Bonnie L. Avery
Estate of Allen D. Avery
Appeal from Superior Court, Orange Unit, Civil Division
Timothy B. Tomasi, J.
Whittington of Whittington Law Associates, PLLC, Hanover, New
Hampshire, for Appellant.
A. Langan and Justin B. Barnard of Dinse, Knapp &
McAndrew, P.C., Burlington, for Appellees Mark Avery and
Richard C. Carroll of Phillips, Dunn, Shriver & Carroll,
P.C., Brattleboro, for Appellee John T. Schiffman, Executor
of the Estate of Allen D. Avery.
PRESENT: Reiber, C.J., Skoglund and Robinson, JJ., and Bryan
(Ret.) and Davenport (Ret.), Supr. JJ., Specially Assigned.
1. Allen Avery (testator) died testate in 2008 and left
property to his spouse and children. Spouse, children, and
the executor of the estate have disputed how the estate's
administrative expenses should be allocated. The civil
division determined that expenses should be paid out of
spouse's share of the personal estate until paid in full
or until they exhaust her share, and that children's
share of the personalty should contribute to administrative
expenses only if spouse's share of the personalty is
insufficient. Spouse appeals. We affirm.
2. Although the parties below contested several issues
relating to testator's estate, resulting in a complicated
procedural history, the only issue before this Court is who
should pay the estate's administrative
expenses. Testator executed a will in 1997 that
bequeathed all his property to his wife. Subsequently,
testator executed a codicil that specifically bequeathed to
his three children his shares in Avery Inns of Vermont, Inc.
The codicil otherwise made no changes to the will.
3. Testator died in 2008. The probate court issued a
distribution decree in 2011. Pursuant to the specific devise
in the codicil, children received testator's shares of
Avery Inns of Vermont, Inc. Spouse received the balance of
the estate, which included a lakehouse, shares of Avery
Family, LLC, a bank account, a car, and a boat. Spouse
appealed the probate court's decision to the civil
division, and the parties partly resolved the matter with a
stipulated judgment. The civil division remanded the balance
of the case to the probate division, and spouse appealed the
resulting judgment to the civil division. Spouse requested
partial summary judgment, which the court denied in December
2014. In January 2015, the court approved a "Joint
Discovery and Scheduling Motion, " whereby the parties
agreed to have the court decide certain issues based on
written submissions, rather than through a trial. After a
hearing, the court issued an order in July 2016 that
partially addressed the issues raised by the parties and
requested further briefing. Following additional briefing and
a hearing, the court issued an opinion in February 2017,
which also incorporated the provisions of the July 2016
order. Spouse timely appeals the February 2017 decision.
4. At issue on appeal are: (1) whether the will prescribes an
allocation method for administrative expenses; (2) whether
the parties' previous agreements constituted a binding
stipulation in favor of proportional allocation; and (3)
whether the court erred in articulating the default rule of
abatement. The civil division determined that (1) the will
expressed a "preference" for abating personal
assets before real estate assets but said nothing about how
the expenses should be allocated among the shares of
personalty; (2) the parties were not bound to proportional
allocation; and (3) according to common-law principles,
expenses must be paid out of the residuary and general
devises first and specific devises second. The court also
found that testator's devise to children was specific,
and the devises to spouse were either general or residuary.
5. On review, the first two issues require us to construe the
will's language and interpret the parties' agreements
and prior court orders. These are conclusions of law that we
review de novo. In re Estate of Harding, 2005 VT 24,
¶ 6, 178 Vt. 139, 878 A.2d 201 (stating that review of
courts' conclusions of law in interpreting language of
deed "is plenary and nondeferential"); Lazarus
v. Sherman, 10 A.3d 456, 462 (R.I. 2011) ("When
interpreting the language of a will, . . . we proceed on a
de novo basis, just as we do when we interpret the
language in contracts." (quotation omitted)). The third
issue is also a question of law, which we review de novo.
Smith v. Desautels, 2008 VT 17, ¶ 8, 183 Vt.
255, 953 A.2d 620 (reviewing questions of law de novo).
6. First, we address whether the will prescribes an
allocation method for administrative expenses. In construing
a will, our objective is to discern the intent of the
testator. In re Estate of Holbrook, 2016 VT 13,
¶ 29, 201 Vt. 254, 140 A.3d 788. The court relies first
on "the language used, since, so far as it may be
legally carried out, that governs." In re Estate of
Barslow, 128 Vt. 192, 196, 260 A.2d 374, 377 (1969). If
the will's language is ambiguous, the court may rely on
extrinsic evidence to discern the testator's intent.
Estate of Holbrook, 2016 VT 13, ¶ 29. In this