Court to resolve question of where mother will be buried 

Posted: 7:00 pm Sun, November 8, 2009
By Steve Lash
Daily Record Legal Affairs Writer

ROCKVILLE — A bitter dispute among brothers over whether their deceased mother should remain buried in Maryland or be moved to Israel is headed to the Court of Special Appeals.

“This is an old question,” said Eric H. Singer, attorney for two brothers who want their mother buried in Israel, her adopted home and homeland of her Jewish people. “The strong public policy we’re dealing with is an ancient problem of how and where and when to bury our dead.”

The legal contretemps flared last winter during Sultana Edery’s final days, which she spent in the intensive care unit of Shady Grove Adventist Hospital in Rockville.

Three of Sultana’s adult children retained counsel and went to Montgomery County Circuit Court seeking an order to block their brothers, Hanan and Paul Edery, from having their mother, upon her death, transported to Israel for burial. The three — Shlomo and David Edery and Michael Ben-Canaan — sought to have their mother buried at Mt. Lebanon Cemetery in Adelphi, closer to her surviving family.

Hanan and Paul, Sultana’s primary caregivers in her final months, pressed their case that their mother’s fervent desire was to be buried in the southern Israeli city of Beersheba, near the final resting place of her late husband, Joseph, and a son, Avi.

Hanan and Paul appeared at the hearing without counsel, which they said was also in keeping with Sultana’s wishes.

“Mother said never, never should there be a situation where you go to court against your brother,” Hanan said. “I couldn’t see hiring an attorney against my siblings.”

Hanan and Paul lost. Montgomery County Circuit Judge Robert A. Greenberg issued a preliminary injunction on Feb. 20, naming Shlomo authorized agent for the burial of Sultana upon her death and prohibiting Paul and Hanan from removing her body from Maryland.

The brothers all live in Montgomery County, except for Michael, who resides in Nevada. Their sister, Hanna Ben-Yehouda, lives in Israel and was also a named party in the case on the side of the brothers seeking a Maryland burial.

Hanan and Paul continued the legal fight — this time with an attorney they met by happenstance.

Singer said he was in the technical services office at the Montgomery County Judicial Center in Rockville getting a court transcript on Feb. 20. Hanan and Paul were in the same room, getting a transcript after the preliminary injunction hearing.

“They turned around and said, ‘What kind of lawyer are you?’ ” recalled Singer, a Rockville solo practitioner.

Sultana, 86, died the next day and was buried at Mt. Lebanon Cemetery.

Paul, in recalling his mother’s final days, said she told him to “take me back to daddy, your daddy.”

To Sultana, Israel represented more than just her adopted home but a sacred place, as it is for many Jews of her generation who chose to move there in the decade following its independence in 1948, Paul said. He and Hanan, though a generation removed, also feel the tug of what they consider not only their childhood but their ancestral home.

Asked where they wish to be buried, the brothers responded in unison, “In Israel, of course.”

But David Edery said his mother, who had lived in Maryland since 1990, wanted to be buried not in Israel but near her surviving children and grandchildren, most of whom live in Maryland.

“Her wish was to be buried next to her children,” he said. “Her children are living here.”

David added that three of Sultana’s surviving sons, plus her daughter Hanna, wanted burial to be at Mt. Lebanon, while only two — Hanan and Paul — sought interment in Israel.

“It’s not their mother only,” David said. “It’s all the brothers’ mother.”

Ascertaining intent

Singer went to work on Hanan and Paul’s appeal, beginning with a review of the proceedings before Greenberg in which they appeared without counsel.

Singer said the judge made “grievous errors in civil procedure of constitutional dimensions,” and improperly rejected as inadmissible hearsay the planned testimony of three individuals who intended to tell the court that they had heard Sultana express her desire to be buried in Israel, Singer said.

In his appeal, Singer argues that such hearsay is admissible under a state law, the Maryland Health-General Article, in order to ascertain a person’s burial wishes.

Section 5-509 of the article provides for the disposition of a body when the deceased has not left behind a written document signed in the presence of a witness who also signs the document.

In such cases, the courts are to defer to the wishes of the next of kin “unless a person has knowledge that contrary directions have been given by the decedent.”

Singer said the only way for courts to ascertain those “contrary directions” in cases when the individual is too ill to testify on her own behalf, as Sultana was in her final days, is through the admission of hearsay testimony.

