'FlLED SUPERiOR COURT OF GUAM 2025 MAR -5 PM 4, 41 CLERli GF COURT IN THE SUPERIOR COURT OF GUAM ~J. BY•------+-- IN THE MATTER OF THE ESTATE PROBATE CASE NO. PR0092-24
OF DECISION AND ORDER GRANTING FARRELL ANTHONY COLE, MOTION TO DISMISS Decedent.
Heirs Heather S. White, Andrew L. Cole, Rowan White and Cora White ("Dr. Cole's
Children and Grandchildren") move to dismiss the Petition for Probate of the Estate of Dr.
Farrell Anthony Cole and for Appointment of Administrator and Letters of Administration, filed
by Petitioner Daniel J. Berman. Veronica P. Cole, Dr. Cole's surviving spouse and an heir to Dr.
Cole's estate, appointed Berman to serve as the Estate Administrator. The Court determines that
probate is appropriate in Tennessee and ancillary jurisdiction is not required in Guam. The Court
therefore GRANTS the dismissal.
I. PROCEDURAL BACKGROUND
Dr. Cole holds an ownership share in Guam SurgiCenter, L.L.C. Dr. Cole left Guam
around 2016, however, he continued to use Guam as his tax base. Resp. to Opp'n to Pet.
Probate, Ex. C (Oct. 4, 2024); Opp'n of Surviving Spouse to Mot. Dismiss at 13 (Jan. 3, 2025)
("Guam is where I last lived in the US and that is where I pay my taxes."). He moved to
Tennessee, acquired a Tennessee driver's license, received medical care in Tennessee, and passed
away there on April 17, 2023. According to Veronica, Dr. Cole did not intend on returning to
Guam. Deel. Trevor Atchley at 3 (Feb 10. 2025).
OR!G!NAL PR0092-24 DECISION AND ORDER GRANTING MOTION TO DISMISS Page2
Nominated by Veronica to serve as the administrator of Dr. Cole's estate, Berman filed a
Petition for Probate on May 28, 2024, in Guam stating that Dr. Col~ was domiciled in Guam. He
also sought to admit to probate various pages of a Will purportedly executed by Dr. Cole. Dr.
Cole's Children and Grandchildren appeared at the July 17, 2024 Petition hearing, and asked for
more time to oppose the Petition. The Court granted the extension. Hr'g (July 17, 2024).
Meanwhile, Heather filed a Petition for Intestate Administration in the Chancery Court of
Hamilton County, Tennessee on August 8, 2024, which the Tennessee court granted. Resp. to
Opp'n to Pet. Probate at 2, Ex. A; Deel. Heather S. White, Ex. 7 (Dec. 17, 2024). Dr. Cole's
Children and Grandchildren then filed an Opposition to Bennan's Petition before this Court,
arguing that because Dr. Cole was domiciled in Tennessee, Tennessee served as the proper
forum for probate. Opp'n to Pet. Probate at 3 (Sept. 18, 2024). They also argued that Dr. Cole
lacked the testamentary capacity to make a will and that the purported Will resulted from fraud
and undue influence by Veronica. The Opposition prompted a Will Contest; thus, the Court
issued a Citation pursuant to 15 GCA § 1603. Citation (Oct. 4, 2024).
Dr. Cole's Children and Grandchildren then moved to dismiss the proceedings in Guam,
contesting this Court's jurisdiction based on Dr. Cole's domicile in Tennessee. Veronica
responded, arguing that Dr. Cole was domiciled in Guam as evidenced by his paying taxes in
Guam, and that the estate's only property is located in Guam. The Court heard the Motion on
January 16, 2025, and took the issue under advisement.
In the interim, the Tennessee court has determined that Dr. Cole was domiciled in
Tennessee and that probate will proceed in Tennessee. Deel. Trevor Atchley at 4. The
Tennessee court also determined that unless an ancillary probate in Guam was necessary, it will
handle the sale of any Dr. Cole's interest in Guam SurgiCenter. Id. ("I certainly hope that they
ORIGINAL PR0092-24 DECISION AND ORDER GRANTING MOTION TO DISMISS Page3
will accept an order from a chancellor in Hamilton County to proceed with the sales of the shares
in the surgery center. And, if not, if an ancillary probate or the existing probate proceeding in
Guam needs to be converted to an ancillary probate, great. Get it done.").
