References are to the codification of Acts 1974, ch. 11, which revised Art. 93. Although not effective until 1 July 1974, the revision for the main part made changes only in style and language and will be so considered unless otherwise noted.

      . An affidavit of the Register of Wills, Superior Court of the District of Columbia, included in the record before us, states that a copy of the 1973 writing was filed with him. He informed counsel that he did not consider it to be a will for want of valid execution, as it was not attested and subscribed in the presence of the testator by at least two credible witnesses. “No Petition for Probate of the 1973 writing has ever been filed with this Court, nor would it be accepted for filing as a will since the 1973 writing is, under the law of this jurisdiction, not a will.” There was also filed with him a 1960 writing “apparently a carbon copy of a handwritten will, which carbon copy is signed and witnessed in ink.” The original of the 1960 writing, according to the Register, was not filed in the District of Columbia court.

      . Thelma P. Walker, surviving spouse of the decedent, renounced all provisions in the will and elected to take her intestate share of the estate.

      . Andrew Wright is Suzanne Walker Wright’s only child and is referred to in the will as “my grandson.” On 7 February 1974 Nugent filed a petition for the appointment of a guardian ad litem for the minor. On 16 April 1974 the Orphans’ Court by its order appointed W. Ben Wilson guardian ad litem for Andrew Wright and dismissed “All pleadings, papers and documents heretofore filed in this proceeding by Suzanne Walker Wright acting as Guardian, next friend or in any other capacity for or on behalf of the infant.

      . Section 4-102, “Execution — Writing; signature; attestation”, § 4-103, “Same — Holographic will”, and § 4-104, “Same — Will made outside Maryland” are under Subtitle IV — “Wills”, Part I — “Execution; Revocation; Revival”.

      Section 4-102 read: “Except as provided in §§ 4-103 and 4-104, every will shall be (i) in writing, (ii) signed by the testator, or by some other person for him, in his presence and by his express direction, and (iii) attested and signed by two or more credible witnesses in the presence of the testator.”
      Section 4-103 made valid a holographic will of a testator who is serving in the armed forces of the United States if signed by him and made at a place other than any of the states of the United States or the District of Columbia. Such will is void after one year from discharge unless the testator had died prior to the expiration of the year or did not then possess testamentary capacity.

      . Estates & Trusts Art., § 4-104 reads:
      “A will executed outside this state is properly executed if it is:
      (1) In writing;
      (2) Signed by the testator; and
      (3) Executed in conformity with the provisions of íj 4-102, or the law of the domicile of the testator, or the place where the will is executed.”

      . Patently it was not executed in conformity with Estates & Trusts Art., § 4-102. '

      . Rowe Co. v. Rowe, supra, the ease cited as authority for the conclusion in Collins, held that an order directing an executrix to intervene as a defendant in an equity proceeding to compel issuance of stock was “interlocutory, not final in its nature, and is, therefore, not appealable.”


author: Davidson, J.,

text:
    DOROTHY COPPOLINO et al. v. COUNTY BOARD OF APPEALS OF BALTIMORE COUNTY JOHN L. ASKEW et al. v. COUNTY BOARD OF APPEALS OF BALTIMORE COUNTY
    [No. 67,
    September Term, 1974.]

      Decided November 18, 1974

      The cause was argued before Morton, Davidson and Lowe, JJ.

      Harry S. Swartzwelder, Jr., for appellants Dorothy Coppolino et al.

      James D. Nolan and Newton A. Williams, with whom were Nolan, Plumhoff & Williams on the brief, for appellants John L. Askew et al.
    No appearance for appellee, County Board of Appeals of Baltimore County.
   Davidson, J.,

delivered the opinion of the Court.

This case presents the narrow question of whether the County Council of Baltimore County (Council) committed basic and actual “mistake”, as that term is used in zoning law, when on 24 March 1971 it adopted a comprehensive zoning map on which the subject property, consisting of 32.907 ± acres, was classified as D.R.-5.5 (Density Residential, 5.5 dwelling units per acre).

