Sean C. Clark v. Beth M. Clark , 2019 ME 158 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 158
Docket: Han-18-471
Argued: October 10, 2019
Decided: November 26, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
SEAN C. CLARK et al.
v.
BETH M. CLARK
MEAD, J.
[¶1] Sean C. Clark appeals from a judgment of the Superior Court
(Hancock County, R. Murray, J.) denying his motion for summary judgment and
granting Beth M. Clark’s cross-motion for summary judgment. Sean’s complaint
sought a declaratory judgment that he and Jason A. Clark are each vested with
a one-eighth share of certain real properties as tenants in common with Beth.
On this record, we affirm the judgment of the Superior Court that Beth has
exclusive ownership of the properties, having acquired her brother Kevin’s
undivided half interest through a joint tenancy right of survivorship.
I. BACKGROUND
[¶2] We review a ruling on cross-motions for summary judgment
“de novo, reviewing the trial court’s decision for errors of law and considering
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the evidence in the light most favorable to the party against whom the judgment
has been granted in order to determine whether there is a genuine issue of
material fact.” Scott v. Fall Line Condo. Ass’n, 2019 ME 50, ¶ 5, 206 A.3d 307.
This case presents no genuine dispute of material fact. “We draw the facts from
the parties’ statements of material facts, all of which are supported by
references to the evidentiary record.” Lee v. Town of Denmark, 2019 ME 54, ¶ 2,
206 A.3d 907.
[¶3] On December 28, 2009, Ruth M. Clark died testate. Ruth had three
children: Beth M. Clark, Kevin J. Clark, and Bruce A. Clark. Bruce predeceased
Ruth, while Beth and Kevin survived Ruth. Ruth’s heirs at law were Beth
(defendant-appellee); Kevin; and two grandsons, Sean C. Clark
(plaintiff-appellant) and Jason A. Clark (party-in-interest), who are Bruce’s
children.
[¶4] Ruth’s will devised her estate, which included two properties in
Sorrento and Great Pond (the properties), to Beth and Kevin to “equally share
and share alike.” Ruth’s will was admitted to informal probate, and Beth was
appointed personal representative of the estate on January 11, 2010. Beth and
Kevin met with an attorney, who discussed with them the differences between
taking title as tenants in common or as joint tenants, and who testified in his
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deposition that Beth and Kevin expressed their clear desire for a joint tenancy.
Acting as personal representative, Beth executed deeds of distribution to the
properties to herself and Kevin as “joint tenants” on June 30, 2010. Neither
Beth nor Kevin challenged the joint tenancy nature of the deeds of distribution
thereafter.1 On January 10, 2017, Kevin died intestate, unmarried, and without
issue, leaving Beth, Sean, and Jason as his sole heirs.
[¶5] On April 4, 2017, Sean and Jason2 filed a complaint, later amended,
in the Superior Court seeking a declaratory judgment that they were each
entitled to a one-eighth interest in the properties as tenants in common with
Beth. See 14 M.R.S. § 5954 (2018). The parties filed cross-motions for summary
judgment pursuant to M.R. Civ. P. 56, and the court granted a summary
judgment to Beth on November 1, 2018.
[¶6] Sean appeals, arguing that (1) Beth and Kevin took title as tenants
in common immediately upon Ruth’s death; (2) as Ruth’s personal
representative, Beth lacked the authority to unilaterally change the devise from
a tenancy in common to a joint tenancy; and (3) Beth and Kevin could not alter
1 Sean denied this fact in his response to Beth’s opposing and additional statements of material
fact. However, his denial spoke to a different issue—whether Sean and Jason had standing to
challenge the distribution before Kevin’s death—and failed to provide a record citation. As such, the
fact was not properly controverted and is deemed admitted. See M.R. Civ. P. 56(h)(4).
2 Prior to this appeal, Jason removed himself as co-plaintiff and became a party-in-interest. See
M.R. Civ. P. 21.
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the property interest from a tenancy in common to a joint tenancy without a
written agreement pursuant to 18-A M.R.S. § 3-912 (2018).3
II. DISCUSSION
A. Nature of Title and the Power of the Personal Representative
[¶7] We interpret the Probate Code de novo as a question of law. Estate
of Cabatit v. Canders, 2014 ME 133, ¶ 11, 105 A.3d 439. In our review, “we first
look to the plain meaning of the statute, interpreting its language to avoid
absurd, illogical, or inconsistent results.” Estate of Reed, 2016 ME 90, ¶ 6,
142 A.3d 578 (quotation marks omitted).
[¶8] The plain language and intent of Maine’s Probate Code, which is
modeled on the Uniform Probate Code (UPC), support Beth’s theory of the
case—that vesting of title upon the decedent’s death is conditioned upon
administration of the estate.4 Title 18-A M.R.S. § 3-101 (2018) provides,
Upon the death of a person, his real and personal property devolves
to the persons to whom it is devised by his last will . . . , subject . . .
to administration.
