In re Estate of Fitzsimmons, 2013 VT
95
Refreshingly, today’s case brings us to an area of law
rarely addressed by the SCOV—the scope of the authority of an executor to divvy
up the ‘residual estate’ of a testator to carry out the intent of the dead person—also
known as the decedent—even if that intent requires the executor to break up the
old, ancestral Vermont farmstead—and even if not all of the beneficiaries want such
divvying.
In other words, Fitzisimmons
is a case about the siblings that want to keep the property in the family
versus the siblings that want to sell the property and take the money. A classic ‘flatland[ers] fable.’
The decedent in today’s case died in New York in 2006. She had a will, and she designated her
daughter (who we shall call ‘the eternally burdened eldest daughter,’ or EBED)
as executor. EBED dutifully carried out the thankless task of settling mom’s
estate and dividing those things that mom didn’t specifically bequeath in her
will. Chief amongst those assorted
miscellany was a farmhouse and nearly 300 acres in Wells, Vermont.
(As a Vermonter born and bred, I cannot fathom anyone other
than a flatlander owning a piece of god’s acre and forgetting to put it in the
will—which, if you ask me, assures us that Ms. Fitzsimmons did, in fact, want
to dispose of the Vermont property, but since native hunches remain
inadmissible, I digress).
EBED determined after a spell to “partition” the Wells
property and distribute the portioned property and/or proceeds under a formula
not relevant to the analysis. Two
brothers, who we shall refer to as “Darrel and the other brother Darrel” filed
a Motion for Decree of Distribution, proposing that the siblings all be made
tenants in common of the Wells property—this is a somewhat traditional approach
to the settling of the “family land,” in which the siblings, whether they want
to or not, keep the property in the family.
Ultimately, the probate court ruled that EBED could
partition and distribute the property, including selling “a chunk” (my legal
description) and ordering that Darrel and Darrel would have dibs on which
parcel they got to keep. Of course, in
this era of reasonable behavior, both sides filed various motions in both the
Superior and Probate courts, resulting in a variety of decisions, orders,
remands, and reversals of the type that lawyers sometimes dream of and
appellate courts must fear.
Suffice it to say, the matter ended up before our Supreme
Court, which applied the wisdom of Solomon and decreed justice.
As an initial matter, the SCOV notes that both parties make
policy/common law arguments regarding the historic ability of a testator (the
dead person) to control what happens to their estate when they die. As noted by
others, the dead can only control the property for so long—then it devolves to
someone else to do something with it.
Still, the will, that is the hand of the dead, controls the
beginning of the game, and the SCOV moves to the initial premise of probate law—that
the “primary objective in construing a will is to determine the intent of the
testator” (a person who dies leaving a will in force, from the Latin testari). To do so, the SCOV must review the will in its
entirety to determine the intent of the testator.
The issue in the case, when we get right down to it, is
whether the will should be interpreted to require that the siblings hold the
property as tenants in common, or whether there is sufficient indication in the
use of language to make clear mom’s intent to allow EBED to split the parcel up
and distribute it among the beneficiaries. For this analysis, the SCOV jumps
into the way back machine and pulls out two cases from 1910.
(“Aye, those were the days, when men were men and lawyers could
scriven a will, I tell ya. Not like these welps these days with their fancy
typin’ machines. No sir”).
Parsing the language as the SCOV does will take up too much
time and paper for the purposes of this blog. Suffice to say that when drafting a will, “as
nearly equal as possible,” as opposed to “equal shares” and “share and share
alike,” can make all the difference in the world when it comes to breaking up
the old farm. Ultimately, the court
finds that EBED has the power under the will to partition the property.
But wait!
The trial court had determined that title to realty (or
“real property:” generally, land and improvement thereto) passes immediately
upon death to the legal inheritors of said realty, and therefore, cannot be
partitioned and/or devised by EBED.
Fortunately, we have statutes that cover just this issue. The SCOV goes to “the books,” and finds
that the trial court’s analysis is “narrowly” correct, but its decision is
wrong.
The SCOV finds
that to apply the trial court analysis would thwart the bulk of both statute as
embodied in Title 14, and the power of the probate court to authorize fiduciaries
to sell real property “where beneficial and authorized by the will . . .”
So, on balance,
the SCOV finds that an executor can, in fact, divvy up the old hill farm, and
sell some of it, under this particular will. However, the SCOV concludes by
stating that power is not unlimited, and remands the case to the trial and probate
courts for further proceedings.
So it’s another
round for the children and their attorneys.
The good news is that the children who have now sacrificed the past
eight years of their life to this case will really never forget mom and what
she left them. Now, that’s a legacy!
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