Most of the facts are not in dispute. The subject property, roughly rectangular in shape, lies m an area bounded by Belair Road on the west, Joppa Road on the north and Ebenezer Road on the south. All of the land lying within this area was classified in the D.R.-5.5 zone by the comprehensive zoning map adopted by the Council on 24 March 1971. The subject property fronts on the north side of Ebenezer Road and lies approximately one mile to the east of its intersection with Belair Road. It is bounded on the east by a relatively large expanse of land zoned D.R.-5.5 which is developed with single family residences. On the north, the subject property adjoins land zoned D.R.-5.5 which is essentially undeveloped. On the west, the subject property is bounded by a relatively large expanse of land zoned D.R.-5.5 which is developed with single family residences and which, in turn, is bounded by land upon which the Perry Hall Elementary and Junior High Schools are located. The Perry Hall High School, located on the south side of Ebenezer Road, confronts the subject property on the south. The elementary school is operating at near capacity while the junior and senior high schools are over capacity. Several additions to existing school facilities and some new schools are being planned.

The subject property is unimproved and heavily wooded. The eastern portion of its frontage reaches an elevation of 190 feet, an elevation approximately 35 feet above that of Ebenezer Road. The property falls from the 190 foot elevation at its southeast corner to a 120 foot elevation at its northwest corner. A large stream and flood plain runs along a portion of the western boundary of the subject property and then cuts across its northern corner. Test borings made in the flood plain indicate that below the earth’s surface there is rock which reaches a depth of approximately four feet and a visual inspection has revealed rock outcroppings all along the stream.

Since at least 1966 a new road, Perry Hall Boulevard, with a right-of-way of 110 feet, has been proposed to be located along a portion of the western boundary of the subject property. While the alignment and grade of this road already has been delineated, its actual design has not yet been developed. The Capital Budget indicates that Perry Hall Boulevard will not be constructed until FY 77-78. Until this road is built, all access to the subject property is via the intersection of Ebenezer and Belair Roads. Traffic at this intersection is at or over capacity so that an extensive delay occurs during peak hours. The construction of Perry Hall Boulevard should alleviate traffic congestion at this intersection.

Originally, the subject property consisted of three separate parcels of land. Parcel “A”, containing approximately 16 acres, was "L” shaped, with the east-west leg of the “L” being a rectangle containing all of the 1900 foot frontage along Ebenezer Road and the north-south leg of the “L” being a rectangle containing the southwestern portion of the tract. Parcel “B”, containing about four acres of land, was roughly triangular in shape and adjoined the northern boundary of the north-south leg of the “L”. It comprised the northwestern portion of the subject property. Parcel “C”, containing about 12 acres of land, also an essentially rectangular piece of property, adjoined the eastern boundary of the north-south leg of the “L” and the northern boundary of the east-west leg of the “L”. It contained all of the eastern portion of the property other than the rectangle of land comprising the east-west leg of the “L”. When the three parcels are united into one, as in this application, they form, as noted earlier, an approximate rectangle.

Parcel “A” was classified in the R.A. zone (Residential-Apartments) by the comprehensive zoning map adopted by the Council in August, 1966. The same comprehensive zoning map classified both parcels “B” and “C” in the R.-6 zone (Residence, one or two family, lot area 6000 square feet). In 1967 a petition was filed requesting reclassification of Parcel “B” from the R.-6 zone to the R.A. zone. The petition alleged that the comprehensive zoning map was in error with respect to Parcel “B”. In a report dated 20 December 1967, the planning staff of the Office of Planning and Zoning (Planning Staff) said:

“We regard the requested rezoning as a logical but minor consequence of an adjusted alignment for Perry Hall Boulevard, and we thus have no objection to the reclassification. We do not believe that the reclassification should be regarded as a change which in itself would justify further rezoning in this area in the future.”

The Zoning Commissioner (Commissioner) granted the requested reclassification of Parcel “B” to the R.A. zone on 3 January 1968. No appeal was taken.

On 3 August 1970 the Council amended the Baltimore County Zoning Regulations, such provisions to take effect 19 September 1970. By virtue of § 100.3A, which created a new set of zoning classifications, the classification of parcels “A” and “B”, formerly R.A., was redesignated D.R.-16 (Density-Residential, 16.0 density units per acre) while that of parcel “C” was changed from R.-6 to D.R.-5.5.

