MAINE	SUPREME	JUDICIAL	COURT	 	            	      	      	      	     Reporter	of	Decisions	
Decision:	    2019	ME	55	
Docket:	      Wal-18-34	
Submitted	
  On	Briefs:	 October	11,	2018	
Decided:	     April	11,	2019	
	
	
Panel:	       SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                ESTATE	OF	JOHN	W.	GILBERT	
	
	
SAUFLEY,	C.J.	

        [¶1]	 	 In	 this	 high-conflict,	 much-litigated	 estate	 dispute,	 the	 parties	

continue	 to	 litigate	 over	 the	 disposition	 of	 a	 piece	 of	 real	 property	 and	 a	

motorcycle	 together	 valued	 at	 $68,500.	 	 In	 this	 third	 appeal,	 Nathan	 Gilbert	

challenges	 two	 judgments	 of	 the	 Waldo	 County	 Probate	 Court	 (Longley,	J.)	 in	

which	 the	 court	 determined	 that	 the	 total	 expenditures	 made	 by,	 and	

deductions	 allowable	 to,	 Judith	 Gilbert,	 as	 the	 wife	 of	 John	 W.	 Gilbert	 and	

personal	 representative	 of	 John’s	 estate,	 exceed	 the	 value	 of	 the	 estate,	 and	

distributed	 the	 estate	 to	 Judith	 in	 kind.	 	 Nathan	 argues	 that	 the	 court	 made	

numerous	errors	in	its	findings	of	fact	and	its	application	of	the	law.1		We	affirm	

the	judgments.		


    1		Judith	timely	cross-appeals,	see	M.R.	App.	P.	2C(a)(2),	and	correctly	asserts	that	the	court	erred	

in	finding	that	she	claimed	the	decedent’s	motorcycle	as	her	statutorily	exempt	property	distributed	
under	the	Probate	Code.		See	18-A	M.R.S.	§§	2-402,	2-404	(2018).		Judith	consistently	asserted	that	
she	would	take	a	share	of	the	house	as	her	statutory	exempt	property,	and	therefore,	the	court	erred	
2	

                                             I.		BACKGROUND	

        [¶2]		John	W.	Gilbert	died	on	February	2,	2012,	leaving,	as	the	primary	

assets	in	his	estate,	real	property	and	a	motorcycle,	along	with	various	other	

personal	 items.	 	 See	 Estate	 of	 Gilbert,	 2016	 ME	 92,	 ¶	 2,	 142	 A.3d	 583.	 	 Thus	

ensued	this	acrimonious	litigation	between	Nathan	(John’s	son),	and	Judith,	the	

personal	representative	of	John’s	estate	and	John’s	long-term	partner	whom	he	

married	 shortly	 before	 his	 death.	 	 Id.	 	 Seven	 years	 have	 passed	 since	 John’s	

death,	and	the	parties	are	before	us	today	for	the	third	time.2	

        [¶3]		In	the	most	recent	appeal	of	this	case,	Estate	of	Gilbert	(Gilbert	II),	

we	 remanded	 the	 matter	 for	 the	 Probate	 Court	 “to	 conduct	 an	 evidentiary	

hearing	 on	 the	 composition	 and	 value	 of	 the	 estate”	 and	 issue	 a	 “decision	

detailing	the	distribution	of	the	estate	consistent	with	the	evidence	produced	

at	that	hearing.”		2017	ME	175,	¶	11,	169	A.3d	382.		We	emphasized	the	need	

for	“finality	in	this	unnecessarily	complicated	litigation.”		Id.			




in	 this	finding	 of	 fact.	 	 We	 need	 not	 disrupt	 the	 court’s	 order	 on	 this	issue,	 however,	 because	 the	
categorization	of	the	statutory	exempt	property	would	not	change	the	value	of	the	assets	in	the	estate,	
and,	thus,	the	distribution	of	the	estate	would	not	change.		The	error	was	therefore	harmless.		See	
M.R.	Prob.	P.	61;	M.R.	Civ.	P.	61;	Estate	of	Snow,	2014	ME	105,	¶	22,	99	A.3d	278	(requiring	that	the	
harmed	 party	 must	 “demonstrate	 both	 error	 and	 prejudice	 resulting	 from	 the	 claimed	 error”	
(alterations	omitted)	(quotation	marks	omitted)).	
    	
