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Avery v. Estate of Avery

Supreme Court of Vermont

June 15, 2018

Bonnie L. Avery
v.
Estate of Allen D. Avery

          On Appeal from Superior Court, Orange Unit, Civil Division Timothy B. Tomasi, J.

          W. E. Whittington of Whittington Law Associates, PLLC, Hanover, New Hampshire, for Appellant.

          Mark A. Langan and Justin B. Barnard of Dinse, Knapp & McAndrew, P.C., Burlington, for Appellees Mark Avery and Jeffrey Avery.

          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.

          REIBER, C.J.

         ¶ 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.[1] 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.[2] 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).

         I. Will Construction

         ¶ 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, ΒΆ 29. In this ...


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