On a proposed zoning map dated 10 September 1970, prepared by the Planning Staff and approved for public hearing by the Baltimore County Planning Board (Planning Board), the entire 32 ± acre subject property was assigned a D.R.-16 zoning classification. On a subsequent zoning map, dated 24 November 1970, recommended to the Council by the Planning Board, following its “second round” of public hearings, the 32 acre tract was again designated in the D.R.-16 zone. No reasons for these designations appear in the record. On 24 March 1971 the Council, after holding numerous public hearings, adopted a comprehensive zoning map for the area. The subject property, as a whole, was classified in the D.R.-5.5 zone. Thus, the recommendation of the Planning Staff and the Planning Board to extend D.R.-16 zoning to that portion of the subject property which was formerly parcel “C” was rejected. Moreover, those parts of the subject property originally parcels “A” and “B”, both recommended by the Planning Staff and the Planning Board for retention in the D.R.-16 zone, were “downshifted” to the D.R.-5.5 zone. Several other properties lying on the south side of Ebenezer Road, previously classified as D.R.-16 and recommended for retention in that zone, were also “downshifted” to D.R.-5.5. The reasons for these actions do not appear in the record.

Within three weeks of the adoption of the comprehensive zoning map the legal owners of the property petitioned the Commissioner for a reclassification of the subject property to the D.R.-16 zone, alleging that there was error in the comprehensive zoning map with respect to the subject property. In its report concerning this petition the Planning Board noted that the intersection of Ebenezer and Belair Roads was operating at capacity; that the grant of the requested reclassification could change trip density from 1,650 trips per day to 4,000 trips per day; and that there were no plans in the Capital Budget through 1977 for the construction of Perry Hall Boulevard. The Board went on to say:

“The tract is surrounded on three sides by single-family houses, or vacant land for such use. The tract could be developed in apartments at D.R.-5.5 density. D.R.-16 zoning in the middle of the single-family development would constitute spot zoning. Furthermore, after reconsidering the Council’s actions not only on this property but in “downshifting” other properties from D.R.-16 to D.R.-5.5 on Perry Hall Boulevard, the petitioners’ proposal for D.R.-16 represents an intrusion into a moderate density neighborhood.”

The Board reversed the position it had taken prior to the adoption of the 1971 comprehensive rezoning map and recommended that the subject property be retained in the D.R.-5.5 classification. After a hearing the Commissioner found that the subject property could be developed in the D.R.-5.5 classification; that the land surrounding the subject property on three sides was zoned D.R.-5.5, and that the development of the subject property in the D.R.-16 zone would generate a trip density which the intersection of Ebenezer and Belair Roads “could not handle.” He concluded that the comprehensive zoning map was not in error in classifying the subject property in the D.R.-5.5 zone. On 22 March 1972 he denied the request for reclassification to the D.R.-16 zone.

An appeal was taken to the Board of Appeals (Board). The recommendation of the Planning Board was included as a part of the file. In addition a number of experts testified on behalf of the owners that the topography of the subject property, the presence of rock, drainage difficulties and other physical characteristics, all of which would entail prohibitive development costs, as well as the proximity of Ebenezer Road and Perry Hall Boulevard made the subject property unsuitable for development in the D.R.-5.5 zone. In contrast they testified that all of these factors combined with the availability of water and sewer, the location of minimal but adequate shopping facilities and a social and recreational center (Perry Hall High School) in close proximity to the subject property, made the tract eminently fitted for development in the D.R.-16 zone. Moreover, they said that the grant of the requested reclassification would not depreciate property values. They further stated that any adverse effect on traffic would be minimal and temporary and would be eliminated by the construction of Perry Hall Boulevard. Schools would not be over-burdened, they maintained, because the number of school children generated by the 524 apartment units permitted in the D.R.-16 zone would be less than that generated by the 181 single family units permitted in the D.R.-5.5 zone. They concluded that the Planning Board recommendation for D.R.-16 zoning on the entire tract, made prior to the adoption of the 1971 map, was correct and that the Council was in error in designating the subject property in the D.R.-5.5 zone on that map.

The protestants, neighboring homeowners, pointed to a report of the Planning Board issued during the October to April Cycle 1971-72 which indicated that as a result of the comprehensive rezoning of 1971 the county’s inventory of vacant land zoned D.R.-16 was increased from 3,200 acres to 3,700 acres; that that inventory could house two and one-half times the population anticipated by 1975; and, consequently, that such inventory would satisfy the need for apartment development until 1975 by which time the Planning Board would be planning for the comprehensive zoning of 1976. They offered testimony that the requested reclassification would have an adverse effect on the value of their properties; would exacerbate existing flooding problems on their properties; would aggravate already existing traffic congestion; and would place an additional burden on already over-capacitated schools.