3 The Maine Probate Code was recently repealed and recodified. All Probate Code citations in this
opinion are to the repealed 2018 version. The relevant text is unchanged in the new codification. See
P.L. 2017, ch. 402, § A-2 (codified at 18-C M.R.S. §§ 3-101, 3-711, 3-715, 3-907, 3-912 (2018));
P.L. 2019, ch. 417, § A-103 (establishing effective date of September 1, 2019).
4 To the extent that any latent ambiguity may linger regarding the language and intent of the UPC,
the Maine Probate Law Revision Commission, Report of the Commission’s Study and
Recommendations Concerning Maine Probate Law (Oct. 1978), and leading treatises offer solid
support for our conclusions.
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(Emphasis added.) Citing a string of cases that predate Maine’s enactment of
the UPC, Sean argues that section 3-101 merely codifies the common law rule
that title to real property passes at the moment of the decedent’s death.
However, as the Superior Court observed, Sean’s interpretation “discounts the
impact the phrase ‘subject . . . to administration’ has on the devolution” of
property. To aid its interpretation, the court drew from the rationale expressed
in a recent North Dakota Supreme Court decision, which we now adopt in part.
Estate of Hogen, 863 N.W.2d 876 (N.D. 2015).
[¶9] In Estate of Hogen, Arline Hogen’s will devised her property equally
to her two surviving sons, Steven and Rodney Hogen. Id. at 881. Steven, acting
as the personal representative of the estate, sought a retainer against Rodney,
claiming that Rodney owed payments to Arline before her death and that her
estate was thus authorized to offset the indebtedness. Id. Among other things,
Rodney argued that his share of Arline’s property “vested in him immediately
upon her death” under North Dakota’s version of UPC section 3-101. Id. at 884.
See N.D. Cent. Code § 30.1-12-01 (2015). The North Dakota Supreme Court
rejected Rodney’s argument, concluding that under the UPC, title vests subject
to administration, rather than vesting immediately upon the decedent’s death.
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See Estate of Hogen, 863 N.W.2d at 884-89. In ruling, the court conducted an
extensive analysis of a number of UPC provisions. Id.
[¶10] The UPC signaled a shift that broadened the powers of the personal
representative. See Maine Probate Law Revision Commission, Report of the
Commission’s Study and Recommendations Concerning Maine Probate Law
242, 259, 267-68 (Oct. 1978). Section 3-711 of Maine’s Probate Code grants a
personal representative
the same power over the title to property of the estate that an
absolute owner would have, in trust however, for the benefit of the
creditors and others interested in the estate. This power may be
exercised without notice, hearing or order of court, except as
limited by this section.
18-A M.R.S. § 3-711 (2018) (emphasis added). Sean is correct that a personal
representative holds “power” over the title rather than title itself. However, the
UPC’s drafters explained that this distinction “eases the succession of assets
which are not possessed by the personal representative. Thus, if the power is
unexercised prior to its termination, its lapse clears the title of devisees and
heirs.” U.P.C. § 3-711 cmt., included with 18-A M.R.S.A. § 3-711 (2012); see
Estate of Hogen, 863 N.W.2d at 885.
[¶11] As a leading treatise on the UPC has explained,
Since the [personal representative] has a “power over the title”
rather than “title[,”] no gap in title will result if the [personal
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representative] does not exercise his power during the
administration. The title of the heir or devisee, however, is “subject
to administration”; hence, it remains encumbered so long as the
estate is in administration or is subject to further administration.
Ass’n of Continuing Legal Educ. Adm’rs, Uniform Probate Code Practice Manual
318 (Richard V. Wellman ed., 2d ed. 1977); see Estate of Hogen, 863 N.W.2d at
885. As a Maine treatise confirms, the personal representative’s power over
title “permits the personal representative to sell or convey the property. If this
power is not exercised, title remains with the heirs or devisees to whom the
property devolved upon the death of the decedent, under Section 3-101.”
Hunt, Maine Probate Law § 3.711 at 173 (1999). Where, as here, the personal
representative exercises her administrative powers, passage of title is subject
to those powers.
[¶12] That said, a personal representative’s powers, though broad, are
not unbridled. The Code provides important safeguards to curb potential
abuses of power by the personal representative. As an example, section 3-711
characterizes the personal representative as a fiduciary, a trustee who must
treat property “in trust . . . for the benefit of the creditors and others interested
in the estate.” 18-A M.R.S. § 3-711. Further, the Probate Code provides a
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number of avenues for “interested persons”5 to challenge a personal
representative’s actions. See U.P.C. § 3-711 cmt., included with 18-A M.R.S.A.