    2		See	Estate	of	Gilbert,	2017	ME	175,	169	A.3d	382;	Estate	of	Gilbert,	2016	ME	92,	142	A.3d	583.			

    	
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        [¶4]	 	 On	 remand,	 the	 court	 promptly	 held	 an	 evidentiary	 hearing3	 and	

reached	 a	 decision	 “[b]ased	 on	 the	 most	 credible	 presentations	 on	 multiple	

days	at	both	the	evidentiary	hearing	on	the	composition	and	value	of	the	estate	

and	the	consolidated	evidentiary	hearing	on	all	remaining	motions	.	.	.	.”4		The	

court	concluded	that	Judith,	the	personal	representative	of	the	estate,	“without	

giving	notice,	now	may	opt	immediately	to	distribute	the	estate	in	[]	kind,	to	the	

person	entitled,”	Judith.			

        [¶5]		Nathan	filed	a	motion	for	findings	of	fact	and	conclusions	of	law,	for	

additional	findings	of	fact,	and	to	amend	the	order.		In	his	motion,	Nathan	put	

forth	fifty-one	proposed	findings	of	fact	and	seventeen	proposed	corrections	of	




   3		Before	the	evidentiary	hearing,	Judith	filed	a	motion	for	a	pretrial	conference,	which	the	court	

denied.		Although	Nathan	argues	on	appeal	that	the	court	denied	him	due	process	by	not	holding	a	
pretrial	 conference,	 the	 court	 had	 the	 discretion	 to	 decline	 to	 hold	 a	 pretrial	 conference,	 and	 the	
history	of	the	acrimonious	and	unfocused	litigation	certainly	supports	the	court’s	decision.		See	M.R.	
Prob.	P.	16(a).			
   	
   Also,	to	the	extent	that	Nathan	argues	that	the	lack	of	a	pretrial	conference	prevented	him	from	
having	 his	 expert	 testify,	 he	 is	simply	 incorrect.	 	 The	 court	 heard	 lengthy	voir	dire	 from	 Nathan’s	
proffered	expert	witness	and	did	not	err	by	concluding	that	the	witness	was	not	qualified	to	give	an	
expert	opinion.		See	Searles	v.	Fleetwood	Homes	of	 Pa.,	Inc.,	2005	ME	94,	¶	24,	878	A.2d	509	(“We	
review	a	court’s	foundational	finding	that	expert	testimony	is	sufficiently	reliable	for	clear	error.”);	
see	also	M.R.	Evid.	702,	703.	
   	
   4	 	 Nathan	 also	 argues	 that	 the	 court	 erred	 in	 failing	 to	 rule	 on	 Judith’s	 unopposed	 motion	 for	

recusal	of	the	presiding	judge	before	conducting	the	trial.		Nathan	is	correct	that	the	presiding	judge	
began	 the	 hearings	 without	 addressing	 the	 motion.	 	 Throughout	 the	 numerous	 days	 of	 the	
evidentiary	 hearing,	 the	 court	 addressed,	 and	 readdressed,	 the	 motion	 to	 recuse.	 	 The	 record	 is	
unmistakable	that	the	presiding	judge	ultimately	denied	the	motion.		The	court	did	not	err	in	denying	
the	motion;	however,	a	court	should	always	address	a	motion	to	recuse	before	moving	forward	with	
other	matters	in	the	case.		Any	failure	to	do	so	here	was	harmless.	
4	

law,	all	regarding	the	value	and	distribution	of	the	estate.		The	court	issued	an	

amended	order	finding	that	all	that	remained	in	the	estate	was	the	decedent’s	

real	property	(valued	at	$63,500)	and	a	Harley	Davidson	motorcycle	(valued	at	

$5,000).	 	 Next,	 the	 court	 found	 that	 Judith,	 as	 personal	 representative,	 paid	

necessary	 expenses	 of	 $40,705.58,	 consisting	 of	 property	 taxes	 and	 home	

insurance	($7,902.95),	funeral	expenses	($3,215),	and	administrative	expenses	

($29,587.63).	 	 See	 18-A	M.R.S.	 §§	 3-715,	 3-720	 (2018).	 	 The	 court	 also	 found	

that	 Judith	 was	 entitled	 to	 allowances	 and	 an	 exemption	 totaling	 $29,000,	