II. LAW AND ANALYSIS
A. The Tennessee Court is the Domiciliary Jurisdiction.
As just noted, the Chancery Court in Tennessee has determined it has jurisdiction over
the probate of Dr. Cole's Estate. This Court respects that determination. Both 28 U.S.C.A. §
1738 and Guam law give the Tennessee court's determination that Dr. Cole was domiciled in
Tennessee the same credit and effect in Guam as it would in Tennessee. 28 U.S.C.A. § 1738
("such acts, records and judicial proceedings or copies, thereof, so authenticated, shall have the
same full faith and credit in every court within the United States and its Territories and
Possessions as they have by law or usage in the courts ... from which they are taken."); 6 GCA §
4214 ("the effect of a judicial record ofa state ... is the same in Guam as in the place where it
was made.").
Moreover, the Court agrees with the Tennessee Court's determination that Dr. Cole was
domiciled in Tennessee. Domicile is a location where one establishes a fixed habitation or abode
in a particular place, and intends to remain there permanently or indefinitely. Philips v. Pitt
County Mem '/ Hosp., Inc., No. 23-00025, 2024 WL 5132119, at *10 (D. Guam App. Div. Dec.
17, 2024). Veronica informed the Tennessee Court that Dr. Cole never intended to return to
Guam. Deel. Trevor Atchley at 3. Given that Dr. Cole had no intention to remain in Guam
permanently or indefinitely, his domicile is not Guam, regardless of where he chose to file taxes.
B. The Court is Not Required to Proceed with Ancillary Jurisdiction.
The Court next turns to determining whether ancillary jurisdiction is required in Guam
ORIGINAL PR0092-24 DECISION AND ORDER GRANTING MOTION TO DISMISS Page4
for the probate to continue. Veronica states that the only property in Dr. Cole's estate is his
membership interest in Guam SurgiCenter and the only situs of this interest is in Guam. In her
Opposition, Veronica details how Heather requested Guam SurgiCenter's Chief Executive
Officer "cash out" and transfer the membership interest and/or financial benefits to her. Opp'n
of Surviving Spouse to Mot. Dismiss at 2. However, Guam SurgiCenter did not deliver any
distributions to Heather or Dr. Cole's estate because it requested an order from this Court prior to
doing so. Id. Thus, at present, there are no distributions from Guam SurgiCenter that this Court
must immediately handle.
Veronica also argues there are potential issues with the interest in Guam SurgiCenter that
will need to be resolved through this Court, specifically determining who has the authority to
receive a distribution and potential litigation or claims against Guam SurgiCenter to resolve the
Estate's request to transfer or sell Dr. Cole's interest. Id. at 3. The Court recognizes that
generally, interests or shares in stock have their situs in the state in which the corporation has
been organized. However, courts have found this determination can vary by state and
circumstances. Miller's Estate v. Executrix ofMiller's Estate, 136 P. 255,257 (Kan. 1913).
Courts have found that when the only asset in an estate is ownership of stock by a non-resident
decedent there is not sufficient basis to warrant the appointment of ancillary administrators in the
situs of the corporation. Id.
Free access — add to your briefcase to read the full text and ask questions with AI
'FlLED SUPERiOR COURT OF GUAM 2025 MAR -5 PM 4, 41 CLERli GF COURT IN THE SUPERIOR COURT OF GUAM ~J. BY•------+-- IN THE MATTER OF THE ESTATE PROBATE CASE NO. PR0092-24
OF DECISION AND ORDER GRANTING FARRELL ANTHONY COLE, MOTION TO DISMISS Decedent.
Heirs Heather S. White, Andrew L. Cole, Rowan White and Cora White ("Dr. Cole's
Children and Grandchildren") move to dismiss the Petition for Probate of the Estate of Dr.
Farrell Anthony Cole and for Appointment of Administrator and Letters of Administration, filed
by Petitioner Daniel J. Berman. Veronica P. Cole, Dr. Cole's surviving spouse and an heir to Dr.
Cole's estate, appointed Berman to serve as the Estate Administrator. The Court determines that
probate is appropriate in Tennessee and ancillary jurisdiction is not required in Guam. The Court
therefore GRANTS the dismissal.
I. PROCEDURAL BACKGROUND
Dr. Cole holds an ownership share in Guam SurgiCenter, L.L.C. Dr. Cole left Guam
around 2016, however, he continued to use Guam as his tax base. Resp. to Opp'n to Pet.