On 17 July 1973 the action of the Commissioner was reversed in part and affirmed in part by the majority of the three member Board which felt that the Council’s action was “clearly in error and confiscatory in nature,” and that the petitioners “should at least be returned to the status which existed prior to the adoption of the 1971 comprehensive zoning map.” Accordingly, the Board granted reclassification of 20 + acres of the subject property (former parcels “A” and “B”) to D.R.-16 and retained the remaining 12 ± acres (former parcel “C”) in the D.R.-5.5 zone.

Two appeals were filed in the Circuit Court for Baltimore County, one by the protestants who appealed from that portion of the order which reclassified former parcels “A” and “B” to the D.R.-16 zone, and the other by the owners of the subject property who appealed from that portion of the order which retained former parcel “C” in the D.R.-5.5 zone. On 25 January 1974 Judge H. Kemp MacDaniel found that the issues before the Board were “fairly debatable” and affirmed the decision of the Board. Both the protestants and the owners appealed to this Court.

The applicable test for determining the scope of judicial review in a zoning case alleging error in a comprehensive rezoning has recently been restated in Trainer v. Lipchin, 269 Md. 667 (1973), in which the Court of Appeals, quoting from Stratakis v. Beauchamp, 268 Md. 643, 652-53 (1973), said:

“ ‘ . . . Where a legislative body, or a board of county officials, pursuant to authority conferred upon it, has granted a rezoning of property, the question on judicial review is whether or not such action is arbitrary and discriminatory or fairly debatable, Montgomery County v. Pleasants, 266 Md. 462, 295 A. 2d 216 (1972); Himmelheber v. Charnock, 258 Md. 636, 267 A. 2d 179 (1970); Chevy Chase Village v. Mont. Co., 258 Md. 27, 264 A. 2d 861 (1970); Smith v. Co. Comm’rs of Howard Co., 252 Md. 280, 249 A. 2d 708 (1969). We shall follow that test in considering this appeal.
“While, in recent years, we have had occasion to enunciate a number of important principles applicable to the law of zoning, perhaps none is more rudimentary than the strong presumption of the correctness of original zoning and of comprehensive rezoning. To sustain a piecemeal change in circumstances such as those present here, strong evidence of mistake in the original zoning or comprehensive rezoning or evidence of substantial change in the character of the neighborhood must be produced, Rockville v. Henley, 268 Md. 469, 302 A. 2d 45 (1973); Heller v. Prince George’s Co., 264 Md. 410, 412, 286 A. 2d 772 (1972); Creswell v. Baltimore Aviation, 257 Md. 712, 721, 264 A. 2d 838 (1970). Since, as we have also said, this burden is onerous, Cabin John Ltd. v. Montgomery Co., 259 Md. 661, 271 A. 2d 174 (1970); Creswell v. Baltimore Aviation, supra; Wells v. Pierpont, 253 Md. 554, 253 A. 2d 749 (1969), the task confronting appellants [appellees], whose application followed the comprehensive rezoning by merely four months, is manifestly a difficult one.’ ” (emphasis in original) 269 Md. at 672-73.

We find that the owners have failed to meet that test.

The owners initially contend that there was error in the 1971 comprehensive zoning map which “downshifted” former parcels “A” and “B” to the D.R.-5.5 zone. They maintain that the then equivalent of the D.R.-16 /classification, R.A. (hereinafter referred to as D.R.-16), assigned to former parcel “A” by the comprehensive rezoning of 1966, is presumed to be correct; that the correctness of this action was reaffirmed in 1968 when the Commissioner granted reclassification of former parcel “B” to the D.R.-16 zone, and was again reaffirmed when the Planning Staff and the Planning Board recommended in 1970 not only that former parcels “A” and “B” should be retained in the D.R.-16 zone but also that former parcel “C” should be reclassified to the D.R.-16 zone. The owners maintain that the then existing zoning of the subject property could not properly be altered by the Council unless there was evidence of error in the D.R.-16 classification assigned in 1966 or change in the character of the neighborhood subsequent to the assignment of that classification.

In support of this position the owners point out that Baltimore County Code (1972 Cum. Supp.) §§ 22-20 and 22.22.1 now require that a comprehensive rezoning of the entire county take place at least once in every four years. They argue that the frequent use of the comprehensive rezoning technique, absent the “change or mistake” rule, will permit arbitrary and capricious action on the part of the Council, which will undermine the permanence and stability of zoning classifications intended to be protected by the presumption of validity accorded comprehensive rezoning.

