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In re Estate of Fitzsimmons

Supreme Court of Vermont

October 18, 2013

In re Estate of Doris H. Fitzsimmons (Joanne Fitzsimmons Balkam, Executor, Appellant)

On Appeal from Superior Court, Rutland Unit, Civil Division, Mary Miles Teachout, J.

Richard Linton Brock and Thomas Dawson Brock of Brock & Brock, PLLC, Montpelier for Appellant.

James W. Swift and Cara L. Cookson of Langrock Sperry & Wool, LLP, Burlington, for Appellees.

PRESENT: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Zonay, Supr. J., Specially Assigned.


¶ 1. Appellant Joanne Fitzsimmons Balkam appeals the superior court’s partial summary judgment decision which reversed a probate court decision that had granted her permission, as executor of her mother’s estate, to physically partition and sell parts of a real estate property to make a division between the heirs of her mother’s residual estate. The appellees are two of her brothers, Dennis and James Fitzsimmons. We reverse and remand.

¶ 2. The facts related to this appeal are simple enough. Doris Fitzsimmons, a resident of New York, died testate on August 9, 2006. The will named Joanne Fitzsimmons Balkam as executor, and was probated in New York. In addition to the property that she owned in New York, decedent owned real property in Wells, Vermont, consisting of a farmhouse on a property of roughly 300 acres—the exact acreage is disputed, as discussed below. In March 2007, executor submitted the will to the Fair Haven District Probate Court—which no longer exists, but has been subsumed into the probate division of the superior court—for proceedings under an ancillary estate. The probate court admitted the will for proceedings and designated Joanne Fitzsimmons Balkam executor in Vermont as well.

¶ 3. Under the will, the Wells property is not devised specifically to any person or persons, but is instead part of the residual estate. The residuary clause of the will provides:

I give... the residue... of my estate... to my beloved children, JAMES J. FITZSIMMONS JR., DENNIS M. FITZSIMMONS, KEVIN R. FITZSIMMONS, and JOANNE FITSZIMMONS [sic] BALKAM... in as nearly equal shares as possible, the division thereof to be determined by any executors acting hereunder, if the interested parties cannot agree....

Regarding the powers of executor, the will provides: “I hereby grant to any executors at any time acting hereunder, full power and authority to retain, manage, and administer my estate as freely as I could handle my own affairs if living.” It also explicitly gives the executor a power of sale:

For any purpose, to sell for cash or on credit, exchange, lease for any term of years (including a term greater than authorized by statutory law), mortgage or extend or modify the terms of mortgages on any real or personal property or interest or estate therein at any time forming a part of my estate, and to execute such instruments as may be necessary or advisable.

Nowhere does the will mention any specific power to partition, although executor argues that the explicit power of “division” provides that power. It does, additionally, grant executor the power “[t]o make distribution in kind or in cash, or partly in each, among the persons entitled to share in my estate.”

¶ 4. By letter of August 19, 2009, executor proposed to the other heirs that she would take 110 acres of property, Kevin Fitzsimmons would take another 36-acre parcel, and all four beneficiaries would either sell the remaining property and divide the proceeds or take it by decree, with executor and Kevin taking smaller shares to equalize the value of each sibling’s distribution. On June 29, 2010, Dennis and James filed a Motion for Decree of Distribution, proposing instead that all four named beneficiaries be made tenants in common. Executor opposed this motion, citing the need to complete a survey of the property and emphasizing her position that the will gave her the power to physically divide the property. Dennis and James then filed an Objection to Accounting on August 13, 2010, in which they charged executor with waste and objected to her calculation of attorney’s fees and inclusion of maintenance fees in an accounting that she had submitted. In a supplemental memorandum filed September 10, 2010, executor presented a new partition plan in which she proposed to divide the property into three parcels, sell the parcel including the house and split the proceeds, and divide the rest of the property equally, giving one specified parcel to her and Kevin and the other to Dennis and James.

ΒΆ 5. The probate court issued an order on November 18, 2010 allowing executor to proceed with her partition plan but requiring that Dennis and James have the first choice between the subdivided parcels without the house. It also denied the waste claim and the objection to the accounting. On November 29, 2010, Dennis and James filed a motion for reconsideration/ clarification, but before the court issued any response, executor filed a notice of appeal to the superior court. On January 6, 2011, the probate court ...

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