MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	    2017	ME	175	
Docket:	      Wal-16-567	
Submitted	
  On	Briefs:	 July	19,	2017	
Decided:	     August	1,	2017	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                           ESTATE	OF	JOHN	W.	GILBERT	
	
	
GORMAN,	J.	

      [¶1]	 	 Judith	 Gilbert,	 individually	 and	 as	 personal	 representative	 of	 the	

Estate	 of	 John	 W.	 Gilbert,	 appeals	 from	 a	 judgment	 of	 the	 Waldo	 County	

Probate	 Court	 (Longley,	 J.)	 approving,	 with	 a	 modification,	 the	 report	 of	 a	

referee	for	the	distribution	of	the	estate.		Judith	argues	that	the	court	erred	by	

appointing	 a	 referee	 and	 adopting	 the	 report	 of	 the	 referee.	 	 We	 vacate	 the	

judgment	and	remand	for	further	proceedings.	

                                   I.		BACKGROUND	

      [¶2]		John	W.	Gilbert	died	on	February	2,	2011.		In	2012,	Judith,	John’s	

wife,	petitioned	for	informal	probate	of	John’s	will	and	sought	appointment	as	

personal	 representative.	 	 Since	 then,	 Judith	 and	 one	 of	 John’s	 sons	 from	 a	

previous	 relationship,	 Nathan	 A.	 Gilbert,	 have	 engaged	 in	 highly	 contentious	

and	protracted	litigation	regarding	the	disposition	of	John’s	estate.		See	Estate	

of	 Gilbert,	 2016	 ME	 92,	 ¶	 2,	 142	 A.3d	 583.	 	 Eventually,	 the	 court	 appointed	
2	

Judith	 as	 personal	 representative	 and	 declared	 that	 John	 died	 intestate.	 	 In	

addition,	because	the	parties	demonstrated	their	unwillingness	or	inability	to	

agree	on	any	aspect	of	the	litigation,	the	court	took	the	extraordinary	step	of	

ordering	 a	 “court-imposed,	 month-by-month,	 step-by-step	 court-supervised	

plan”	for	the	administration	of	the	estate.		See	id.;	18-A	M.R.S.	§	3-502	(2016).		

          [¶3]	 	 In	 2014,	 the	 court	 appointed	 a	 referee	 to	 “propose	 a	 plan	 of	

distribution.”		Eight	months	later,	the	referee	submitted	a	report	in	which	he	

inventoried	and	valued	the	property	of	the	estate;	calculated	the	debts	of	the	

estate,	 including	 liens	 against	 the	 real	 property;	 stated	 which	 heir	 should	

receive	 which	 items	 of	 personal	 property;	 identified	 the	 exemptions	 and	 the	

amount	 of	 the	 exemptions	 to	 which	 Judith	 was	 entitled;	 and	 concluded	 that	

the	 real	 property	 “must	 be	 sold	 to	 pay	 the	 debts	 of	 [the]	 estate.”	 	 Before	

submitting	his	report,	the	referee	had	not	conducted	a	hearing,	admitted	any	

evidence,	or	met	with	the	parties.		

          [¶4]	 	 Judith	 objected	 to	 the	 report	 on	 several	 grounds,	 including	 the	

referee’s	failure	to	comply	with	14	M.R.S.	§	1153	(2016).1		The	court	neither	


     1		Title	14	M.R.S.	§	1153	(2016)	states	as	follows:		

	
          §	1153.	Authority	of	referees	
          	
                  All	the	referees	must	meet	and	hear	the	parties;	but	a	majority	may	make	the	
          report,	which	is	as	valid	as	if	signed	by	all,	if	it	appears	by	the	report	or	certificate	of	
          the	dissenting	referee	that	all	attended	and	heard	the	parties.		They	may	allow	costs	
                                                                                                    3	

considered	those	objections	nor	acted	on	the	report	itself,	but	instead	issued	a	

decision	 in	 July	 of	 2015	 requiring	 Judith	 to	 sell	 the	 property	 of	 the	 estate	

consistent	with	the	referee’s	suggestion.		Estate	of	Gilbert,	2016	ME	92,	¶¶	4,	6,	

142	A.3d	583.		We	vacated	that	decision	in	Judith’s	subsequent	appeal,	and	we	

remanded	the	matter	for	the	court	to	conduct	a	hearing	on	Judith’s	objections	

and	 then	 determine	 whether	 to	 adopt,	 modify,	 or	 reject	 the	 report	 in	

accordance	with	the	required	procedure	set	out	in	M.R.	Civ.	P.	53(e)(2).		Estate	

of	Gilbert,	2016	ME	92,	¶	6,	142	A.3d	583.	

