Estate of Silsby

2006 ME 138, 914 A.2d 703, 2006 Me. LEXIS 157
CourtSupreme Judicial Court of Maine
DecidedNovember 28, 2006
StatusPublished
Cited by7 cases

This text of 2006 ME 138 (Estate of Silsby) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Silsby, 2006 ME 138, 914 A.2d 703, 2006 Me. LEXIS 157 (Me. 2006).

Opinion

DANA, J.

[¶ 1] Herbert T. Silsby II, personal representative of the Estate of Alice J. Silsby and trustee of testamentary trusts created by Alice’s will, appeals from a judgment of the Hancock County Probate Court (Morton, J.) construing Alice’s will in favor of the petitioner, the Estate of Donald E. Bridges. After post-judgment proceedings, the Probate Court surcharged Herbert Silsby personally for the amount of the judgment, plus interest of 5% per an-num since 1990. The court also approved the payment of trustee fees, and awarded the Bridges Estate a portion of its attorney fees. Herbert contends that the Probate Court erroneously interpreted the will, erred in surcharging him personally, and awarded an excessive amount of interest. The Bridges Estate cross-appeals, contending that the Probate Court erred in allowing the trustee fees and disallowing the great percentage of its attorney fees. We affirm the judgment.

I. BACKGROUND

[¶ 2] Alice Silsby never married and had no children of her own. She had five brothers and sisters, all of whom had children. In 1973, Alice asked her nephew, attorney Herbert T. Silsby II, to prepare her will. The will provides for several specific bequests upon Alice’s death, including a bequest of $1000 to each of her nieces and nephews. The will further directs that the remaining assets of Alice’s estate be placed in two equal trusts for the benefit of Alice’s sisters, Frances and Mary, during their lifetime, with the residue to be distributed after their death to the children of Alice’s five siblings, with one-fifth going to each family.

[¶ 3] The original will appointed Herbert as personal representative and as co-trustee with the Merrill Trust Company. A codicil to the will signed in. 1975 made Herbert sole trustee. There is no provision in the will or codicil for payment of the trustee, but Herbert testified that he and Alice had an oral agreement that he would be paid 5% of the value of the trusts. Over the course of their existence, the trusts paid Herbert $18,641 in fees.

[¶ 4] Alice died in 1975. Herbert acted as personal representative of her estate, and then acted as trustee from 1976 until [705]*705the final distribution of trust assets in 1992. At the time the trusts were created, the value of the assets was $93,484. At the time of final distribution, the value was $367,046.

[¶ 5] Mary died in 1988, and Frances in 1989. Frances had one child, Donald Bridges, who died seven weeks before his mother. Although there were two separate trusts, Herbert waited until after both Mary and Frances died to distribute the trusts’ proceeds. He made a partial distribution in 1990 of $210,000, and a final distribution in 1992 of $39,330. No assets remained in trust thereafter.

[¶ 6] Herbert interpreted Alice’s will according to his understanding that Alice did not intend to leave devises to generations beyond her nieces and nephews. He therefore did not make any distributions to the Bridges Estate. He viewed Donald’s dying after Alice (and Mary) but before Frances as creating a lapsed legacy, and distributed Donald’s one-fifth share according to the intestacy statute. Alice’s nieces and nephews, including Herbert, each received $3626 as their intestacy share. Donald’s daughter, Donna Ames, and son, Robert Bridges, each received $1527 as their intestacy share.

[117] Before making the distributions, Herbert did not consult an attorney outside his immediate family, nor did he petition the Probate Court for instructions pursuant to 18-A M.R.S.A. § 7-201 (1998), repealed by P.L.2003, ch. 618, § B-10 (effective July 1, 2005).1

[¶ 8] Donna brought an action in Probate Court to construe the will and for a declaratory judgment. She also contested the amount of trustee fees paid to Herbert and sought attorney fees. Dorothy Bridges, personal representative of the Bridges Estate, was later added as petitioner.

[¶ 9] A hearing was held on September 29, 1997. The Probate Court did not issue its decision until four years later, on October 4, 2001. The court determined that Herbert had erred in his interpretation of Alice’s will, concluding that the terms unambiguously provided that Donald’s share had not lapsed, but had vested upon Alice’s death. The court awarded Donald’s estate $46,811, plus interest of 5% per annum from July 5,1990.

[¶ 10] The court left the issue of trustee fees open so that Herbert could present additional evidence regarding whether the fees he had been paid were reasonable pursuant to 18-A M.R.S.A. § 7-205 (1998), repealed by P.L.2003, ch. 618, § B-10 (effective July 1, 2005). The court also anticipated that Herbert would need to seek the court’s assistance in recouping the Bridges Estate’s distribution from the other trust beneficiaries. See 18-A M.R.S. §§ 3-909, 3-1006 (2005).

[¶ 11] Six months later, when no distribution had been made to the Bridges Estate, and Herbert had not sought assistance from the court in collecting the amount of the judgment from other trust beneficiaries, the Bridges Estate filed a petition to surcharge Herbert individually for the full amount of the judgment, including interest, on the ground that he had failed to observe the standard of care required of a trustee pursuant to 18-A [706]*706M.R.S.A. § 7-306 (1998), repealed by P.L. 2003, ch. 618, § B-ll (effective July 1, 2005). The petition also requested that Herbert be ordered to repay the trustee fee that had been paid, and to pay the Bridges Estate’s attorney fees.

[¶ 12] After a hearing, the Probate Court surcharged Herbert individually the amount owed to the Bridges Estate, including the interest; approved the $18,641 in trustee fees as reasonable; and ordered Herbert to pay $937 in attorney fees, representing amounts incurred due to delays caused by Herbert, instead of the amount in excess of the $11,000 requested.

[¶ 13] Herbert appeals the judgment construing the will in favor of the Bridges Estate and surcharging him individually. The Bridges Estate cross-appeals from the award of trustee fees and the denial, in large part, of its request for attorney fees.

II. DISCUSSION

A. Construction of the Will

[¶ 14] Herbert contends that the Probate Court erred in determining that the will unambiguously provides that Donald Bridges’s one-fifth share vested upon Alice’s death. He argues that the will, read as a whole, indicates that Alice intended that the trust residue be distributed to her nieces and nephews, but not to subsequent generations.

[¶ 15] We review a court’s interpretation of a will de novo. See Estate of Lord, 2002 ME 71, ¶ 10, 795 A.2d 700, 703. The Probate Code provides that “the intention of a testator as expressed in his will controls the legal effect of his dispositions.” 18-A M.R.S. § 2-603 (2005). “A court must interpret the will within the four corners of the document but may use the context of the entire will to interpret specific sections.” Estate of Wilson, 2003 ME 92, ¶ 11, 828 A.2d 784, 786. “A court may resort to extrinsic evidence to discern the intention of the testator if the will is ambiguous.” Id.

[¶ 16] The Probate Court concluded that the will is unambiguous, and that the following clause, found at Article III, ¶ 1(a)(1)(a), provides that Donald’s one-fifth share vested upon Alice’s death:

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Cite This Page — Counsel Stack

Bluebook (online)
2006 ME 138, 914 A.2d 703, 2006 Me. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-silsby-me-2006.