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06/14/93 EASTER SEAL SOCIETY FOR DISABLED CHILDREN

June 14, 1993

EASTER SEAL SOCIETY FOR DISABLED CHILDREN, ET AL, APPELLANTS
v.
JEFFREY R. BERRY, ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Eugene N. Hamilton, Trial Judge)

Before Steadman, Schwelb, and King, Associate Judges

The opinion of the court was delivered by: King

KING, Associate Judge: Appellants appeal from a Superior Court order dismissing with prejudice their complaint challenging the validity of a will. Appellants contend that the trial court erred in dismissing their complaint either on the ground that it was not filed in a timely manner or that it was improperly verified. *fn1 We agree with appellants and reverse the order of the trial court.

I.

The action in the trial court was initiated to contest the validity of the Last Will and Testament of Sue L. Firestone, dated February 10, 1987, on the ground that Ms. Firestone was not "of sound and disposing mind" when she executed the will. The 1987 will purported to replace Ms. Firestone's prior will, dated September 10, 1970, which had directed that her estate, after payment of all just debts and funeral expenses, he distributed to a number of charities specified in that will. Appellants are beneficiaries named in Ms. Firestone's 1970 will, who were not named a beneficiaries in the 1987 will.

Following Ms. Firestone's death on January 11, 1991, the Superior courts appointed appellee Jeffrey R. Berry on April 24, 1991, as the personal representative of Ms. Firestone's estate, and admitted her will to probate. See D.C. Code §§ 20-311, -312 (1989). The notice of appointment was first published on May 9, 1991, and it provided, inter alia, that any objections to the probate of the decedent's will must be filed on or before November 9, 1991. November 9, 1991 was a Saturday.

On November 12, 1991, appellants filed a complaint contesting the validity of the 1987 will, contending that Ms. Firestone was not of sound mind when she executed it. Appellees filed a Motion to Dismiss Complaint to Contest the Validity of a Will for Lack of Jurisdiction. They argued that the complaint should be dismissed because: 1) the complaint was not filed within the six-month period prescribed by statute, and 2) the complaint violated the statutory verification requirement since it was verified by an attorney and not by the actual party. In support of their first point, appellees argued that while anyone may file a verified complaint to test the validity of a will "within 6 months following notice by publication of the appointment . . . of a personal representative," see D.C. Code § 20-305 (1989), that provision is a "substantive statutory provision enacted by the Council of the District of Columbia" creating the right of action that appellants purport to assert, and is therefore jurisdictional. Accordingly, appellees argued that even though the six-month time period for contesting the will ended on a Saturday, Super. Ct. Civ. R. 6(a) cannot justify filing on the following Tuesday (Monday was Veterans' Day, a legal holiday) because Super. Ct. Civ. R. 82 provides that the Superior Court Rules of Civil Procedure "shall not he construed to extend . . . the jurisdiction of this court." Under appellees' interpretation, the complaint would have been timely only if it had been filed on or before November 9, 1991.

In support of their second argument, i.e., that verification must "be made and executed by the party seeking to challenge the will," appellees contended in their motion to dismiss that verification by appellants' trial counsel was inadequate. They maintained that officers of the plaintiff corporations, the actual parties to the action, should have verified the complaint, and that failure to provide such verification rendered the complaint insufficient to invoke the jurisdiction of the court under § 20-305.

Appellants, in their opposition to the motion to dismiss, contended that the complaint was timely since D.C. Code § 20-305 permits a complaint to be filed "within 6 months" of the publication of a personal representative, and the six-month time period ended on a Saturday. Appellants maintained that Super. Ct. Civ. R. 6(a) extended the time for filing to November 12, 1991, the day of actual filing, because there was an intervening Sunday and a Monday holiday. They also argued that verification by an attorney was proper under Super. Ct. Civ. R. 9-I, which expressly permits an attorney to provide verification when a corporation is a party.

After the motion and response were filed, the trial court entered an order which stated: "Upon consideration of Personal Representative Jeffrey R. Berry's and defendant legatees' Motion to Dismiss Complaint' to Contest the Validity of a Will for Lack of Jurisdiction, and any opposition thereto, it is this 5th day of February, 1992, hereby ORDERED that the Motion to Dismiss be GRANTED, and the Complaint is hereby DISMISSED with prejudice." We conclude that the trial court erred in so ordering and we therefore reverse.

II.

Appellees' contention that Super. Ct. Civ. R. 6(a) is inapplicable to the circumstances of this case is based on two separate and independent grounds. First, appellees argue that the six-month filing requirement is "jurisdictional," and therefore Rule 6(a) cannot apply to extend that time period since Rule 82 provides that the rules of court may not be construed to extend the jurisdiction of the trial court. Second, appellees argue that even if the filing requirement is a statute of limitation, rather than a jurisdictional element, Rule 6(a) should not be read to apply to statutes of limitation. We reject both contentions.

a.

Super. Ct. Civ. R. 6(a) ...


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