      [¶5]		On	remand,	the	court	conducted	a	hearing	to	consider	whether	to	

accept,	reject,	or	modify	the	referee’s	report.		The	only	evidence	presented	at	

the	hearing	was	the	testimony	of	a	Department	of	Health	and	Human	Services	

representative	regarding	the	amount	of	a	lien	on	the	estate’s	property,	Judith	

and	Nathan’s	testimony	that	the	referee	never	met	with	them	or	conducted	a	

hearing	before	issuing	his	report,	and	Judith’s	testimony	regarding	sums	she	

has	expended	on	behalf	of	the	estate.		By	judgment	dated	November	30,	2016,	




      or	not	to	either	party,	unless	special	provision	is	made	therefor	in	the	submission,	
      but	the	court	may	reduce	their	compensation.		Any	referee	may	swear	witnesses.		
      	
               A	referee	appointed	to	hear	a	dispute	concerning	real	property	must	report	
      the	 referee’s	 decision	 within	 one	 year	 of	 appointment	 by	 the	 court	 unless	 good	
      cause	for	extending	this	period	is	shown.	
4	

the	 court	 modified	 the	 referee’s	 findings	 as	 to	 the	 lien	 against	 the	 property	

and	otherwise	accepted	the	report.		Judith	appeals.	

                                     II.		DISCUSSION	

       [¶6]	 	 Title	 14	 M.R.S.	 §§	 1151-1155	 (2016),	 in	 conjunction	 with	 M.R.	

Civ.	P.	 53,	 govern	 the	 use	 of	 referees	 in	 civil	 actions.	 	 See	 M.R.	Prob.	 P.	 53	

(applying	 M.R.	 Civ.	 P.	 53	 to	 probate	 proceedings);	 see	 also	 4	 M.R.S.	 §	 501	

(2016)	(providing	for	the	appointment	and	compensation	of	a	referee	in	cases	

before	the	Supreme	Judicial	Court	and	the	Superior	Court).		In	general	terms,	a	

court	 may	 appoint	 a	 referee	 to	 complete	 certain	 tasks,	 including	 procuring	

witnesses,	 gathering	 evidence,	 and	 submitting	 a	 report	 to	 the	 court	 with	 the	

referee’s	 findings	 of	 fact	 and	 conclusions	 of	 law.	 	 14	 M.R.S.	 §§	 1151,	 1153,	

1154;	M.R.	Civ.	P.	53(a),	(c),	(d),	(e);	see	Hennessy	v.	Fairley,	2002	ME	76,	¶	17,	

796	A.2d	41	(“The	use	 of	 referees	is	provided	for	because	reference	relieves	

[judges	 and	 justices]	 from	 the	 necessity	 of	 conducting	 the	 trial	 and	 requires	

only	that	they	consider	the	acceptance	or	rejection	of	the	referee’s	report	and	

the	entry	of	judgment.”	(quotation	marks	omitted)).		In	a	nonjury	matter,	once	

the	referee	submits	a	report	to	the	court,	the	parties	have	an	opportunity	to	

object	 to	 the	 referee’s	 findings	 and	 conclusions	 before	 the	 court	 decides	
                                                                                                                  5	

whether	 to	 “accept,	 reject	 or	 recommit	 the	 report”	 to	 the	 referee.	 	 14	 M.R.S.	

§	1155;	see	M.R.	Civ.	P.	53(e)(2).		

