In re Estate of Elizabeth LaFrance, No. 31-2-10 Oecv (Eaton, J., Mar. 4, 2011)

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                                                  STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Orange County                                                                              Docket No. 31-2-10 Oecv


In re Estate of Elizabeth LaFrance


                              Decision on Administrator’s Motion to Dismiss
                            and Administrator’s Motion for Summary Judgment

        Appellant Stephen LaFrance seeks a determination in this probate appeal that he
should receive the family homestead free and clear of its existing mortgage under the
terms of his mother’s last will and testament. He also contends that the probate court
erred by apportioning certain estate expenses among all the beneficiaries of the estate,
and by failing to account for certain rental income received during the pendency of the
estate. For the following reasons, the court grants the estate administrator’s dispositive
motions on each of these questions and affirms the final judgment of the probate court.

        The following facts are established by the record.1 Elizabeth LaFrance died in
2006 and was survived by her three children: Pierre, Stephen, and Jean. At the time of
her death, Elizabeth owned the family farm, which consisted of a substantial amount of
land in Randolph Center, Vermont.

        Elizabeth and her late husband, Morris, started a family-run campground on the
farm during the mid-1960s. They operated the campground for many years until Morris
died in 1991, at which point Pierre took over as caretaker and manager of the
campground.

        In her will, Elizabeth left the campground to Pierre. She left the family
homestead and about six acres to Stephen, and all the remaining land to Jean. Of all the
property, only the homestead was burdened by a mortgage. The primary issue
throughout the ensuing probate proceedings was whether Elizabeth meant for her estate
to pay off the mortgage before the homestead was given to Stephen.




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           The administrator’s motion for summary judgment was supported by affidavits and “a separate,
short, and concise statement of the material facts as to which the moving party contends that there is no
genuine issue to be tried.” V.R.C.P. 56(c)(2). As such, appellant was required to respond by filing a
separate statement “of the material facts as to which it is contended that there exists a genuine issue to be
tried,” along with affidavits or other evidentiary materials demonstrating the existence of a genuine dispute.
V.R.C.P. 56(e). Appellant did neither, but rather responded only by asserting summarily that “there are
material facts in dispute.” Because this is an insufficient response to a properly-supported motion for
summary judgment, the court takes the facts asserted by the administrator as established for the purposes of
summary judgment. Webb v. Leclair, 2007 VT 65, ¶¶ 4–6, 182 Vt. 559.
        In pertinent part, Elizabeth directed in her will “that all my just debts (excluding
mortgages) and funeral expenses be paid as soon as practicable after my death.” She then
bequeathed certain personal property to the children along with the aforementioned
bequests of real property. She did not mention the real estate mortgage one way or
another in the specific bequests of real property. (A more complete copy of the relevant
will provisions is attached as Appendix A to this decision.)

        After the will was admitted to probate, the administrator sought a license to
convey the real property to the three siblings. As part of the license, the administrator
requested that the family homestead be conveyed to Stephen subject to the existing
mortgage. Stephen opposed this request. After a hearing, the probate court found that
Elizabeth had intended for most of her debts to be paid by the administrator as expenses
of the estate, but that she specifically excluded the homestead mortgage from the list of
debts to be paid. Citing the general rule that the intent of the decedent controls on
whether certain debts should be paid by the estate or by the beneficiaries, 14 V.S.A.
§ 1214, the probate court concluded that the homestead should be transferred to Stephen
subject to the existing mortgage.

         Stephen attempted to appeal this ruling. The probate court, however, interpreted
the notice of appeal as a motion for permission to appeal, and concluded that Stephen had
not shown sufficient grounds why an interlocutory appeal should be permitted under the
criteria established by Vermont Rule of Appellate Procedure 5. On appeal from the
denial of permission to appeal, the superior court agreed that the license to convey real
estate was not a final order, and that an interlocutory appeal was not warranted by the
circumstances of the case. The superior court accordingly dismissed the appeal and
remanded the case to the probate court for further proceedings.