Probate, Ex. C (Oct. 4, 2024); Opp'n of Surviving Spouse to Mot. Dismiss at 13 (Jan. 3, 2025)
("Guam is where I last lived in the US and that is where I pay my taxes."). He moved to
Tennessee, acquired a Tennessee driver's license, received medical care in Tennessee, and passed
away there on April 17, 2023. According to Veronica, Dr. Cole did not intend on returning to
Guam. Deel. Trevor Atchley at 3 (Feb 10. 2025).
OR!G!NAL PR0092-24 DECISION AND ORDER GRANTING MOTION TO DISMISS Page2
Nominated by Veronica to serve as the administrator of Dr. Cole's estate, Berman filed a
Petition for Probate on May 28, 2024, in Guam stating that Dr. Col~ was domiciled in Guam. He
also sought to admit to probate various pages of a Will purportedly executed by Dr. Cole. Dr.
Cole's Children and Grandchildren appeared at the July 17, 2024 Petition hearing, and asked for
more time to oppose the Petition. The Court granted the extension. Hr'g (July 17, 2024).
Meanwhile, Heather filed a Petition for Intestate Administration in the Chancery Court of
Hamilton County, Tennessee on August 8, 2024, which the Tennessee court granted. Resp. to
Opp'n to Pet. Probate at 2, Ex. A; Deel. Heather S. White, Ex. 7 (Dec. 17, 2024). Dr. Cole's
Children and Grandchildren then filed an Opposition to Bennan's Petition before this Court,
arguing that because Dr. Cole was domiciled in Tennessee, Tennessee served as the proper
forum for probate. Opp'n to Pet. Probate at 3 (Sept. 18, 2024). They also argued that Dr. Cole
lacked the testamentary capacity to make a will and that the purported Will resulted from fraud
and undue influence by Veronica. The Opposition prompted a Will Contest; thus, the Court
issued a Citation pursuant to 15 GCA § 1603. Citation (Oct. 4, 2024).
Dr. Cole's Children and Grandchildren then moved to dismiss the proceedings in Guam,
contesting this Court's jurisdiction based on Dr. Cole's domicile in Tennessee. Veronica
responded, arguing that Dr. Cole was domiciled in Guam as evidenced by his paying taxes in
Guam, and that the estate's only property is located in Guam. The Court heard the Motion on
January 16, 2025, and took the issue under advisement.
In the interim, the Tennessee court has determined that Dr. Cole was domiciled in
Tennessee and that probate will proceed in Tennessee. Deel. Trevor Atchley at 4. The
Tennessee court also determined that unless an ancillary probate in Guam was necessary, it will
handle the sale of any Dr. Cole's interest in Guam SurgiCenter. Id. ("I certainly hope that they
ORIGINAL PR0092-24 DECISION AND ORDER GRANTING MOTION TO DISMISS Page3
will accept an order from a chancellor in Hamilton County to proceed with the sales of the shares
in the surgery center. And, if not, if an ancillary probate or the existing probate proceeding in
Guam needs to be converted to an ancillary probate, great. Get it done.").
II. LAW AND ANALYSIS
A. The Tennessee Court is the Domiciliary Jurisdiction.
As just noted, the Chancery Court in Tennessee has determined it has jurisdiction over
the probate of Dr. Cole's Estate. This Court respects that determination. Both 28 U.S.C.A. §
1738 and Guam law give the Tennessee court's determination that Dr. Cole was domiciled in
Tennessee the same credit and effect in Guam as it would in Tennessee. 28 U.S.C.A. § 1738
("such acts, records and judicial proceedings or copies, thereof, so authenticated, shall have the
same full faith and credit in every court within the United States and its Territories and
Possessions as they have by law or usage in the courts ... from which they are taken."); 6 GCA §
4214 ("the effect of a judicial record ofa state ... is the same in Guam as in the place where it
was made.").
Moreover, the Court agrees with the Tennessee Court's determination that Dr. Cole was
domiciled in Tennessee. Domicile is a location where one establishes a fixed habitation or abode
in a particular place, and intends to remain there permanently or indefinitely. Philips v. Pitt
County Mem '/ Hosp., Inc., No. 23-00025, 2024 WL 5132119, at *10 (D. Guam App. Div. Dec.