consisting	of	a	homestead	allowance	($10,000),	see	18-A	M.R.S.	§	2-401	(2018),	

a	personal	allowance	($12,000),	see	18-A	M.R.S.	§	2-403	(2018),	and	a	property	

exemption	($7,000),	see	18-A	M.R.S.	§	2-402	(2018).		See	18-A	M.R.S.	§	2-404	

(2018).		Accordingly,	Judith’s	expenses,	 allowances,	and	 exemption—totaling	

$69,705.58	 ($40,705.58	 +	 $29,000)—came	 to	 $1,205.58	 more	 than	 the	 total	

value	of	the	assets	in	the	estate	($68,500).		The	court	therefore	entered	an	order	

concluding	that	Judith	was	entitled	to	receive	the	estate	in	kind.		Nathan	timely	

appealed.		See	18-A	M.R.S.	§	1-308	(2018);	M.R.	App.	P.	2B	(c)(1).			

                                   II.		DISCUSSION		

      [¶6]	 	 Nathan	 makes	 several	 contrived	 arguments	 that	 the	 court	

misinterpreted	 sections	 2-101,	 2-102(4),	 3-707,	 3-712,	 3-713,	 3-805,	 and	
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3-9065	 (2018)	 of	 the	 Probate	 Code	 and	 that	 the	 court	 ignored	 the	 personal	

representative’s	 breach	 of	 her	 fiduciary	 duties.6	 	 Reviewing	 the	 court’s	

interpretation	of	the	Probate	Code	as	a	legal	issue	de	novo,	see	Estate	of	Cabatit	

v.	Canders,	2014	ME	133,	¶	11,	105	A.3d	439,	we	conclude	that	the	court	did	not	

make	any	errors	of	law.		

        [¶7]	 	 Nathan	 next	 asserts	 that	 the	 court	 made	 numerous	 errors	 in	 its	

fact-finding.		Because	there	is	evidentiary	support	for	each	finding,	the	court	

did	 not	 commit	 clear	 error.	 	 See	 Estate	 of	 Plummer,	 666	 A.2d	 116,	 118	 (Me.	

1995);	Wells	v.	Powers,	2005	ME	62,	¶	2,	873	A.2d	361.		He	argues	that	the	court	

erred	in	determining	that	the	fair	market	value	of	the	real	property	is	$63,500,	

as	 opposed	 to	 $89,500;	 the	 court	 erred	 in	 finding	 that	 Judith	 paid	 necessary	

expenses	totaling	$40,705.58;	and,	the	court	erred	in	awarding	Judith	a	$12,000	


   5		Nathan	challenges	the	court’s	application	of	18-A	M.R.S.	§	3-906	(2018)	to	the	valuation	and	

distribution	 of	 the	 estate	 because,	 as	 Nathan	 argues,	 section	 3-906	 is	 not	 applicable	 to	 intestate	
estates.	 	 We	 disagree.	 	 Article	 3,	 which	 establishes	 a	 system	 for	 administration	 of	 estates,	 is	
“[d]esigned	to	be	applicable	to	both	intestate	and	testate	estates.	.	.	.”		Uniform	Probate	Code	cmt.	to	
art.	3,	included	with	18-A	M.R.S.A.	art.	3,	pt.	1	(2012).			
   	
   6		Nathan	also	argues	that	he	was	deprived	of	his	due	process	right	to	a	fair	and	impartial	trial	by	

the	 court	 engaging	 in	 “an	 apparent	 hour	 of	 ex-parte	 conversation.”	 	 On	 November	 13,	 2017,	 the	
hearing	on	pending	motions	began	at	9:03	a.m.		Nathan	and	his	counsel	did	not	appear	until	10:00	
a.m.	at	which	time	the	court	stated	on	the	record:	“As	we’ve	been	waiting	for	[Nathan	and	his	counsel],	
we’ve	been	doing	unrelated	chitchat,	friendly	chitchat,	and	now	we’re	ready	to	begin	proceedings.”		
To	adequately	brief	an	ex	parte	communication	violation,	Nathan	needed	to	assert,	at	the	very	least,	
that	 there	 were	 “judicial	 remarks	 [that]	 demonstrate	 conclusions	 or	 opinions	 that	 derive	 from	
extrajudicial	sources	untested	through	adversarial	advocacy.”		State	v.	Bard,	2018	ME	38,	¶	45,	181	
A.3d	187.		Nathan	does	not	argue	that	the	judge	here	made	any	remarks	of	this	sort.		To	the	extent	
that	he	does	raise	a	reviewable	issue	on	appeal,	the	record	does	not	reveal	that	the	court	engaged	in	
any	impropriety	as	it	waited	for	his	delayed	arrival.		See	M.R.	Civ.	P.	61.		
6	

“personal	allowance”	because	the	Probate	Code	does	not	provide	for	such	an	

allowance.			

