MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision: 2019 ME 158
Docket:   Han-18-471
Argued:   October 10, 2019
Decided:  November 26, 2019

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                                    SEAN C. CLARK et al.

                                               v.

                                       BETH M. CLARK


MEAD, J.

         [¶1] Sean C. Clark appeals from a judgment of the Superior Court

(Hancock County, R. Murray, J.) denying his motion for summary judgment and

granting Beth M. Clark’s cross-motion for summary judgment. Sean’s complaint

sought a declaratory judgment that he and Jason A. Clark are each vested with

a one-eighth share of certain real properties as tenants in common with Beth.

On this record, we affirm the judgment of the Superior Court that Beth has

exclusive ownership of the properties, having acquired her brother Kevin’s

undivided half interest through a joint tenancy right of survivorship.

                                      I. BACKGROUND

         [¶2]     We review a ruling on cross-motions for summary judgment

“de novo, reviewing the trial court’s decision for errors of law and considering
2

the evidence in the light most favorable to the party against whom the judgment

has been granted in order to determine whether there is a genuine issue of

material fact.” Scott v. Fall Line Condo. Ass’n, 2019 ME 50, ¶ 5, 206 A.3d 307.

This case presents no genuine dispute of material fact. “We draw the facts from

the parties’ statements of material facts, all of which are supported by

references to the evidentiary record.” Lee v. Town of Denmark, 2019 ME 54, ¶ 2,

206 A.3d 907.

      [¶3] On December 28, 2009, Ruth M. Clark died testate. Ruth had three

children: Beth M. Clark, Kevin J. Clark, and Bruce A. Clark. Bruce predeceased

Ruth, while Beth and Kevin survived Ruth. Ruth’s heirs at law were Beth

(defendant-appellee);   Kevin;    and   two    grandsons,    Sean   C.   Clark

(plaintiff-appellant) and Jason A. Clark (party-in-interest), who are Bruce’s

children.

      [¶4] Ruth’s will devised her estate, which included two properties in

Sorrento and Great Pond (the properties), to Beth and Kevin to “equally share

and share alike.” Ruth’s will was admitted to informal probate, and Beth was

appointed personal representative of the estate on January 11, 2010. Beth and

Kevin met with an attorney, who discussed with them the differences between

taking title as tenants in common or as joint tenants, and who testified in his
                                                                                                   3

deposition that Beth and Kevin expressed their clear desire for a joint tenancy.

Acting as personal representative, Beth executed deeds of distribution to the

properties to herself and Kevin as “joint tenants” on June 30, 2010. Neither

Beth nor Kevin challenged the joint tenancy nature of the deeds of distribution

thereafter.1 On January 10, 2017, Kevin died intestate, unmarried, and without

issue, leaving Beth, Sean, and Jason as his sole heirs.

       [¶5] On April 4, 2017, Sean and Jason2 filed a complaint, later amended,

in the Superior Court seeking a declaratory judgment that they were each

entitled to a one-eighth interest in the properties as tenants in common with

Beth. See 14 M.R.S. § 5954 (2018). The parties filed cross-motions for summary

judgment pursuant to M.R. Civ. P. 56, and the court granted a summary

judgment to Beth on November 1, 2018.

       [¶6] Sean appeals, arguing that (1) Beth and Kevin took title as tenants

in common immediately upon Ruth’s death; (2) as Ruth’s personal

representative, Beth lacked the authority to unilaterally change the devise from

a tenancy in common to a joint tenancy; and (3) Beth and Kevin could not alter


   1 Sean denied this fact in his response to Beth’s opposing and additional statements of material
fact. However, his denial spoke to a different issue—whether Sean and Jason had standing to
challenge the distribution before Kevin’s death—and failed to provide a record citation. As such, the
fact was not properly controverted and is deemed admitted. See M.R. Civ. P. 56(h)(4).

   2 Prior to this appeal, Jason removed himself as co-plaintiff and became a party-in-interest. See
M.R. Civ. P. 21.
4

the property interest from a tenancy in common to a joint tenancy without a

written agreement pursuant to 18-A M.R.S. § 3-912 (2018).3

                                        II. DISCUSSION

A.     Nature of Title and the Power of the Personal Representative

       [¶7] We interpret the Probate Code de novo as a question of law. Estate

of Cabatit v. Canders, 2014 ME 133, ¶ 11, 105 A.3d 439. In our review, “we first

look to the plain meaning of the statute, interpreting its language to avoid

absurd, illogical, or inconsistent results.” Estate of Reed, 2016 ME 90, ¶ 6,

142 A.3d 578 (quotation marks omitted).

       [¶8] The plain language and intent of Maine’s Probate Code, which is

modeled on the Uniform Probate Code (UPC), support Beth’s theory of the

case—that vesting of title upon the decedent’s death is conditioned upon

administration of the estate.4 Title 18-A M.R.S. § 3-101 (2018) provides,

       Upon the death of a person, his real and personal property devolves
       to the persons to whom it is devised by his last will . . . , subject . . .
       to administration.