The Court of Appeals and this Court have consistently held that the “change or mistake” rule is not controlling in cases involving comprehensive rezoning. Scull v. Coleman, 251 Md. 6, 12 (1968); Trustees v. Baltimore County, 221 Md. 550, 560-61 (1960); McBee v. Baltimore County, 221 Md. 312, 316-17 (1960); Roberts v. Grant, 20 Md. App. 247, 253 (1974). The reason for this rule was set forth cogently in McBee, supra, at 316-17, where the Court of Appeals pointed out that:

“Where the matter is studied comprehensively, the inquiry into time and space with respect to change is naturally more extensive than on a single application. In short, the County Commissioners were here exercising a plenary power, delegated by the General Assembly, to legislate a new zoning for the whole County. The new map reflects changes occurring over a wide area, and takes into account future public needs and purposes. Hence, the legislative body is not confined to a consideration of changes in the immediate neighborhood. The so-called “change or mistake” rule applicable to piecemeal rezoning cases as stated in N. W. Merchants Term. v. O'Rourke, 191 Md. 171, 191, is not controlling here, because the new legislation is itself a comprehensive plan designed to cover a substantial area and to supersede the old zoning throughout that area. When such a new map is adopted, it is entitled to the same presumption that it is correct as is an original zoning.”

We see nothing in the “cyclical” zoning scheme adopted by the Council which impels a modification of this rule. The fact that comprehensive rezoning may occur in Baltimore County with greater frequency than has been the case in the past does not alter the fact that it will result from careful study of changes occurring in wide areas and an assessment of future public needs and purposes. Indeed, in our view, the system will enhance the stability and permanence of zoning classifications by assuring that the majority of zoning classifications are determined in accordance with a carefully considered integrated plan of development, based upon a full understanding of the present and future needs of a broad area, rather than upon a piecemeal review of limited scope. In any event, arbitrary and capricious action by the Council is prevented, and stability and permanence assured by the requirement that a comprehensive rezoning, in order to be valid, must bear a substantial relationship to the public health, comfort, order, safety, convenience, morals, and general welfare. Norbeck v. Montgomery County, 254 Md. 59, 66 (1969). Accordingly, we hold that under the cyclical zoning process established by Baltimore County the “change or mistake” rule is not controlling and that the absence of a showing of either change or mistake prior to a comprehensive rezoning does not constitute error.

The owners next complain that the Council erred in assigning the D.R.-5.5 classification to the subject property in that the subject property is unsuited for development in that zone. Indeed, the Board found the evidence before it sufficient not only to establish “error” but also to establish that the D.R.-5.5 zoning was “confiscatory in nature.” In our view the evidence presented was not sufficient to establish either “mistake” or an “unconstitutional confiscation” or, indeed, even to make those issues fairly debatable.

A number of expert witnesses expressed the opinion that the subject property was “unsuitable” for development in the D.R.-5.5 zone because of its topography, rock outcroppings, and proximity to Ebenezer Road and the proposed Perry Hall Boulevard. Yet they themselves conceded that single-family houses could be developed on the subject property, although there was doubt as to whether the maximum permitted density of 181 units could be achieved. They admitted that no details concerning development costs of single-family homes had been “worked up,” making it impossible to know whether that type of development would result in a profit or a loss. Furthermore, they acknowledged that single-family houses have been built on land adjoining the subject property on the east and west, some of which had topography similar to that of the subject property, and some of which fronted along Ebenezer Road. Thus, the basis of the experts’ opinion that the subject property was unsuitable for D.R.-5.5 development was confined exclusively to a consideration of the tract’s development for single-family use. There was not an iota of evidence presented to show that the maximum 181 dwelling units permitted in the D.R.-5.5 zone could not be developed successfully in some manner other than detached homes on the subject tract. In addition, there was no evidence presented to show that the subject property was unsuitable for development by way of special exception uses. Thus, the expert opinions that the subject property was not suitable for development in the D.R.-5.5 zone were totally unsupported by facts.

