In Re Estate of Kingsbury

2008 ME 79, 946 A.2d 389, 2008 Me. LEXIS 79, 2008 WL 1947963
CourtSupreme Judicial Court of Maine
DecidedMay 6, 2008
DocketDocket: Sag-07-520
StatusPublished
Cited by18 cases

This text of 2008 ME 79 (In Re Estate of Kingsbury) 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
In Re Estate of Kingsbury, 2008 ME 79, 946 A.2d 389, 2008 Me. LEXIS 79, 2008 WL 1947963 (Me. 2008).

Opinions

CLIFFORD, J.

[¶ 1] The estate of Bruce H. Kings-bury, through its personal representative, Robin L. Whorff, appeals from an order entered in the Sagadahoc County Probate Court (Voorhees, J.) (1) providing that Whorff, in her individual capacity, submit to genetic testing, and (2) if Whorff does not so submit, authorizing exhumation of Kingsbury’s body for genetic testing, the order resulting from a petition filed by Terri L. MacMahan asserting that she is Kingsbury’s biological child. The Estate contends that the court lacked authority to order exhumation for the purpose of genetic testing. Athough MacMahan is correct that this is an appeal from a judgment that is not final and therefore is interlocutory, we accept the appeal pursuant to a recognized exception to the final judgment rule, and, addressing the merits of the appeal, we affirm the order.

I. BACKGROUND

[¶ 2] Kingsbury, of Woolwich, died on March 18, 2006. Whorff, his daughter, filed an application in the Probate Court seeking informal probate of his will and appointment of herself as personal representative pursuant to 18-A M.R.S. § 8-301 (2007).1 In April of 2006, the court did informally admit Kingsbury’s will to probate, and appointed Whorff as personal representative. One month later, on May 4, 2006, MacMahan petitioned the court, pursuant to 18-A M.R.S. § 3-1001 (2007), for construction of Kingsbury’s will and a determination of his heirs, asserting that she is Kingsbury’s daughter by Gloria A. Kingsbury, Kingsbury’s former wife, conceived while Gloria was in a prior marriage of her own. Having failed to reach an agreement with Whorff for genetic testing to determine if Whorff and MacMahan are half-sisters, MacMahan moved to compel Whorff as an individual to submit to DNA testing or, alternatively, for exhumation of Kingsbury’s body for DNA testing.

[392]*392[¶ 3] The court issued an order requiring Whorff to submit to DNA testing within forty-five days, or, if she refused, authorizing exhumation of and DNA testing on Kingsbury’s body. The Estate filed this appeal.

II. DISCUSSION

A. Interlocutory Appeal

[¶ 4] As a threshold matter, MacMahan contends that the estate’s appeal should be dismissed as interlocutory. “It is well settled that appeals, in order to be cognizable, must be from a final judgment.” Bruesewitz v. Grant, 2007 ME 13, ¶ 5, 912 A.2d 1255, 1257 (quotation marks omitted). A final judgment is one that “fully decides and disposes of the entire matter pending before the court or administrative agency, leaving no questions for the future consideration and judgment of the court or administrative agency.” MacPherson v. Estate of MacPherson, 2007 ME 52, ¶ 5, 919 A.2d 1174, 1175 (quotation marks omitted). Any other interim order is deemed interlocutory and is not subject to appellate review until such a final judgment issues. Bruesewitz, 2007 ME 13, ¶ 5, 912 A.2d at 1257. Nevertheless, there are three recognized exceptions to the final judgment rule: the collateral order exception, the death knell exception, and the judicial economy exception. Id. ¶¶ 6-8, 912 A.2d at 1257-58.

[¶ 5] Because the court has yet to make a final determination as to Kings-bury’s heirs, the Estate acknowledges that its appeal is interlocutory, but relies on the death knell exception to the final judgment rule to argue that we should nevertheless consider its appeal on the merits. The death knell exception provides for appellate review of an interlocutory order when “substantial rights of a party will be irreparably lost if review is delayed until final judgment.” Id. ¶ 8, 912 A.2d at 1258 (quotation marks omitted). It applies “only to orders that, without an interlocutory appeal, result in a substantial loss or sacrifice of the rights, property, or claim at issue.” Id Only when “the injury to the plaintiffs claimed right would otherwise be imminent, concrete, and irreparable” will we review an interlocutory appeal pursuant to the death knell exception. In re Bailey M., 2002 ME 12, ¶ 7, 788 A.2d 590, 594 (quotation marks omitted). A right is irreparably lost “if we could not effectively provide a remedy to the appellant if we ultimately decided to vacate the interlocutory determination after a final judgment.” Id. ¶ 8, 788 A.2d at 594. Loss is not irreparable “if the harm is temporary and will only last for the duration of the litigation.” Id.

[¶ 6] We agree with the Estate that if it is not permitted to seek redress now, its right to prevent the exhumation of Kingsbury’s remains will be irreparably lost.2 Although there is no property right [393]*393to a dead body at common law, and once buried, a body comes within the “custody of the law,” the next of kin nevertheless “do have a protectable interest in the body that would allow them to challenge a disinterment.” In re Estate of Medlen, 286 Ill.App.3d 860, 222 Ill.Dec. 220, 677 N.E.2d 33, 35-36 (1997). If indeed the Estate has a right to prevent exhumation and genetic testing of Kingsbury’s body and is barred from exercising it now, that right will be lost forever, and we could afford no adequate remedy for the violation of that right if the Probate Court’s final judgment on MacMahan’s petition was later vacated. The Estate’s appeal thus satisfies the death knell exception to the final judgment rule, and we agree to consider the appeal on the merits despite its interlocutory nature.

B. Authority

[¶ 7] Although it concedes that the Probate Court has personal jurisdiction over the parties and subject matter jurisdiction over the type of action, the Estate nevertheless contends that the court lacks authority to order exhumation of Kingsbury’s remains for genetic testing based on the absence of any statutory source of such authority.3 The trial court’s authority to undertake particular action, including an interpretation of the underlying statutory provisions, is an issue of law that we examine de novo. Kilroy v. Ne. Sunspaces, Inc., 2007 ME 119, ¶ 6, 930 A.2d 1060, 1062. In analyzing the court’s statutory authority, we look first to the plain language of the provision at issue, L’Heureux v. Michaud, 2007 ME 149, ¶ 7, 938 A.2d 801, 803. Only if that provision is ambiguous do we consider other indicia of legislative intent, such as legislative history. Id. A statutory provision is deemed ambiguous if it is “reasonably susceptible to multiple interpretations.” Id.

[¶ 8] The Probate Court’s adjudicatory authority is set forth in two particular statutory provisions. First, the subject matter jurisdiction provision of the Probate Code vests the Probate Court with “full power to make orders, judgments and decrees and take all other action necessary and proper to administer justice in the matters which come before it.” 18-A M.R.S. § l-302(b) (2007). Second, section 252 of title 4 of the Maine Revised Statutes provides:

The courts of probate shall have jurisdiction in equity, concurrent with the Superior Court, of all cases and matters relating to the administration of the estates of deceased persons, to wills and to trusts which are created by will or other written instrument.

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Bluebook (online)
2008 ME 79, 946 A.2d 389, 2008 Me. LEXIS 79, 2008 WL 1947963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-kingsbury-me-2008.