   3 The Maine Probate Code was recently repealed and recodified. All Probate Code citations in this

opinion are to the repealed 2018 version. The relevant text is unchanged in the new codification. See
P.L. 2017, ch. 402, § A-2 (codified at 18-C M.R.S. §§ 3-101, 3-711, 3-715, 3-907, 3-912 (2018));
P.L. 2019, ch. 417, § A-103 (establishing effective date of September 1, 2019).

   4 To the extent that any latent ambiguity may linger regarding the language and intent of the UPC,

the Maine Probate Law Revision Commission, Report of the Commission’s Study and
Recommendations Concerning Maine Probate Law (Oct. 1978), and leading treatises offer solid
support for our conclusions.
                                                                              5

(Emphasis added.) Citing a string of cases that predate Maine’s enactment of

the UPC, Sean argues that section 3-101 merely codifies the common law rule

that title to real property passes at the moment of the decedent’s death.

However, as the Superior Court observed, Sean’s interpretation “discounts the

impact the phrase ‘subject . . . to administration’ has on the devolution” of

property. To aid its interpretation, the court drew from the rationale expressed

in a recent North Dakota Supreme Court decision, which we now adopt in part.

Estate of Hogen, 863 N.W.2d 876 (N.D. 2015).

      [¶9] In Estate of Hogen, Arline Hogen’s will devised her property equally

to her two surviving sons, Steven and Rodney Hogen. Id. at 881. Steven, acting

as the personal representative of the estate, sought a retainer against Rodney,

claiming that Rodney owed payments to Arline before her death and that her

estate was thus authorized to offset the indebtedness. Id. Among other things,

Rodney argued that his share of Arline’s property “vested in him immediately

upon her death” under North Dakota’s version of UPC section 3-101. Id. at 884.

See N.D. Cent. Code § 30.1-12-01 (2015). The North Dakota Supreme Court

rejected Rodney’s argument, concluding that under the UPC, title vests subject

to administration, rather than vesting immediately upon the decedent’s death.
6

See Estate of Hogen, 863 N.W.2d at 884-89. In ruling, the court conducted an

extensive analysis of a number of UPC provisions. Id.

      [¶10] The UPC signaled a shift that broadened the powers of the personal

representative. See Maine Probate Law Revision Commission, Report of the

Commission’s Study and Recommendations Concerning Maine Probate Law

242, 259, 267-68 (Oct. 1978). Section 3-711 of Maine’s Probate Code grants a

personal representative

      the same power over the title to property of the estate that an
      absolute owner would have, in trust however, for the benefit of the
      creditors and others interested in the estate. This power may be
      exercised without notice, hearing or order of court, except as
      limited by this section.

18-A M.R.S. § 3-711 (2018) (emphasis added). Sean is correct that a personal

representative holds “power” over the title rather than title itself. However, the

UPC’s drafters explained that this distinction “eases the succession of assets

which are not possessed by the personal representative. Thus, if the power is

unexercised prior to its termination, its lapse clears the title of devisees and

heirs.” U.P.C. § 3-711 cmt., included with 18-A M.R.S.A. § 3-711 (2012); see

Estate of Hogen, 863 N.W.2d at 885.

      [¶11] As a leading treatise on the UPC has explained,

      Since the [personal representative] has a “power over the title”
      rather than “title[,”] no gap in title will result if the [personal
                                                                                   7

      representative] does not exercise his power during the
      administration. The title of the heir or devisee, however, is “subject
      to administration”; hence, it remains encumbered so long as the
      estate is in administration or is subject to further administration.

Ass’n of Continuing Legal Educ. Adm’rs, Uniform Probate Code Practice Manual

318 (Richard V. Wellman ed., 2d ed. 1977); see Estate of Hogen, 863 N.W.2d at

885. As a Maine treatise confirms, the personal representative’s power over

title “permits the personal representative to sell or convey the property. If this

power is not exercised, title remains with the heirs or devisees to whom the

property devolved upon the death of the decedent, under Section 3-101.”

Hunt, Maine Probate Law § 3.711 at 173 (1999). Where, as here, the personal

representative exercises her administrative powers, passage of title is subject

to those powers.

      [¶12] That said, a personal representative’s powers, though broad, are

not unbridled. The Code provides important safeguards to curb potential

abuses of power by the personal representative. As an example, section 3-711

characterizes the personal representative as a fiduciary, a trustee who must

treat property “in trust . . . for the benefit of the creditors and others interested

in the estate.” 18-A M.R.S. § 3-711. Further, the Probate Code provides a
8

number of avenues for “interested persons”5 to challenge a personal

representative’s actions. See U.P.C. § 3-711 cmt., included with 18-A M.R.S.A.