        [¶7]	 	 In	 this	 second	 appeal,	 Judith	 advances	 several	 challenges	 both	 to	

the	 referee’s	 findings	 and	 conclusions	 and	 to	 the	 Probate	 Court’s	 decision	

adopting	 those	 findings	 and	 conclusions.	 	 We	 need	 address	 only	 one	 of	 her	

arguments.			

        [¶8]		As	Judith	correctly	points	out,	14	M.R.S.	§	1153	requires	that	“[a]ll	

the	 referees	 must	 meet	 and	 hear	 the	 parties.”	 	 Here,	 the	 record	 contains	 no	

indication	that	the	referee	held	a	hearing	of	any	type	or	met	with	either	party;	

the	referee’s	report	gives	no	indication	of	what	evidence	the	referee	relied	on	

or	where	he	obtained	that	evidence;	and	although	the	court	made	no	findings	

of	 fact	 as	 to	 whether	 the	 referee	 conducted	 such	 a	 hearing,	 both	 Judith	 and	

Nathan	testified	at	the	hearing	on	remand	that	he	did	not.		

        [¶9]	 	 We	 have	 long	 held	 that	 the	 court’s	 approval	 of	 a	 referee’s	 report	

after	 the	 referee	 did	 not	 undertake	 the	 proper	 procedure	 for	 gathering	 the	

requisite	evidence	is	error.2		See	Brann	v.	Inhabitants	of	Vassalboro,	50	Me.	64,	

65	(1862);	Thompson	v.	Mitchell,	35	Me.	281,	286	(1853);	Knowlton	v.	Homer,	
    2	 	 In	 Estate	 of	 Gilbert,	 2016	 ME	 92,	 ¶	 6,	 142	 A.3d	 583,	 we	 addressed	 only	 the	 Probate	 Court’s	

failure	to	conduct	a	hearing	regarding	whether	to	adopt	the	referee’s	report.		The	issue	now	before	
us	is	the	consequence	of	the	referee’s	failure	to	conduct	a	hearing	before	issuing	that	report—and	
whether	 the	 Probate	 Court	 therefore	 erred	 on	 remand	 in	 adopting	 a	 report	 unsupported	 by	 any	
evidentiary	basis.	
6	

30	Me.	552,	556	(1849);	Peterson	v.	Loring,	1	Me.	64,	68	(1820);	Short	v.	Pratt,	

6	Mass.	496,	498	(1810);	see	also	16	M.R.S.	§	651	(2016)	(applying	the	Maine	

Rules	 of	 Evidence	 to	 hearings	 conducted	 by	 referees);	 Karamanoglu	 v.	

Gourlaouen,	 2016	ME	 86,	 ¶	2,	 140	A.3d	 1249	 (“The	 referee	 held	 bifurcated	

hearings	[on	which	the	findings	and	recommended	disposition	were	based].”);	

Wechsler	 v.	 Simpson,	 2016	 ME	 21,	 ¶	6,	 131	A.3d	 909	 (“The	 referee	 held	 a	

one-day	hearing	in	August	2014,	where	both	parties	and	the	guardian	ad	litem	

testified.”);	Warren	v.	Warren,	2005	ME	9,	¶	2,	866	A.2d	97	(“The	referee	held	

a	hearing	over	three	days	in	June	2003	.	.	.	.	The	case	history	is	based	on	the	

record	 developed	 at	 the	 hearing.”);	 Hennessy,	 2002	 ME	 76,	 ¶	 4,	 796	 A.2d	 41	

(“The	hearing	before	the	referee	commenced	in	July	of	2000	.	.	.	.”);	Comber	v.	

Inhabitants	of	Dennistown,	398	A.2d	376,	380	(Me.	1979)	(“After	a	hearing,	.	.	.	

the	 referee	 [issued	 a]	 recommended	 [decision].”);	 Peaslee	 v.	 Pedco,	 Inc.,	

388	A.2d	103,	106	(Me.	1978)	(“The	referee	had	jurisdiction	to	hear	the	case	

and	make	a	report	of	his	findings	and	conclusions	on	the	basis	of	admissible	

evidence.”);	 Boothbay	 Harbor	 Condos.,	 Inc.	 v.	 Dep’t	 of	 Transp.,	 382	 A.2d	 848,	

853	n.8	(Me.	1978)	(“Proceedings	before	a	Referee	are	normally	conducted	in	

the	 same	 manner	 as	 a	 trial	 to	 the	 court.”).	 	 Because	 the	 referee	 failed	 to	
                                                                                       7	

conduct	a	hearing,	the	Probate	Court’s	adoption	of	any	portion	of	the	referee’s	

report	was	error.	