17, 2024). Veronica informed the Tennessee Court that Dr. Cole never intended to return to
Guam. Deel. Trevor Atchley at 3. Given that Dr. Cole had no intention to remain in Guam
permanently or indefinitely, his domicile is not Guam, regardless of where he chose to file taxes.
B. The Court is Not Required to Proceed with Ancillary Jurisdiction.
The Court next turns to determining whether ancillary jurisdiction is required in Guam
ORIGINAL PR0092-24 DECISION AND ORDER GRANTING MOTION TO DISMISS Page4
for the probate to continue. Veronica states that the only property in Dr. Cole's estate is his
membership interest in Guam SurgiCenter and the only situs of this interest is in Guam. In her
Opposition, Veronica details how Heather requested Guam SurgiCenter's Chief Executive
Officer "cash out" and transfer the membership interest and/or financial benefits to her. Opp'n
of Surviving Spouse to Mot. Dismiss at 2. However, Guam SurgiCenter did not deliver any
distributions to Heather or Dr. Cole's estate because it requested an order from this Court prior to
doing so. Id. Thus, at present, there are no distributions from Guam SurgiCenter that this Court
must immediately handle.
Veronica also argues there are potential issues with the interest in Guam SurgiCenter that
will need to be resolved through this Court, specifically determining who has the authority to
receive a distribution and potential litigation or claims against Guam SurgiCenter to resolve the
Estate's request to transfer or sell Dr. Cole's interest. Id. at 3. The Court recognizes that
generally, interests or shares in stock have their situs in the state in which the corporation has
been organized. However, courts have found this determination can vary by state and
circumstances. Miller's Estate v. Executrix ofMiller's Estate, 136 P. 255,257 (Kan. 1913).
Courts have found that when the only asset in an estate is ownership of stock by a non-resident
decedent there is not sufficient basis to warrant the appointment of ancillary administrators in the
situs of the corporation. Id. Additionally, courts have found that when ancillary administrators
have yet to be appointed, a transfer of interest by the domiciliary administrator is permitted.
Brown v. San Francisco Gaslight Co., 58 Cal. 426,428 (1881); Luce v. Manchester & L. R. R.,
63 N.H. 588, 590 ( 1886).
Veronica cites California case law supporting ancillary jurisdiction in Guam. However,
her references pose a different procedural posture. Murphy v. Crouse deals with a situation
ORIGINAL PR0092-24 DECISION AND ORDER GRANTING MOTION TO DISMISS Page 5
where an ancillary administrator had already been appointed. 66 P. 971,972 (Cal. 1901).
Additionally, she references Fishback v. J C. Forkner Fig Gardens, but that court explicitly
stated that "in the absence of ancillary administration, the California courts will recognize, as a
matter of comity, the title vested in the plaintiffs by the decree of distribution rendered by the
[domiciliary] probate court." 23 P.2d 293, 293 (Cal. 1933).
Currently, there is no appointed administrator for the probate in Guam, but as the caselaw
indicates, one is not necessary at this time to handle the Guam SurgiCenter interest. Instead, a
domiciliary administrator may manage this interest without the need to proceed with ancillary
jurisdiction. In other words, the transfer of Dr. Cole's interest in Guam SurgiCenter to his Estate
can still occur through an order from and with the oversight by the Tennessee court. 1
III.CONCLUSION AND ORDER
The Court finds that Tennessee is the domiciliary jurisdiction for probate of Dr. Cole's
estate and that ancillary jurisdiction in Guam is unnecessary. Accordingly, the Court GRANTS
Dr. Cole's Children and Grandchildren's Motion to Dismiss Petition for Probate of the Estate of
Farrell Anthony Cole and for Appointment of Administrator and Letters of Administration.
This matter is DISMISSED without prejudice.
SO ORDERED, 5 March 2025.
HON. ¥ZE1M)IRIARTE • • ~ ,,✓../. Judge, Superrnr-C~'t!~fquam . V, ,:9-'( r ' Appeanng Attorneys: ~>~ -6{ Daniel J. Berman, Esq., Berman Law Firm for Petitioner Daniel J. Berril'all::::-:...· Jon A. Visosky, Esq., Roberts Fowler & Visosky LLP for Heather S. White, Andrew L. Cole, Rowan White, and Cora White
1 The Tennessee court indicated that ancillary proceedings may be needed if Guam SurgiCenter refuses to accept its Orders. This Court agrees that ancillary proceedings may be warranted here under this circumstance.
ORIGINAL