The Court of Appeals and this Court have stated that an opinion, even that of an expert, is not evidence strong or substantial enough to show error in the comprehensive rezoning or confiscation unless the reasons given by the expert as the basis for his opinion, or other supporting facts relied upon by him, are themselves substantial and strong enough to do so. Stratakis v. Beauchamp, supra, at 643, 655 (1973); Westview Park v. Hayes, 256 Md. 575, 582 (1970); Smith v. Co. Comm’rs of Howard County, 252 Md. 280, 284 (1969); Iverson v. Zoning Board, 22 Md. App. 265, 270 (1974). Moreover, the Court of Appeals has repeatedly held that in order to obtain a rezoning on the basis of an unconstitutional confiscation, an applicant must show that he has been deprived of all reasonable use of his property and that it cannot be used for any of. the permitted uses_ in the existing zone. Rockville v. Stone, 271 Md. 655, 662-64, 319 A. 2d 536 (1974); Trainer v. Lipchin, supra, at 675-76; Stratakis, supra, at 654; Mayor and Council of Rockville v. Henley, 268 Md. 469, 477 (1973); Cabin John Ltd. v. Montgomery Co., 259 Md. 661, 670 (1970); Montgomery Co. Council v. Kacur, 253 Md. 220, 229 (1969). Viewed in this light the expert testimony presented here does not pass muster.

The owners additionally assert that the Council erred because it failed to take into account the fact that Perry Hall Boulevard was to be constructed in FY 1977-78. Experts presented by the owners conceded that the intersection of Ebenezer and Belair Roads was overburdened at least in the evening peak hours. Nonetheless, they maintained that this problem was temporary in nature and would be alleviated when the proposed Perry Hall Boulevard was constructed.

The term error, as it is used in zoning law, does include the failure to take into account projects or trends reasonably foreseeable of fruition in the future. But in order to establish error there must be evidence to show that such developments were not, in fact, or could not have been, taken into account so that the Council’s action was premised on a misapprehension. Jobar Corp. v. Rodgers Forge, 236 Md. 106, 112 (1964); Rohde v. County Board, 234 Md. 259, 267-68 (1964); Pressman v. Baltimore, 222 Md. 330, 338-39 (1960); see Miller v. Abrahams, 239 Md. 263, 268, 272-274 (1965). Here, the record shows that the construction of Perry Hall Boulevard was planned as long ago as 1966; that in 1967 the Council granted reclassification to former parcel “B” because of a readjustment of that road; and that the Council had, in its Capital Budget, included money for the construction of that road in FY 1977-78. All of this evidence supports an inference that at the time of the comprehensive rezoning in 1971, the Council was aware of the proposed construction of Perry Hall Boulevard and the consequent possible improvement in the flow of traffic through the Ebenezer-Belaif Road intersection. This inference is buttressed by the fact that it was reasonable for the Council, armed with such an awareness, to conclude it to be in the public interest to prevent the intensification of the then existing congestion problem, at least until 1976 when another comprehensive rezoning, based on then current traffic studies, would be undertaken. In contrast, there is nothing in the record to support an inference that at the time of the comprehensive rezoning in 1971 the Council was unaware of the planned construction of Perry Hall Boulevard. Consequently, there is insufficient evidence to make fairly debatable the question of whether the Council erred in failing to consider the effect of the proposed construction of Perry Hall Boulevard.

Finally, the owners contend that the Council erred in failing to follow the recommendations of the Planning Staff and the Planning Board made prior to the comprehensive rezoning of 1971. Several expert witnesses testified that, in their opinions, the D.R.-16 classification assigned to former parcel “A” by the comprehensive rezoning of 1966 was correct; that the D.R.-16 classification recommended by the Planning Board and assigned to former parcel “B” by the grant of an individual map amendment in 1968 was correct; and that the recommendation of the Planning Staff and the Planning Board that former parcels “A” and “B” be retained in the D.R.-16 zone and former parcel “C” be placed in the D.R.-16 zone were correct. Consequently, they concluded that the Council erred by failing to follow such recommendations in assigning a D.R.-5.5 classification to the subject property.

The Court of Appeals and this Court have recognized that the recommendations of a planning body with respect to a comprehensive rezoning are not binding upon the legislative body. Nottingham Village v. Balto. Co., 266 Md. 339, 354 (1972); Miller, supra, at 272; Iverson, supra, at 269. Moreover, the Planning Staff and the Planning Board recommendations for D.R.-16 zoning were made in the form of a map with no reasons articulated for the D.R.-16 classification proposed. Such recommendations, even though emanating from the Planning Staff and the Planning Board, are insufficient to make the issue of mistake or confiscation “fairly debatable.” Cf. Stratakis, supra, at 656-57; Heller v. Prince George’s Co., 264 Md. 410, 418-19 (1972); Habliston v. City of Salisbury, 258 Md. 350, 361-62 (1970).

