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                                            2017 VT 15

                                           No. 2016-293

In re Appeal of the Estate of Elaine A. Holbrook,                Supreme Court
Late of Salisbury, Vermont
(David Holbrook, Cheryl Holbrook and                             On Appeal from
Charles Holbrook III, Appellants)
                                                                 Superior Court, Addison Unit,
                                                                 Civil Division

                                                                 January Term, 2017


Samuel Hoar, Jr., J.

Peter F. Langrock and Avi J. Springer of Langrock Sperry & Wool, LLP, Middlebury, for
 Appellants.

Kathleen M. Boe and James F. Carroll of Carroll, Boe & Pell, P.C., Middlebury, for Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Morris, Supr. J. (Ret.),
         Specially Assigned


       ¶ 1.    REIBER, C.J. The question presented in this will contest is whether the trial court

correctly determined on summary judgment that the testator intended a last will and testament

which she executed on the eve of surgery to be absolute rather than contingent on her surviving

the surgery. We conclude that summary judgment was premature in this case because material

factual issues remained in dispute concerning the testator’s intent, and therefore reverse.

       ¶ 2.    This is the second appeal to reach the Court in this matter. In the first, In re Estate

of Holbrook (Holbrook I), 2016 VT 13, ___ Vt. ___, 140 A.3d 788, we summarized the basic

underlying facts as follows:
                Testator [Elaine A. Holbrook] died on February 3, 2013. She was
               survived by six children, including appellant-executors [David and
               Cheryl Holbrook], appellee [Amy Holbrook], and seven
               grandchildren, including appellant-grandson [Charles Holbrook III].
               Testator did not have a surviving spouse.

                On January 22, 2003, testator signed a three-page handwritten
               document entitled “My Last Will & Testament.” The will is in the
               form of a letter and is addressed “To all my children.” The first
               sentence of the document—and the main source of contention
               between testator’s children—reads as follows: “In the event that I
               don’t make it through surgery on Thurs the 23rd of Jan. ’03, I wish
               to bequeath you all of the property and personal belongings divided
               equally to the six of you & to the seven grandchildren.” Testator
               did, in fact, survive the surgery in January 2003 and lived for ten
               more years before her death in 2013.

Id. ¶¶ 2-3 (footnote omitted).

       ¶ 3.    As we further recounted, the will named two of testator’s children as executors—

appellants David and Cheryl Holbrook—who submitted the will to the probate division together

with a petition to open a probate estate and a list of “interested persons” identifying testator’s

children and grandchildren. Id. ¶¶ 4-5. In February 2013, the probate court issued an order

allowing the will. There was no appeal. Id. ¶ 6. In March 2013, appellant-executors filed an

updated inventory valuing the estate at over $500,000. Id. ¶ 7.

       ¶ 4.    In April 2013, appellee Amy Holbrook filed a motion with the probate court

seeking clarification of the will. Appellant-executors responded with two motions questioning

whether the will was properly allowed, raising issues concerning the will’s execution, ambiguity

in its devise, notice to the grandchildren, and whether the will was “conditional”1 and therefore

invalid.2 In December 2013, the probate court ruled that the will was properly allowed despite the



       1
           As we explained in the first appeal, “A conditional or contingent will is simply a will
that will take effect only upon the happening of a specified contingency.” Holbrook I, 2016 VT
13, ¶ 1 n.1 (quotation omitted).
       2
          Appellant-grandson filed a separate motion raising the same improper-notice claim as
appellant-executors.
                                               2
lack of proper notice to the grandchildren; that the devise was unambiguous, creating a thirteen-

part bequest of equal shares to the six children and seven grandchildren; and that the will was

absolute rather conditional. Id. ¶¶ 8-11.

       ¶ 5.     Appellants timely appealed the probate court ruling to the trial court, and appellee

in response moved to dismiss the appeal. The trial court granted the motion to dismiss the

conditional-will and notice claims, concluding that they were not timely raised, and granted

summary judgment in favor of appellee on the issue of ambiguity in the devise, agreeing with the

probate court that the will had created a thirteen-part division of the estate. Id. ¶ 11.

       ¶ 6.    On appeal, we affirmed in all respects except for the dismissal of the conditional-

will claim, which we found was properly raised following the allowance of the will. Id. ¶ 26.

Because the court had declined to address the issue, we remanded for consideration of that one

remaining claim.

       ¶ 7.    The parties thereafter filed cross-motions for summary judgment, and the trial court

subsequently issued a written decision in favor of appellee. Relying on the parties’ respective

statements of undisputed facts and supporting affidavits, the court concluded that the will was not

conditional but absolute. In explaining its decision, the court noted that appellant Cheryl Holbrook

had filed an affidavit stating that the notebook containing the will was not found in any special

location maintained for safekeeping but rather “was buried” under a stack of other papers in

testator’s living room, and that testator had “never told anyone in the family” that she had made

the will. The trial court observed that these statements could suggest that testator had not intended

the will to be absolute since she did not consider it important enough to file in a prominent place

where it could easily be found, nor did she inform any of her children of its location.