          [¶8]		We	disagree.		Specifically,	the	court	could	have	relied	on	Nathan’s	

exhibits—the	 2017	 assessment	 records—that	 showed	 the	 property’s	 total	

value	as	 $63,500.		The	record	 evidence	 also	showed	that	from	2013	through	

2015	 Judith	 paid	 $7,424.28	 in	 taxes	 and	 insurance,	 and	 the	 court	 could	 have	

determined	that	Judith	paid	an	additional	$478.67	from	2015	to	the	time	of	the	

trial	in	2017.		Judith’s	pretrial	motion	and	sworn	affidavit	evidencing	funeral	

costs	 and	 expenses	 of	 $3,215	 provided	 adequate	 support	 for	 these	 costs	 and	

expenses.		Judith	testified	to	the	expenses	she	paid	as	recorded,	line-by-line,	in	

her	blue	ledger	notebook,	and	there	is	therefore	record	evidence	to	support	the	

court’s	 finding	 of	 $29,587.63	 in	 administrative	 expenses.7	 	 Although	 the	

“personal	 allowance”	 that	 the	 court	 awarded	 is	 statutorily	 titled	 “family	

allowance,”	 see	 18-A	 M.R.S.	 §	 2-403,	 that	 statute	 provides,	 for	 the	 surviving	

spouse	of	the	decedent,	“a	reasonable	allowance	in	money	out	of	the	estate	for	

their	maintenance”	not	to	continue	for	longer	than	one	year,”	see	id.,	nor	“in	a	



     7	
     	 Nathan	 contends	 that	 because	 Judith	 Gilbert’s	 notebook	 of	 expenses	 was	 not	 admitted	 in	
evidence,	the	court	impermissibly	relied	on	the	notebook	to	form	its	conclusion	on	the	amount	of	
reimbursable	 expenses.	 	 The	 record	 is	 clear:	the	 notebook	 was	 admitted	in	 evidence.	 	 Even	 if	 the	
notebook	 was	 not	admitted,	 however,	 the	 court	 heard	 extensive	 testimony	 from	 Judith	 about	 her	
expenses	as	the	personal	representative.		Therefore,	if	the	court	relied	on	the	notebook	even	if	it	was	
not	admitted,	any	error	was	harmless.	
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lump	 sum”	 that	 exceeds	 $12,000,	 see	 id.	 §	 2-404.	 	 The	 court	 acted	 within	 its	

discretion	 to	 award	 Judith	 this	 one-time	 allowance	 to	 her	 as	 the	 surviving	

spouse.	

                                          III.		CONCLUSION	

        [¶9]		The	Probate	Court	acted	well	within	its	authority	and	with	record	

support	 when	 it	 found	 Judith	 to	 be	 credible,	 particularly	 in	 light	 of	 Judith’s	

admirable	recordkeeping	of	the	estate’s	costs	and	expenses.		As	the	court	found,	

“she	noted	each	cost	and	expense	as	it	occurred,	when	fresh	in	her	memory.		As	

necessary	 to	 reflect	 her	 recollection,	 she	 also	 had	 matching	 copies	 of	 the	

original	 receipts	 that	 she	 dutifully	 had	 filed	 with	 her	 also	 well-organized	

reports.”8		The	court	did	not	err	in	its	application	of	the	law	or	in	its	important	

factual	 findings	 when	 it	 determined	 that	 Judith	 was	 entitled	 to	 the	 in	 kind	

distribution	of	the	estate.		This	sadly	bitter	litigation	between	family	members	

has	reached	its	end.	

        The	entry	is:	

                        Judgments	affirmed.		
	
	       	       	       	        	       	
	                                	



    8		We	note	that	due	to	poorly	briefed	arguments,	particularly	related	to	mathematical	calculations,	

this	case	was	needlessly	difficult	for	us	to	review.			
8	

Susan	C.	Thiem,	Esq.,	Lincolnville,	for	appellant	Nathan	Gilbert	
	
David	Glasser,	Esq.,	Camden,	for	appellee	Judith	Gilbert	
	
	
Waldo	County	Probate	Court	docket	number	2012-3	
FOR	CLERK	REFERENCE	ONLY	
