MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2014 ME 32
Docket:   Lin-13-115
Argued:   November 19, 2013
Decided:  February 25, 2014

Panel:          SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
                JABAR, JJ.


                         ESTATE OF ADA Y. GREENBLATT

JABAR, J.

         [¶1] Mark Levine, a beneficiary of the Estate of Ada Greenblatt, appeals

from a judgment entered in the Lincoln County Probate Court (Berry, J.)

completing settlement of the estate and ordering him to pay attorney fees and costs

of part of the proceedings pursuant to M.R. Prob. P. 54(d). Levine argues that the

court erred in determining that the personal representatives of the estate did not

breach their fiduciary duties when they distributed a religious print valued at $100

to one of the beneficiaries who was also a personal representative. We affirm the

judgment.

                                 I. BACKGROUND

         [¶2]    The evidence, viewed in the light most favorable to the court’s

judgment, supports the following findings of the Probate Court. See In re Estate of

Hunt, 2010 ME 23, ¶ 2, 990 A.2d 544.

         [¶3] Ada Greenblatt died testate and without issue on December 19, 2008.

Ada’s will provides for two $10,000 bequests to charitable organizations and
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specific bequests of $1,000 each to fourteen of her nieces and nephews. Ada’s will

further provides that the remainder of her estate was to be distributed to her

brothers, sisters, and sister-in-law in equal shares, or if they are deceased, to their

families, per stirpes.       Ada’s will provides no further instructions on how to

distribute her residuary estate.

        [¶4] Ada’s residuary estate consists primarily of real property and personal

property. Many of the personal property items do not have significant monetary

value but have sentimental value to members of the family. Ada designated two

personal representatives in her will: Owen Greenblatt, her brother, and Stephen

Singer,1 her nephew. The personal representatives opted to distribute the items of

personal property that had sentimental value in kind. To distribute these items, the

personal representatives provided the beneficiaries with a list of each item

including the item’s appraised value. From this list, the beneficiaries could then

select the items that they wanted in the order of their preference.

        [¶5]   Before sending the list to the beneficiaries, Ada’s only surviving

siblings, Owen and Riva Greenblatt, were given the opportunity to select items that

they wanted. The personal representatives did not inform the other residuary

beneficiaries that Owen and Riva would have the opportunity to select items before

    1
      Although the will appointed Ada’s brothers, Owen and Isear Greenblatt, as the two personal
representatives, Isear had predeceased Ada. Thus, the will appointed Stephen Singer as the successor
personal representative.
                                                                                                     3

the remaining beneficiaries. Owen and Riva selected a few items from the list,

some of which were then marked as “unavailable” on the list, and the personal

representatives sent the list of items to the remaining beneficiaries.

        [¶6] This dispute centers on the distribution of a single item of personal

property in Ada’s residuary estate, a mizrah (an ornamental religious print) valued

at $100. Owen selected the mizrah, but it was not marked as unavailable on the

list.   Mark Levine, a residuary beneficiary of the estate,2 received the list of

personal property items to be distributed in kind, and he also selected the mizrah.

Levine was later informed that the mizrah was unavailable because Owen had

already selected it.       Levine challenged the distribution of the mizrah, and he

responded with a three-page letter to the attorney for the Estate, alleging that Owen

had breached his fiduciary duties as a personal representative by taking the mizrah.

        [¶7] After Levine sent the letter objecting to the distribution of personal

property, he did not participate in any further actions related to the distribution of

the estate’s property. Specifically, in order to distribute the estate’s real property

interests, the personal representatives asked each residuary beneficiary to sign a

waiver of notice and limited power of attorney so that they could sell the property.3


   2
     Levine is Ada Greenblatt’s nephew. He is a residuary beneficiary because his mother, Ada’s sister,
predeceased Ada.
   3
     Ada’s residuary estate also included her interest in her parents’ home, where Ada lived before her
death. After Ada’s parents died, Ada and her siblings received equal interests in the home. Thus, in
4

Levine declined to sign the documents and refused to respond to further requests to

participate in a sale. Accordingly, the personal representatives filed a petition to

partition the proceeds from the sale of the home. See 18-A M.R.S. § 3-911 (2013).

After at least eight attempts at serving Levine, the summons and complaint for the

partition action was posted to the door of his home.                        Levine failed to file a

responsive pleading and did not appear at the hearing. On October 26, 2011, the

Superior Court entered a default judgment partitioning the proceeds from the sale

of the real property.