        On remand, Stephen relented and accepted the deed to the homestead subject to
the mortgage. A final accounting was then held, during which it was found that the estate
lacked sufficient funds to pay all of its expenses, which consisted mostly of attorneys’
fees. The probate court apportioned the fees between all three beneficiaries, with the
shares determined on a pro rata basis by the percentage of total assets that each received
under the will.

        Stephen now appeals to this court from the final judgment. He raises six issues in
his statement of questions, filed June 2010, as follows:

                      1. Does VRCP 5 require permission from the
               Probate Court to appeal an Order of the Probate Court?

                      2. Should the Last Will & Testament of Elizabeth
               LaFrance be interpreted to provide that the bequest to
               Stephen C. LaFrance of the homeplace be transferred free
               and clear of the mortgage to the Randolph National Bank?




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                      3. Should the mortgage to Randolph National Bank
               be paid out of assets of the Estate of Elizabeth LaFrance?

                       4. Should the mortgage to Randolph National Bank
               be paid from the share of the estate decreed to Pierre
               LaFrance since the proceeds from the mortgage were used
               for the benefit of the property Pierre LaFrance is
               inheriting?

                      5. Should Stephen LaFrance and Jean L. Seavey be
               required to pay attorney’s fees incurred by the Executor in
               defending questions of his handling of the estate?

                       6. Should the Executor, Pierre LaFrance, reimburse
               the Estate for rental income received during the pendency
               of the Estate?

        The present matters before the court are two separate dispositive motions filed by
the administrator. In the first motion, the administrator argues that Question #1 should be
dismissed under the doctrine of res judicata because it was resolved by the prior superior
court appeal. In the second motion, the administrator argues that the estate is entitled to
judgment as a matter of law on Questions #2 through #6 because there are no genuine
issues of material fact for trial, and because (1) the plain language of Elizabeth’s will
showed that her intent was to bequeath the homestead to Stephen subject to the existing
mortgage; (2) the probate statutes allow the court to allocate estate expenses on a pro rata
basis; and (3) the question of rental income was properly handled during the final
accounting. The court addresses each of these issues seriatim.

        Question #1 asks whether Vermont Rule of Appellate Procedure 5 applies to
probate appeals. Although the administrator argues that the question should be dismissed
as a matter of res judicata, the more pressing issue is that the question does not present a
live controversy under the circumstances of this appeal. Stephen is not appealing from an
interlocutory order, but rather from the final judgment of the probate court, and as such,
the provisions of Appellate Rule 5 are not implicated by this appeal. Moreover, to the
extent that Stephen is seeking to renew his objections to the terms on which the license to
convey real estate was granted, the issue became moot when Stephen accepted the deed
subject to the existing mortgage. As such, any decision from this court on this issue
would be purely advisory and thus improper. See In re Unnamed Defendant, 2011 VT 25
(explaining that the mootness doctrine “limits the authority of the courts to the
determination of actual, live controversies between adverse litigants”) (citation omitted).
For these reasons, the administrator’s motion to dismiss Question #1 is granted.

        Question #2 asks whether Elizabeth’s last will and testament should be interpreted
to provide that the family homestead be transferred to Stephen free and clear of the
existing mortgage. Stephen appears to argue primarily that his mother would not have
intended for him to take the homestead subject to the mortgage, especially because the



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proceeds from the mortgage benefitted the development of the family campground. In
interpreting wills, however, Vermont courts must “look to the words of the will, rather
than be guided by plausible statements of probable purpose, made by potential
beneficiaries in a proceeding where the testator is unavoidably unable to explain [her]
objectives.” In re McCoy’s Estate, 126 Vt. 28, 30 (1966). In other words, the role of the
court is to determine whether the language used in the will is plain and unambiguous, and
if so, to give effect to that language as the expression of the testator’s intent. In re Davis’
Estate, 126 Vt. 19, 22 (1966).

