Akins v. Firstbank, N.A.

• Decision Date: 06 June 1980
• Parties: Marcia E. B. AKINS v. FIRSTBANK, N.A., and John D. Robinson.
• Court: Maine Supreme Court

Page 567

415 A.2d 567

Marcia E. B. AKINS v. FIRSTBANK, N.A., and John D. Robinson.

Supreme Judicial Court of Maine.

Argued January 10, 1980.

Decided June 6, 1980.

Michael J. LaTorre (orally), Portland, for plaintiff.

Verrill & Dana by Charles L. Cragin (orally), Portland, for Firstbank, N.A.

Skelton, Taintor & Abbott, P.A. by John B. Cole (orally), Lewiston, for John D. Robinson.

Before WERNICK, GODFREY, GLASSMAN, JJ., and DUFRESNE and DELAHANTY, A. R. JJ.

GODFREY, Justice.

This is an appeal from a decision of the Superior Court in an action based on fraud. The presiding justice dismissed the complaint under Rule 12(b) on the ground that plaintiff was, in effect, collaterally attacking a decision of the probate court from which she had not taken an appeal within a year pursuant to 4 M.R.S.A. § 403. The plaintiff filed a timely appeal to this Court. We sustain the appeal.

The plaintiff, Marcia Akins, was a beneficiary of the will of John H. Gilkey, who died in October, 1965. Under the terms of the will, the defendant Firstbank, then known as First National Bank of Farmington, was appointed executor of the estate and trustee of a testamentary trust established by the residuary clause. Akins is the sole life beneficiary of the trust.

Akins' complaint alleged that in January, 1966, while administering Gilkey's estate, Firstbank sold 212 shares of stock in itself, taken from the estate, to defendant John D. Robinson for $21,000; that Robinson was entertaining an offer at the time to become an officer of the bank and ten days later did in fact become an officer and director; that Akins was then legally incompetent under the laws of Florida; that neither she nor any guardian received notice either of the sale of stock or of a petition which the bank later filed in the probate court for approval of the sale, which petition for approval was filed on September 13, 1966, about nine months after the sale, and granted on September 20, 1966.

Akins became legally competent on March 9, 1971. Her complaint alleges that she did not receive actual notice of the sale or probate proceeding until June, 1976, although she has been receiving some annual disbursements of income from the trust since November 11, 1966, the first recorded date of a disbursement. She took no action until January 12, 1979, when she began the present suit. Her complaint alleged self-dealing, violation of bank regulations, fraud and nondisclosure.

The defendants' motions to dismiss under Rules 12(b)(1) and 12(b)(6), M.R.Civ.P., were granted on the ground that the probate court's approval of the sale was a decision which could not be collaterally attacked under Vanasse v. Labrecque, Me., 381 A.2d 269 (1977). The Superior Court also found that plaintiff's action could not be saved even if it were construed as an appeal, since an appeal from a probate court decision must be brought within twenty days of the decision, 4 M.R.S.A. § 401 (1979), or, if there is a "defect of notice" or other failure "without fault" to prosecute an appeal, within one year of the decision. 4 M.R.S.A. § 403 (1979). ¹ The Superior Court found those limits to be an absolute bar to Akins's action.

Relying on Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), Akins argues that the probate court's approval of the sale was void for lack of notice, and that due process requires that she be permitted to attack the transaction. The Superior Court resolved this issue against the plaintiff on the basis of Vanasse v. Labrecque, supra.

In Vanasse, a devisee of an interest in a decedent's land sued to set aside a sale of the land by the executrix pursuant to an order of the probate court granting the executrix a license to sell. Collateral attack on sales of real estate made pursuant to licenses issued by the probate court was specifically barred by 18 M.R.S.A. § 2252. This court did not decide whether Mullane, supra, applied to the probate court's order, holding instead that when innocent purchasers had acquired decedent's land in a licensed sale that was valid "to all appearances from the public records", the sale could not be collaterally attacked. 381 A.2d at 273.

The present case is distinguishable from Vanasse in that it does not involve real estate, with the result that judicial license to sell is not required by chapter 221 of title 18, ² and, as far as the pleadings show, innocent purchasers are not involved. Both defendants are alleged to be parties to a fraudulent transaction. For purposes of the motion to dismiss, the specific rationale of Vanasse is thus inapplicable.

Mullane held that "notice" by newspaper publication did not suffice as due process in respect to trust account beneficiaries whose names and addresses were known. Akins argues that the one-year limit for appeal of probate court rulings in cases of "defect of notice", 4 M.R.S.A. § 403, violates due process as defined in Mullane. However, we find it unnecessary to reach that constitutional question because we find that the defendants' motions to dismiss should have been denied under 14 M.R.S.A. § 859.

Section 859 of title 14 of the Revised Statutes provides as follows:

If a person, liable to any action mentioned, fraudulently conceals the cause...