Monday, April 7, 2014

Perpetual Issues


In re Estate of Fitzsimmons2013 VT 95

Refreshingly, today’s case brings us to an area of law rarely addressed by the SCOV—the scope of the authority of an executor to divvy up the ‘residual estate’ of a testator to carry out the intent of the dead person—also known as the decedent—even if that intent requires the executor to break up the old, ancestral Vermont farmstead—and even if not all of the beneficiaries want such divvying. 

In other words, Fitzisimmons is a case about the siblings that want to keep the property in the family versus the siblings that want to sell the property and take the money.  A classic ‘flatland[ers] fable.’

The decedent in today’s case died in New York in 2006.  She had a will, and she designated her daughter (who we shall call ‘the eternally burdened eldest daughter,’ or EBED) as executor. EBED dutifully carried out the thankless task of settling mom’s estate and dividing those things that mom didn’t specifically bequeath in her will.  Chief amongst those assorted miscellany was a farmhouse and nearly 300 acres in Wells, Vermont.

(As a Vermonter born and bred, I cannot fathom anyone other than a flatlander owning a piece of god’s acre and forgetting to put it in the will—which, if you ask me, assures us that Ms. Fitzsimmons did, in fact, want to dispose of the Vermont property, but since native hunches remain inadmissible, I digress).


EBED determined after a spell to “partition” the Wells property and distribute the portioned property and/or proceeds under a formula not relevant to the analysis.  Two brothers, who we shall refer to as “Darrel and the other brother Darrel” filed a Motion for Decree of Distribution, proposing that the siblings all be made tenants in common of the Wells property—this is a somewhat traditional approach to the settling of the “family land,” in which the siblings, whether they want to or not, keep the property in the family.

Ultimately, the probate court ruled that EBED could partition and distribute the property, including selling “a chunk” (my legal description) and ordering that Darrel and Darrel would have dibs on which parcel they got to keep.  Of course, in this era of reasonable behavior, both sides filed various motions in both the Superior and Probate courts, resulting in a variety of decisions, orders, remands, and reversals of the type that lawyers sometimes dream of and appellate courts must fear.  

Suffice it to say, the matter ended up before our Supreme Court, which applied the wisdom of Solomon and decreed justice.

As an initial matter, the SCOV notes that both parties make policy/common law arguments regarding the historic ability of a testator (the dead person) to control what happens to their estate when they die. As noted by others, the dead can only control the property for so long—then it devolves to someone else to do something with it.

Still, the will, that is the hand of the dead, controls the beginning of the game, and the SCOV moves to the initial premise of probate law—that the “primary objective in construing a will is to determine the intent of the testator” (a person who dies leaving a will in force, from the Latin testari).  To do so, the SCOV must review the will in its entirety to determine the intent of the testator.

The issue in the case, when we get right down to it, is whether the will should be interpreted to require that the siblings hold the property as tenants in common, or whether there is sufficient indication in the use of language to make clear mom’s intent to allow EBED to split the parcel up and distribute it among the beneficiaries. For this analysis, the SCOV jumps into the way back machine and pulls out two cases from 1910.

(“Aye, those were the days, when men were men and lawyers could scriven a will, I tell ya. Not like these welps these days with their fancy typin’ machines. No sir”).

Parsing the language as the SCOV does will take up too much time and paper for the purposes of this blog.  Suffice to say that when drafting a will, “as nearly equal as possible,” as opposed to “equal shares” and “share and share alike,” can make all the difference in the world when it comes to breaking up the old farm.  Ultimately, the court finds that EBED has the power under the will to partition the property.

But wait!

The trial court had determined that title to realty (or “real property:” generally, land and improvement thereto) passes immediately upon death to the legal inheritors of said realty, and therefore, cannot be partitioned and/or devised by EBED.

Fortunately, we have statutes that cover just this issue.  The SCOV goes to “the books,” and finds that the trial court’s analysis is “narrowly” correct, but its decision is wrong.
The SCOV finds that to apply the trial court analysis would thwart the bulk of both statute as embodied in Title 14, and the power of the probate court to authorize fiduciaries to sell real property “where beneficial and authorized by the will . . .”

So, on balance, the SCOV finds that an executor can, in fact, divvy up the old hill farm, and sell some of it, under this particular will. However, the SCOV concludes by stating that power is not unlimited, and remands the case to the trial and probate courts for further proceedings.


So it’s another round for the children and their attorneys.  The good news is that the children who have now sacrificed the past eight years of their life to this case will really never forget mom and what she left them.  Now, that’s a legacy!

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