        [¶8] After the sale of the real property and court-ordered partition of the

proceeds, the personal representatives petitioned the Probate Court for an order

completing settlement of the estate. See 18-A M.R.S. § 3-1001 (2013). Levine

opposed the petition, claiming that Owen Greenblatt breached his fiduciary duty to

the estate by taking the mizrah. Further, Levine argued that because the personal

representatives breached their fiduciary duties, the court should not allow the

personal representatives to be reimbursed for legal fees with estate funds. See

18-A M.R.S. § 3-720 (2013).

        [¶9] The court entered a judgment completing settlement of the estate after

making “minor adjustments” to the personal representatives’ accounting of the



addition to being residuary beneficiaries to Ada’s estate, Ada’s siblings and their heirs were also partial
owners of the home in Bath.
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estate’s expenses. With respect to Levine’s allegations of a breach of fiduciary

duty, the court found that although the distribution of personal property was “not

perfect,” it was “not improper.”

      [¶10] Further, the court granted the Estate’s request for costs and attorney

fees with respect to the partition action, finding that Levine’s failure to cooperate

in the sale of the estate’s real property resulted in the “needless . . . filing [of] the

expensive partition action that only accomplished what would have been achieved

if [Levine] . . . had simply signed and returned the waivers and powers [o]f

attorney.” See Estate of McCormick, 2001 ME 24, ¶ 25 n.10, 765 A.2d 552

(discussing sanctions for the filing of a “frivolous or malicious claim or

objection”); M.R. Prob. P. 54(d).            Levine timely appealed.         See M.R.

App. P. 2(b)(3).

                                   II. DISCUSSION

      [¶11] Levine argues that although the court found that the distribution

scheme was “not improper,” it erred in failing to conclude that Owen breached his

fiduciary duty as a personal representative in distributing the mizrah to himself.

      [¶12] “When an order of the Probate Court is appealed, we defer to the

Probate Court on factual findings unless they are clearly erroneous, but we review

de novo the application of the law to the facts.” Estate of Horne, 2003 ME 73,

¶ 17, 822 A.2d 1177. Personal representatives of an estate are fiduciaries, and
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pursuant to 18-A M.R.S. § 3-703(a) (2013), they must observe the same standards

of care that apply to trustees of an express trust as set out in specified provisions of

the Maine Uniform Trust Code. See 18-B M.R.S. §§ 802-803, 805-807 (2013).

Among the standards of care that apply to personal representatives are the duties of

loyalty and impartiality.     See 18-A M.R.S. § 3-703(a) (citing 18-B M.R.S.

§§ 802-803).

      [¶13] Although Levine argues that Owen breached the duty of loyalty, he

does not allege that Owen took any action that was not “solely in the interests of

the beneficiaries.” See 18-B M.R.S. § 802(1). Rather, Levine argues that the

personal representatives treated some beneficiaries more favorably than they

treated others. Thus, we proceed to analyze whether the personal representatives’

actions violated the duty of impartiality pursuant to 18-B M.R.S. § 803.

      [¶14] The duty of impartiality generally applies if there are two or more

beneficiaries with interests in an estate, and it requires a personal representative to

“act impartially in . . . managing and distributing the [estate] property, giving due

regard to the beneficiaries’ respective interests.” Id. In other words, the personal

representative “represents all the beneficiaries under the will and, in so doing, must

adopt a neutral position respecting their conflicting claims.” Desmond v. Persina,

381 A.2d 633, 638 (Me. 1978).          Further, the duty of impartiality includes a

restriction that “the executor may not take sides in the adjudication of the
                                                                                                7

individual claims of beneficiaries one against another.” In re Estate of Morine,

363 A.2d 700, 704 (Me. 1976).

        [¶15] However, with respect to the scope of a duty of impartiality:

        It would be overly simplistic, and therefore misleading, to equate
        impartiality with some concept of “equality” of treatment or
        concern—that is, to assume that the interests of all beneficiaries have
        the same priority and are entitled to the same weight in the trustee’s
        balancing of those interests.

Restatement (Third) of Trusts § 79 cmt. b (2007). Similarly, the comment to

section 803 of the Uniform Trust Code, on which the Legislature based

18-B M.R.S. § 803,4 states: “The duty to act impartially does not mean that the

trustee must treat the beneficiaries equally. Rather, the trustee must treat the

beneficiaries equitably in light of the purposes and terms of the trust.” Unif. Trust

Code § 803 cmt., included with 18-B M.R.S.A. § 803 (2012). In sum, “it is the

trustee’s duty, reasonably and without personal bias, to seek to ascertain and to

give effect to the rights and priorities of the various beneficiaries or purposes as

expressed or implied by the terms of the trust.” Restatement (Third) of Trusts § 79

cmt. b. If the will appoints a beneficiary to serve as a personal representative, we

note that the personal representative does not automatically breach a fiduciary duty

by distributing assets to himself or herself as a beneficiary.                      See generally

Restatement (Third) of Trusts §§ 78 cmt. c(2), 79 cmt. b(1) (2007).