§ 3-711 (2012) (highlighting UPC sections 3-501 (supervised administration),

3-605 (demand for bond), 3-607 (order restraining personal representative),

and 3-611 (removal of personal representative)). Relative to her duties as

personal representative of Ruth’s estate as provided by Ruth’s will, Beth owed

a duty to herself and Kevin as devisees, but neither she nor Kevin challenged

the deeds of distribution.            Therefore, upon these facts, Beth was clearly

authorized to act in her capacity as personal representative and no breach of

any fiduciary duty has occurred.

       [¶13] The deeds of distribution effectively conveyed the properties in

joint tenancy. If Beth had first conveyed the properties by way of deeds of

distribution to herself and Kevin as tenants in common and then she and Kevin

had jointly conveyed the properties to themselves as joint tenants, there would

be no question that Beth would now own the properties in full. Thus, the issue,

as posed by Sean, is whether the deeds of distribution that Beth (acting in her




    5 Under the Code’s definition, interested persons include “heirs, devisees, children, spouses,

domestic partners, creditors, beneficiaries and any others having a property right in or claim against
a trust estate or the estate of a decedent.” 18-A M.R.S. § 1-201(20) (2018).
                                                                                9

capacity as personal representative) conveyed to herself and Kevin as joint

tenants effectively created a joint tenancy.

      [¶14] Sean relies on language in section 3-907 to assert that the deeds of

distribution serve as mere evidence of title rather than as conveyances of title

itself. Section 3-907 provides,

      If distribution in kind is made, the personal representative shall
      execute an instrument or deed of distribution assigning,
      transferring or releasing the assets to the distributee as evidence
      of the distributee’s title to the property.

18-A M.R.S. § 3-907 (2018). But section 3-907 by its plain language does not

indicate that a deed of distribution only serves as evidence of title rather than

title itself. “The ‘release’ contemplated by [section 3-907] would be used as

evidence that the personal representative had determined that he would not

need to disturb the possession of an heir or devisee for purposes of

administration.” U.P.C. § 3-907 cmt., included with 18-A M.R.S.A. § 3-907

(2012). As the Superior Court acknowledged, “[t]he language of Section 3-907

is designed to cover instances where the instrument of distribution operates as

a transfer, as well as those in which its operation is more like a release.” See

U.P.C. § 3-907 cmt., included with 18-A M.R.S.A. § 3-907 (2012). Here, the

personal representative’s deeds of distribution operated as a transfer of title to

herself and Kevin as joint tenants.
10

B.    Section 3-912

      [¶15] Section 3-912 of the Code reads in part,

      Subject to the rights of creditors and taxing authorities competent
      successors may agree among themselves to alter the interests,
      shares, or amounts to which they are entitled under the will of the
      decedent . . . in any way that they provide in a written contract
      executed by all who are affected by its provisions. The personal
      representative shall abide by the terms of the agreement subject to
      his obligation to administer the estate . . . .

18-A M.R.S. § 3-912 (emphasis added). As we have previously determined,

“[o]n its face, section 3-912 sets forth the requirements for a contract among

successors to be binding on a personal representative.” See Estate of Snow,

2014 ME 105, ¶ 16, 99 A.3d 278 (citation omitted); see Maine Probate Law

Revision    Commission,      Report    of    the   Commission’s      Study    and

Recommendations Concerning Maine Probate Law 388, 390 (Oct. 1978)

(“Indeed, the focus of UPC 3-912 is on the effect of such agreements on the

personal representative.”). See also Hunt, Maine Probate Law § 3.912 at 214-15

(“The purpose is to assure that a personal representative, in seeking to fulfill

the obligation to administer an estate and make distribution as provided in the

will or the laws of intestate succession, will not insist on making distribution in

a fashion contrary to the wishes of the distributees.”). In sum, contrary to

Sean’s contention, section 3-912 did not require Beth and Kevin to execute a
                                                                             11

written agreement to receive their shares in joint tenancy. Rather, the section

permits successors who are not personal representatives to use a writing to

bind the personal representative.

      [¶16] The Superior Court correctly concluded that section 3-912 did not

prevent the distributions Beth made as personal representative. The court

found that Beth and Kevin, the only successors to the will, did not enter into a

written agreement to bind Beth as personal representative. It is clear from the

record, however, that Beth and Kevin, after speaking with an attorney, mutually

chose to take ownership as joint tenants. Section 3-912 is of no consequence

here because the parties to the agreement were the personal representative

herself and Kevin, and both agreed to take title to the properties as joint

tenants. No written agreement was necessary to compel Beth to make the

transfer. The Superior Court correctly concluded that Beth was entitled to

summary judgment.

      The entry is:

                  Judgment affirmed.
12

Barry K. Mills, Esq. (orally), Hale & Hamlin, LLC, Ellsworth, for appellant Sean
C. Clark

Allison A. Economy, Esq., and Jonathan P. Hunter, Esq. (orally), Rudman
Winchell, Bangor, for appellee Beth M. Clark


Hancock County Superior Court docket number RE-2017-13
FOR CLERK REFERENCE ONLY