§ 3-711 (2012) (highlighting UPC sections 3-501 (supervised administration),
3-605 (demand for bond), 3-607 (order restraining personal representative),
and 3-611 (removal of personal representative)). Relative to her duties as
personal representative of Ruth’s estate as provided by Ruth’s will, Beth owed
a duty to herself and Kevin as devisees, but neither she nor Kevin challenged
the deeds of distribution. Therefore, upon these facts, Beth was clearly
authorized to act in her capacity as personal representative and no breach of
any fiduciary duty has occurred.
[¶13] The deeds of distribution effectively conveyed the properties in
joint tenancy. If Beth had first conveyed the properties by way of deeds of
distribution to herself and Kevin as tenants in common and then she and Kevin
had jointly conveyed the properties to themselves as joint tenants, there would
be no question that Beth would now own the properties in full. Thus, the issue,
as posed by Sean, is whether the deeds of distribution that Beth (acting in her
5 Under the Code’s definition, interested persons include “heirs, devisees, children, spouses,
domestic partners, creditors, beneficiaries and any others having a property right in or claim against
a trust estate or the estate of a decedent.” 18-A M.R.S. § 1-201(20) (2018).
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capacity as personal representative) conveyed to herself and Kevin as joint
tenants effectively created a joint tenancy.
[¶14] Sean relies on language in section 3-907 to assert that the deeds of
distribution serve as mere evidence of title rather than as conveyances of title
itself. Section 3-907 provides,
If distribution in kind is made, the personal representative shall
execute an instrument or deed of distribution assigning,
transferring or releasing the assets to the distributee as evidence
of the distributee’s title to the property.
18-A M.R.S. § 3-907 (2018). But section 3-907 by its plain language does not
indicate that a deed of distribution only serves as evidence of title rather than
title itself. “The ‘release’ contemplated by [section 3-907] would be used as
evidence that the personal representative had determined that he would not
need to disturb the possession of an heir or devisee for purposes of
administration.” U.P.C. § 3-907 cmt., included with 18-A M.R.S.A. § 3-907
(2012). As the Superior Court acknowledged, “[t]he language of Section 3-907
is designed to cover instances where the instrument of distribution operates as
a transfer, as well as those in which its operation is more like a release.” See
U.P.C. § 3-907 cmt., included with 18-A M.R.S.A. § 3-907 (2012). Here, the
personal representative’s deeds of distribution operated as a transfer of title to
herself and Kevin as joint tenants.
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B. Section 3-912
[¶15] Section 3-912 of the Code reads in part,
Subject to the rights of creditors and taxing authorities competent
successors may agree among themselves to alter the interests,
shares, or amounts to which they are entitled under the will of the
decedent . . . in any way that they provide in a written contract
executed by all who are affected by its provisions. The personal
representative shall abide by the terms of the agreement subject to
his obligation to administer the estate . . . .
18-A M.R.S. § 3-912 (emphasis added). As we have previously determined,
“[o]n its face, section 3-912 sets forth the requirements for a contract among
successors to be binding on a personal representative.” See Estate of Snow,
2014 ME 105, ¶ 16, 99 A.3d 278 (citation omitted); see Maine Probate Law
Revision Commission, Report of the Commission’s Study and
Recommendations Concerning Maine Probate Law 388, 390 (Oct. 1978)
(“Indeed, the focus of UPC 3-912 is on the effect of such agreements on the
personal representative.”). See also Hunt, Maine Probate Law § 3.912 at 214-15
(“The purpose is to assure that a personal representative, in seeking to fulfill
the obligation to administer an estate and make distribution as provided in the
will or the laws of intestate succession, will not insist on making distribution in
a fashion contrary to the wishes of the distributees.”). In sum, contrary to
Sean’s contention, section 3-912 did not require Beth and Kevin to execute a
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written agreement to receive their shares in joint tenancy. Rather, the section
permits successors who are not personal representatives to use a writing to
bind the personal representative.
[¶16] The Superior Court correctly concluded that section 3-912 did not
prevent the distributions Beth made as personal representative. The court
found that Beth and Kevin, the only successors to the will, did not enter into a
written agreement to bind Beth as personal representative. It is clear from the
record, however, that Beth and Kevin, after speaking with an attorney, mutually
chose to take ownership as joint tenants. Section 3-912 is of no consequence
here because the parties to the agreement were the personal representative
herself and Kevin, and both agreed to take title to the properties as joint
tenants. No written agreement was necessary to compel Beth to make the
transfer. The Superior Court correctly concluded that Beth was entitled to
summary judgment.
The entry is:
Judgment affirmed.
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Barry K. Mills, Esq. (orally), Hale & Hamlin, LLC, Ellsworth, for appellant Sean
C. Clark
Allison A. Economy, Esq., and Jonathan P. Hunter, Esq. (orally), Rudman
Winchell, Bangor, for appellee Beth M. Clark
Hancock County Superior Court docket number RE-2017-13
FOR CLERK REFERENCE ONLY