  4
      See L.D. 921, Summary (121st Legis. 2004) (adopting the revised Uniform Trust Code).
8

      [¶16] It is undisputed that the personal representatives in this case had the

discretion to determine how to distribute the residuary assets. See 18-A M.R.S.

§ 3-906(a)(4) (2013) (“Residuary assets may be distributed, at the personal

representative’s discretion, in pro rata or non pro rata shares.”). When the will

confers discretion on the personal representatives, we defer to the decisions of the

personal representatives, absent an abuse of their discretion.           See Alford v.

Richardson, 120 Me. 316, 321-24, 114 A. 193 (1921) (“[When a] will invests the

trustee with the right to use his discretion . . . [s]o long as he acts within his power,

honestly and in good faith, his determination is conclusive.”); see also Wight v.

Mason, 134 Me. 52, 59-61, 180 A. 917 (1935); Restatement (Third) of Trusts § 50

cmt. b (2003). The will did not provide specific instructions on how to distribute

the residuary assets, and the Probate Code provides only minimal guidance, stating

that personal representatives shall distribute the residuary assets of the estate “in

accordance with the best interests of the residuary devisees.”            18-A M.R.S.

§ 3-906(a)(4).

      [¶17] Here, in distributing the residuary assets, the personal representatives

created a thirteen-page list of personal property items that they determined had

sentimental value to the residuary beneficiaries.        The personal representatives

complied with section 3-906(a)(4), which permits them to distribute property in
                                                                                    9

kind to the beneficiaries, in a non pro rata share, if the items are “valued as of the

date on which they are distributed.”

      [¶18] Then, the personal representatives gave Ada’s only surviving siblings,

Owen and Riva, the opportunity to select items before distributing the list of items

to the remaining residuary beneficiaries. The items to be distributed in kind were

primarily items that originally belonged to Owen and Ada’s parents—Levine’s

grandparents. Owen testified that the personal representatives determined that

each of the residuary beneficiaries “should have a chance to retain some memento

from Ada, and by extension [Owen and Ada’s] parents.”

      [¶19]    It was reasonable and consistent with the best interests of the

beneficiaries for the personal representatives to determine that the surviving family

members in the nearest degree of kinship to Ada’s parents, who had grown up in

the home with those items, should have the opportunity to select among the items

before giving the same opportunity to the remaining residuary beneficiaries. See

id.; Restatement (Third) of Trusts § 79 cmt. b. Further, the evidence in the record

indicates that when the personal representatives created the plan, and when Owen

selected the mizrah, he was unaware that any other beneficiary wanted the item.

Thus, the evidence supports the court’s implicit finding that Owen was not

motivated by a personal bias. See Restatement (Third) of Trusts § 79 cmt. b.
10

         [¶20] The mizrah was valued at $100, and Owen offset his remaining

residuary interest in the estate by that amount. Thus, the in-kind distributions did

not alter the proportionate shares of the estate that each residuary beneficiary

ultimately received. Because this distribution scheme and Owen’s selection of the

mizrah was not an abuse of the personal representatives’ discretion and, thus, did

not violate the fiduciary duty of impartiality, we decline to disturb the Probate

Court’s determination that the personal representatives’ actions were “not

improper.”5

         The entry is:

                           Judgment affirmed and motion for sanctions
                           denied.

______________________________________

On the briefs and at oral argument:

         Nicholas H. Walsh, Esq., Nicholas H. Wash P.A., Portland, for
         appellant Mark Levine

         Noreen A. Patient, Esq., Eaton Peabody, Brunswick, for
         appellees Owen Greenblatt and Stephen Singer



Lincoln County Probate Court docket number 2012-0191
FOR CLERK REFERENCE ONLY



     5
       The estate has also filed a motion pursuant to M.R. App. P. 13(f) for treble costs and reasonable
expenses, arguing that Levine’s contentions on appeal are frivolous and made with no reasonable
likelihood of success. Because this appeal does not lack merit, we decline to award sanctions. Cf. Estate
of Dineen, 2006 ME 108, ¶ 8, 904 A.2d 417.
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