But M. Christina Hamilton, attorney for the siblings who want Sultana’s body to remain in Maryland, counters in court papers that there is no hearsay exception for burial wishes.

Hamilton, of Goren, Wolff and Orenstein LLC in Rockville, did not respond to telephone messages seeking comment on the case.

In her brief to the Court of Special Appeals, though, she also argues that the dispute regarding Sultana’s burial became moot upon her death and burial in February.

“To opine otherwise would raise the offensive alternative of disinterment,” Hamilton wrote.

To Paul and Hanan, though, the offensive alternative is leaving their mother buried in Maryland.

Drifting apart

The Edery brothers are Moroccan natives who came to the United States as young adults in the late 1960s and 1970s by way of Israel, where their parents had moved the family in 1956. Sultana and Joseph remained in Israel but visited their children in the United States in the late 1980s until Joseph got very sick and returned to Israel, where he died in 1989, Hanan said.

Joseph is buried in the Beersheba cemetery next to the couple’s son Avi, who had died in Israel.

A short time later, Sultana came to live in Montgomery County. Her daughter, Hanna, lives in Israel but had a strained relationship with the mother, according to Hanan.

“There was nobody in Israel to take care of her,” Hanan said of his mother.

During the past three decades, the brothers drifted apart, with Paul and Hanan in one camp and David, Shlomo and Michael in another. Part of that dispute centered on the care of their mother, with Paul and Hanan saying they provided most of the care and describing their brothers as largely absent.

The conflict came to a head as the health of their mother, wracked with heart trouble, vascular disease and diabetes, began to fail.

With the end near — and with knowledge of Paul and Hanan’s plans — David, Shlomo and Michael retained counsel in an effort to ensure Sultana would be buried here.

On Jan. 13, Hamilton, on behalf of the three brothers, filed a complaint in Montgomery County Circuit Court for injunctive relief, declaratory judgment and a petition for designation of authorizing agent. The next day, Judge Louise G. Scrivener granted a temporary restraining order, which was extended to Feb. 18.

On that date, Greenberg held a consolidated preliminary injunction and final merits hearing, at which Paul and Hanan represented themselves.

Singer called the consolidation of the preliminary and final hearings unfair to his clients, who were representing themselves at that point.

“You can’t consolidate a hearing when you’ve got pro se litigants,” Singer said.

Signed, but not verified

During the proceeding, Paul and Hanan sought to introduce family friend Reuben Ibghi’s testimony that, during his frequent hospital visits to Sultana, she often told him of her desire to be buried in Israel. The brothers also sought to introduce testimony from friend Felix Sabban, who planned to say he had heard Sultana tell another friend, David Kadosh, that she wanted to be buried in Israel.

Greenberg ruled Ibghi and Sabban’s testimony inadmissible hearsay. The judge also rejected a request that Kadosh be permitted to testify by telephone, saying that his testimony would also be inadmissible hearsay.

The judge did admit into evidence, but gave no weight to, a statement allegedly dictated to Kadosh and initialed by Sultana stating her desire to be buried in Israel. Greenberg said he could not verify that Sultana had actually initialed the document.

Singer, in his brief to the Court of Special Appeals, stated that Greenberg’s “radical and misplaced antipathy to hearsay evidence — and hence his fervent and erroneous view that the right to self-determination about the disposition of one’s own body hinges only upon a formally executed document — blinded him.”

But Hamilton countered in her brief that Greenberg’s hearsay rulings were correct.

Hamilton called Singer’s claim of a hearsay exception in cases of a burial request “completely unsound” and said it “would make a mockery of the rules of evidence if every relative of the deceased could walk into court and claim they have [a] statement from the deceased indicating where the deceased would like to be buried.”

Paul and Hanan said a deep chasm had grown among the brothers before their mother’s health failed and that the litigation was an act of spite. Hanan said he suspects that if he and Paul had said Sultana wanted to be buried in Maryland, the other brothers would have gone to court arguing for an Israeli burial.

“They cared only about the victory,” Hanan said.

But David said it is Hanan and Paul who are being unreasonable.

“They cannot take what others are saying,” David said. “They want to decide or dictate what’s going to be.”

David also expressed a desire for Hanan and Paul to drop their appeal.

“Why should it go any further?” he said. “She’s buried here and that’s all there is to it.”