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In the Orp hans' Co urt for Baltim ore Cou nty Estate No. 90634

IN THE COURT OF APPEALS OF MARYLAND No. 67 September Term, 2004 ______________________________________

SCOTT C. BREWER

v.

WALTER L. BREWER, JR., PERSONAL REPRESENTATIVE OF THE ESTATE OF MAY C. BREWER

______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinio n by Wiln er, J., Raker, J., dissents. ______________________________________ Filed: April 8, 2005

The ultimate issue before us is whether the Orphans' Co urt for Baltim ore Cou nty erred in denying a p etition to reop en an Esta te that had been closed for more than 20 months. In the Orphans' Court and in the Court of Special Appeals, a num ber of subsidiary questions were raised bearing on that issue, including whether the petition was timely. The only substantive question raised in the petition for certiorari was whether an agreement among all of the ben eficiaries to distribute certa in assets of the Estate in a manner different from that provided for in the testatrix's Will required submission to and approval by the Orphans' Court. We sha ll answer th at question, a s framed , in the negativ e, but, in order to resolve the case properly, we shall also have to address some other issues, including that of timeliness, as well. 1

Maryland Rule 8-131(b) provides, in relevant part, that, unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals, the Court of Appeals "ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court o f Appe als." We h ave tende d to apply that R ule strictly and will generally not consider an issue that was not raised in a petition or crosspetition , even if it is an im portan t issue th at was r aised an d decid ed in the lower c ourts. Nonetheless, deliberate insertion of the adverb "ordinarily" in the Rule precludes it from being a jurisdictional impediment, and, on rare occasions, we will consider an issue not clearly presented in a petition or cross-petition if the issue is truly important to the outc ome and our a ddre ssing it w ill no t prejudice an y party. That is precisely the case here. The issu e framed by petitioner, whe ther the Court of Special Appeals erred in holding that notice, disclosure, and judicial approval of a redistribution agreement is not required necessarily includes consideration of whether such an agreement is even permissible. As to timeliness of the petition to reopen, that was a major issue in both the Orphans' Court and the Court of Special Appeals. It was raised by Walter, Jr. in his brief in this Court ("The Petition to Reopen the Estate was filed by the Appellant . . . over twenty months after the issuance of the Order closing the estate by the Orphans' Court, and well after the applicable limitations periods in

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