        In this case, Elizabeth’s will contained a specific instruction as to the mortgage:
the administrator was directed to pay all her “just debts (excluding mortgages) . . . as
soon as practicable after my death.” In other words, Elizabeth specifically directed her
administrator not to pay off the mortgage along with the other estate debts. It is difficult
to see how any other interpretation could possibly be given to this language. Nothing
contrary is indicated in the specific bequests of real property.

         During the probate proceedings, Stephen argued that conflicting instructions were
provided in the first sentence of the third paragraph of the will, in which Elizabeth gave
“all [her] tangible personal property, excluding, however, securities, cash, money on
deposit or evidence of title or debt to my children, OLIVIA JEAN SEAVEY and
STEPHEN C. LaFRANCE.” Stephen seized on the language of this provision referring
to “evidence of title or debt” as evidence that Elizabeth wanted the mortgage to be paid
off. It is plain from the overall structure of the will, however, that this sentence referred
only to the “tangible personal property,” in which context “evidence of title or debt”
would refer to stocks, bonds, promissory notes, and other documents of that nature. It is
implausible to interpret this sentence as modifying the bequests of real property or
otherwise limiting the applicability of the first paragraph, in which Elizabeth specifically
instructed her administrator not to pay off the mortgage.

        A corollary principle here is provided by statute: “[i]f any assets of the estate are
encumbered by mortgage, pledge, lien, or other security interest, the executor or
administrator may except as otherwise provided by will pay the encumbrance or any part
thereof . . . if it appears to be for the best interest of the estate.” 14 V.S.A. § 1214
(emphasis added). In other words, even in cases where the testator has not expressed any
desire as to whether the mortgage should be paid off or not, the administrator has
discretion to determine whether or not such a payment would be in the best interests of
the estate. In this case, there was no occasion for the administrator to exercise his
discretion because Elizabeth’s will specifically instructed the administrator to pay her
“just debts (excluding mortgages).” Given this plain and unambiguous language, the
court must conclude that the administrator properly transferred title to Steven subject to
the existing mortgage.

        Question #3 asks whether the mortgage should be paid out of the assets of the
estate. As the court understands it, this question is not duplicative because it is not a
matter of interpretation but rather an appeal to equity: whether it is fair for Stephen to
receive the family homestead subject to a mortgage whose proceeds benefitted the family



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campground rather than the house. One of the limitations on the court’s power when
interpreting or enforcing wills, however, is that it cannot rely on its own sense of what
should have happened or its own assessment of the equities. Rather, the role of the court
is to honor the wishes of the testator by giving effect to her intent as it is expressed by the
plain language of her will. Eckstein v. Estate of Dunn, 174 Vt. 575, 578 (2002) (citation
omitted). Here, the will plainly expresses the testator’s intent that her administrator pay
all her “just debts (excluding mortgages).” It was for Elizabeth to decide whether this
was fair or not. Because she clearly expressed her determination that it was, the court
must effectuate that intent.

        Question #4 asks whether the mortgage should be paid out of Pierre’s share of the
estate, because the proceeds from the mortgage benefitted the campground. Again, for
the reasons expressed above, the court is not at liberty to rewrite the terms of the will or
to substitute its own judgment for that of the testator.

        Question #5 asks whether Stephen and Jean should be required to share the
attorneys’ fees incurred by the administrator during the pendency of the estate. It appears
from the record that the challenge here is not to the reasonableness of the fees that were
awarded by the court, but rather to the legal question of whether the expenses should
have been shared by all the beneficiaries under the circumstances of this case. In
particular, appellant appears to suggest that the fees were incurred by the administrator
“in defending questions of his handling of the estate”.

        It is true that apportionment of fees would not be appropriate if the administrator
had incurred personal legal fees in defending his actions as administrator against
allegations of malfeasance or other wrongdoing. The facts established for purposes of
summary judgment do not support the conclusion that the administrator charged personal
attorney fees to the estate, however. Rather, the fees were incurred as part of the
resolution of a legitimate question arising out of the estate: how the will should be
interpreted and effectuated. It is fair for all of the beneficiaries to share the expense of
resolving legal issues pertaining to the administration of the estate. Here, the attorneys’
fees were properly characterized as an expense of the estate.