      [¶10]	 	 More	 troubling	 than	 this	 error,	 however,	 is	 the	 overarching	

question	of	why	a	referee	was	appointed	in	this	matter	at	all.		By	all	accounts,	

John’s	 estate	 is	 modest.	 	 It	 likely	 comprises	 real	 property	 on	 which	 sits	 a	

motor	home,	as	well	as	a	couple	of	motor	vehicles,	a	small	amount	of	cash,	and	

a	 few	 other	 items	 of	 personal	 property,	 with	 a	 total	 value	 of	 no	 more	 than	

$100,000.		Nevertheless,	in	the	five	and	a	half	years	since	this	litigation	began,	

the	parties	have	not	had	the	benefit	of	any	evidentiary	hearing	at	which	their	

disputes	about	the	composition	and	value	of	the	estate	have	been	heard,	nor	

any	 disposition	 based	 on	 an	 evidentiary	 record	 of	 any	 sort.	 	 See	 Peaslee,	

388	A.2d	at	106	(stating	that	“[d]ue	process	requires	that	before	a	party	can	

be	deprived	of	property	the	party	must	have	notice	and	an	opportunity	to	be	

heard”).		Meanwhile,	the	costs	associated	with	litigating	the	administration	of	

the	estate	have	continued	to	accrue,	and	may	already	have	exceeded	the	value	

of	the	estate;	in	January	of	2015,	for	example,	Nathan	sought	roughly	$35,000	

in	attorney	fees.		Indeed,	the	referee	appeared	to	recognize	the	incongruity	of	

the	situation	by	kindly	agreeing	to	forego	his	own	compensation.		We	need	not	

address	 Judith’s	 contention	 that	 she	 never	 agreed	 to	 the	 appointment	 of	 a	
8	

referee,	 nor	 her	 challenge	 to	 the	 scope	 of	 the	 work	 the	 referee	 was	 asked	 to	

perform;	 whatever	 the	 court’s	 and	 the	 parties’	 intent	 or	 understanding	 was,	

the	involvement	of	a	referee	in	the	matter	was	misguided.			

          [¶11]	 	 We	 therefore	 remand	 the	 matter	 for	 the	 Probate	 Court	 itself	 to	

conduct	an	evidentiary	hearing	on	the	composition	and	value	of	the	estate	as	

if	a	referee	had	never	been	involved	in	the	matter,	and	for	the	court	to	issue	an	

appropriate	 decision	 detailing	 the	 distribution	 of	 the	 estate	 consistent	 with	

the	 evidence	 produced	 at	 that	 hearing.3	 	 This	 evidentiary	 hearing	 must	 be	

conducted	and	the	resulting	judgment	issued	as	soon	as	possible,	so	that	the	

parties	 have	 some	 hope	 of	 finality	 in	 this	 unnecessarily	 complicated	

litigation.4	

          The	entry	is:	

                         Judgment	 vacated.	 	 Remanded	 to	 the	 Probate	
                         Court	 for	 further	 proceedings	 consistent	 with	
                         this	opinion.		




     3		The	court	has	already	made	a	factual	finding	based	on	an	evidentiary	record	regarding	the	size	

of	the	Department	lien.		It	need	not	revisit	that	issue.		

     4	
     	 We	 do	 not	 disturb	 the	 court’s	 order	 for	 supervised	 administration	 of	 the	 estate.	 	 See	
18-A	M.R.S.	§	3-502	(2016).			
                                                                                 9	

David Glasser, Esq., Camden, for appellant Judith Gilbert

Susan C. Thiem, Esq., Law Office of Susan C. Thiem, Lincolnville, for appellee
Nathan Gilbert


Waldo County Probate Court docket number 2012-0003
FOR CLERK REFERENCE ONLY