Under all of these circumstances the evidence before the Board that there was a mistake in the comprehensive rezoning or that the classification of the subject property in the D.R.-5.5 zone constituted a confiscatory action, was insufficient to make either of these issues fairly debatable. The judge below was not correct in affirming that portion of the Board’s order which granted reclassification of the 20 Í acres, formerly comprising parcels “A” and “B”, to the D.R.-16 zone. Accordingly, that portion of the order will be' reversed.

The Board denied reclassification of former parcel “C” from the D.R.-5.5 zone to the D.R.-16 zone. In order for the requested reclassification to have been granted it was necessary for the owners, among other things, to establish by strong and convincing evidence, that the D.R.-5.5 classification assigned by the comprehensive rezoning of 1971 was erroneous. The evidence of error with respect to former parcel “C” was weaker than that presented with respect to former parcels “A” and “B”. Whereas former parcels “A” and “B” had been zoned D.R.-16 before the ádoption of the 1971 comprehensive rezoning, former parcel “C” had been classified in the D.R.-5.5 zone since 1966. Weaker evidence than that which we have found to be insufficient to make the question of error as to former parcels “A” and “B” fairly debatable, manifestly, is insufficient to constitute the strong and convincing evidence of error required to be shown before a reclassification of former parcel “C” could be granted. On the basis of the evidence presented, the Board could not have properly granted the requested reclassification. Its decision to retain the 12 ± acres, formerly comprising parcel “C”, in the D.R.-5.5 zone was correct and the judge below properly affirmed that portion of the Board’s decision. Accordingly, that portion of the order will be affirmed.

Order affirmed in part and reversed in part.

Case remanded for the entry of an order in accordance with this opinion.

Costs to be paid by appellant owners.

      . These amendments were approved by the County Executive and officially enacted on 5 August 1970.

      . The date upon which the zoning application was filed does not appear in the record. The provisions of Baltimore County Code (1972 Cum. Supp.) §§ 22-22 (c) and (d) support an inference that the application was filed prior to 16 April 1971.

      . See Baltimore County Zoning Regulations (1970) § 1B01.1A. Among the permitted uses in D.R. zones are the following: one-family detached houses, one-family semi-detached houses, one-family group houses, two-family houses, town-house apartment buildings, garden apartments, other apartment buildings; and churches, hospitals, schools and research institutes. Section 1B01.1B sets forth certain restrictions on these permitted uses.

      . See Baltimore County Code (1972 Cum. Supp.) § 22-22 (c). This section establishes a schedule of semiannual recurring periods for the purpose of considering contemporaneous zoning reclassification petitions.

      . See Baltimore County Code (1972 Cum. Supp.) § 22-20 (d_). This section requires the Planning Board to recommend to the Council a complete countywide zoning map within the one-year period immediately preceding April 16, 1976, and within the one-year period immediately preceding every fourth year thereafter. The provisions of this section are mandatory. Code § 22.21.1 requires the Council to adopt a countywide zoning map before October 16, 1976 and before October 16 of each of the later years in which the Planning Board is required to submit a recommended countywide map.

      . Baltimore County did not appear in the proceedings either before the Circuit Court or before this Court.

      . See note 5, supra.

      . In their brief the owners assert that the flexibility allowed by the present D.R.-5.5 zoning classification was not available to them because much of the subject property falls within a residential transition area. Consequently, the tract is confined to single-family use. See Baltimore County Zoning Regulations (1970) § 1B01.1B. Section lBOl.lB.l.a. defines a residential transition area as:
      “any D.R.-l, D.R.-2, D.R.-3.5, D.R.-5.5, or D.R.-10.5 zone or part thereof which lies (a) within 300 feet of any point on a dwelling other than an apartment building, or (b) within 250 feet of any point lying within a vacant lot of record which is itself wholly or partially classified as D.R. and which is two acres or less in area.”
      Section lBOl.lB.l.b., which sets forth the use restrictions in such transition areas, would limit those portions of the subject property lying within a residential transition area to single-family development.
      The contention in the brief is unsupported by the evidence. Accordingly, we cannot consider this factor on appeal. Md. Rule 1085.

      . See Baltimore County Zoning Regulations § 1B01.1C, which establishes the following uses, among others, as permitted by way of special exception: conservatories for music or other arts; convalescent homes; community buildings, swimming pools, golf courses, country clubs, or other, similar civic, social, recreational or educational uses; and' private colleges.