       ¶ 8.    Appellee Amy Holbrook had also filed an affidavit, however, challenging Cheryl

Holbrook’s principal claims. Amy Holbrook maintained that the will was found in an area where

testator had “held office” for many years and represented “to her a very safe and meaningful

                                                  3
location.” She also asserted that the siblings had spent time searching for the will precisely because

they all had reason to believe that there was a will. The trial court observed that these assertions

could “support an inference that [testator] intended the will to remain valid for the rest of her life

and that she assumed that her family would find it.”

        ¶ 9.    The court characterized the conflicting evidence as “ambiguous” and found that

neither of the competing inferences from the evidence was “more compelling than the other.”

Under these circumstances, the court concluded that “the presumption against intestacy” must

control, and thus precluded a construction of the will as conditional. As the court explained, where

“both the will and the surrounding circumstances are ambiguous . . . the presumption against

intestacy . . . requires that the court construe the will as absolute.” Accordingly, the court ruled

that the will was effective in “creating an equal, thirteen-part devise to [testator’s] six children and

seven grandchildren.” This appeal followed.

        ¶ 10.   Many of the basic principles necessary to a resolution of the instant appeal were

previously outlined in Holbrook I and may be briefly summarized. As we explained, “[T]here is

a uniform consensus among states . . . that the concept of a will being conditioned on the happening

of an event is permissible.” Id. ¶ 23. Therefore, “a will may be made contingent on the happening

of a condition named therein so that the failure of the condition to occur means there is no will.”

Id. “To determine whether the conditional language is a statement of the [testator’s] motive or

inducement for making the will, or whether the testator clearly intended the instrument to be

contingent on a condition precedent to the operation of the will, the court must undertake

construction of the testator’s intent.” Id. ¶ 25.

        ¶ 11.   As we further explained, to determine such intention, “ ‘[T]he court is to take the

instrument by its four corners, consider it in all its parts, and give effect to its language read in the

light of the relation of the parties concerned and the circumstances attending its execution.’ ” Id.

¶ 29 (quoting In re Estate of Mattison, 122 Vt. 486, 488, 177 A.2d 230, 231 (1962)). If the

                                                    4
provisions of a will are plain and unambiguous, there is no need to resort to construction and the

court is to apply the language according to its ordinary meaning. Id. If the will’s provisions are

ambiguous, however, a court may consider extrinsic evidence and rely on settled rules of

construction to determine its meaning. Id. It is appropriate, we explained, for a court to “consider

extrinsic evidence in order to clarify the circumstances surrounding the making of the agreement.”

Holbrook I, 2016 VT 13, ¶ 29.

       ¶ 12.   Finally, because the trial court in Holbrook I—as here—had decided the question

of the testator’s intent on summary judgment, we underscored the general rule that summary

judgment is appropriate only when the moving party “shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Id. ¶ 28 (quotation

omitted).

       ¶ 13.   With these principles in mind, we have little difficulty concluding that the entry of

summary judgment in this proceeding was premature. When the evidence is in conflict on a

genuine, material issue of fact—in this case whether testator intended the will to expire or to

remain in effect after she survived her surgery—the usual and proper course is not to ignore that

evidence as “ambiguous” but to deny the motion for summary judgment and permit the case to

proceed to trial, where the trier of fact may weigh all of the evidence, assess the credibility of the

witnesses, and ultimately resolve the factual dispute. See Provost v. Fletcher Allen Health Care,

Inc., 2005 VT 115, ¶ 15, 179 Vt. 545, 890 A.2d 97 (mem.) (recognizing that “[s]ummary judgment

is improper where the evidence is subject to conflicting interpretations, regardless of a judge’s

perceptions of [their] comparative plausibility”).

       ¶ 14.   It is correct that there is a general reluctance in estate law to find intestacy, hence

the general preference for a clear expression of contingency. See, e.g., Holbrook I, 2016 VT 13,

¶ 25 (noting that courts must examine testator’s intent to determine whether conditional language

was mere statement of “motive or inducement for making the will” or whether testator “clearly

                                                  5
intended the instrument to be contingent” (emphasis added)); Weatherhead v. Stoddard, 58 Vt.

623, 629, 5 A. 517, 519 (1886) (observing that “no estate will be held contingent, unless very

decided terms of contingency are used in the will” (emphasis added)). Nor was the court incorrect

in observing that superficially inconsistent holdings from other jurisdictions construing similar

will provisions may simply reflect the “fact-specific nature of the cases.” Indeed, as this Court has

observed, “[n]o two wills are exactly alike,” hence seemingly similar cases may often yield

decisions “lacking in harmony.” In re Estate of Mattison, 122 Vt. at 489, 177 A.2d at 231

(emphasis added).

       ¶ 15.   The lesson is that language cannot be viewed in isolation, nor its purpose extracted

from “presumptions.” The parties here offered conflicting evidence as to whether testator intended

the will to be a conditional or absolute will, and the case must therefore be remanded for a trial to

resolve that issue.

       Reversed and remanded.


                                                FOR THE COURT:



                                                Chief Justice




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