        Estates must pay any attorneys fees and expenses before any distribution is made
to the beneficiaries. 14 V.S.A. § 1205(a)(1). In cases where, as here, partial distributions
of estate assets are made prior to the final accounting, it sometimes happens that the
remaining estate assets are “insufficient to satisfy the ultimate expenses.” In those
situations, “those persons having received [partial] distributions shall be liable to repay
the executor or administrator on a pro rata basis.” 14 V.S.A. § 1743. Here, each of the
beneficiaries received a partial distribution in the form of real estate prior to the final
accounting. The probate court then found that the estate assets were insufficient to pay
the remaining expenses, and apportioned those expenses accordingly. This was proper
under § 1743. Because there is no genuine issue on appeal as to the sufficiency of the
estate assets or the calculation of the pro rata shares, the apportionment of expenses is
affirmed.




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        Question #6 asks whether the administrator should “reimburse the estate for rental
income received during the pendency of the estate.” This appears to question whether the
probate court properly accounted for the rental income received by the estate from the
family campground. The facts established for purposes of summary judgment show that
the campground paid $62,734.00 in rent to the estate during the pendency of the estate,
and that these amounts were included in the accounting. Stephen has not identified any
genuine issue of material fact with respect to this amount or offered any evidence to
support the existence of a factual dispute. As a result, the court must conclude that there
is no issue here for trial: the campground rent was properly accounted for in the final
accounting.

        The administrator has asked the court to expand the issues on appeal to include
the question of whether Stephen should have paid rent to the estate during the time he
spent living in the homestead after his mother’s death and before he accepted the deed to
the house. This court lacks jurisdiction to consider this question because the
administrator did not file a cross appeal from the final accounting of the probate court.2
Huddleston v. University of Vermont, 168 Vt. 249, 255–56 (1998).

        Finally, Stephen has argued that summary judgment is not an available procedure
in probate appeals because he is entitled to a trial de novo on the issues presented by the
statement of questions. Whitton v. Scott, 120 Vt. 452, 457 (1958). It is true that probate
appeals are de novo appeals in which there is a jury trial right, but is well established that
the entry of summary judgment does not infringe upon the right to jury trial when there is
no genuine issue of fact and either party is entitled to judgment as a matter of law.
V.R.C.P. 56(c)(3); In re Deer View LLC Subdivision Permit, 2009 VT 20, ¶ 3, 186 Vt.
536 (mem.). Moreover, ample authority supports the applicability of summary-judgment
procedures to probate appeals. See V.R.C.P. 72(f) (rules of civil procedure apply to
probate appeals); In re Estate of Price, 2006 VT 62, ¶ 9, 180 Vt. 548 (mem.) (entering
summary judgment for appellee in probate appeal).

        After reviewing the established facts in the light most favorable to the non-
moving party, the court concludes that there are no genuine issues for trial, and that the
estate administrator is entitled to judgment as a matter of law on all the questions
presented in the appeal. The motion for summary judgment is accordingly granted, and
the final judgment of the probate court is affirmed.




         2
            It is true, as the administrator argues, that the recent decision in Estate of Doran, 2010 VT 13,
suggests that the superior court should consider the issues fairly raised in a probate appeal rather than limit
itself to the statement of questions. Estate of Doran, however, involved the situation where the appellant
was seeking to present an argument related to, but not expressly stated in, her statement of questions.
There is nothing in Doran that suggests a departure from the general rule that an appellee must file a cross
appeal in order to obtain review of a claim of error.


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                                      ORDER

         Appellee’s Motion for Partial Dismissal and Partial Summary Judgment (MPR
#1), filed September 10, 2010, is granted. The final order of the probate court is
affirmed.

       Dated at Chelsea, Vermont this ____ day of March, 2010.


                                          ________________________________
                                          Hon. Harold E. Eaton, Jr.
                                          Superior Court Judge




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