Hilco Property Services, Inc. v. US

Decision Date03 June 1996
Docket NumberCivil No. 93-390.
Citation929 F. Supp. 526
PartiesHILCO PROPERTY SERVICES, INC., et al. v. UNITED STATES of America, et al.
CourtU.S. District Court — District of New Hampshire



Warren C. Nighswander, Sulloway & Hollis, Concord, NH, Arnold Rosenblatt, Cook, Little, Rosenblatt & Manson, Manchester, NH, for New England Acceptance Corp.

Duncan J. Farmer, Normandin, Cheney & O'Neil, Laconia, NH, Byron R. Prusky, Prusky Law Associates, P.C., Philadelphia, PA, for Prusky Law Associates, P.C.

Scott H. Harris, U.S. Department of Justice, Tax Division, Washington, DC, for United States.

Andrew W. Serell, Rath, Young & Pignatelli, PA, Concord, NH, Thomas W. Ostrander, Duane, Morris & Heckscher, Philadelphia, PA, for Thomas S. Boyer, William R. Boyer.

Andrew W. Serell, Rath, Young & Pignatelli, PA, Concord, NH, for Thomas S. Boyer, William R. Boyer, Paula Boyer Scheibe.


DiCLERICO, Chief Judge.

The plaintiff, New England Acceptance Corporation ("Hilco"), has brought the instant action under 28 U.S.C.A. § 2410(a)(1) (West 1978) against the United States ("the government") and against Thomas S. Boyer and William R. Boyer, as executors of the estate of their mother, Elizabeth H. Boyer, seeking to quiet title to an approximately ninety-acre tract of property located in Alton, New Hampshire. Hilco holds a first mortgage on the property.1 The government claims to hold a federal tax lien that is superior to Hilco's security interest. Thomas Boyer, William Boyer, and their sister, Paula Boyer Scheibe, ("the children") have intervened as defendants in their individual capacities. The Pennsylvania firm of Prusky Law Associates ("Prusky"), formerly tax counsel to the estate, has intervened as a plaintiff.

On April 29 and 30, and May 1 and 2, the court presided over the first of a two part bench trial to determine the controlling title questions of whether the property was conveyed by Elizabeth Boyer through an August 14, 1986, inter vivos gift of a warranty deed, as alleged by Hilco, or as a testamentary gift following her death on August 24, 1986, as alleged by the defendants. This initial opinion addresses the subsidiary questions of whether Elizabeth Boyer was competent when she purportedly executed the August 14, 1986, deed; whether the purported donee, a New Hampshire partnership consisting of certain members of the Boyer family known as Campfire Point Associates ("CPA"), was a legally cognizable entity capable of receiving title at the time the deed was executed; and, in light of the foregoing and other circumstances of the case, whether the August 14, 1986, conveyance operated to divest Elizabeth Boyer of the property prior to her death ten days later.


The instant action to quiet title had its genesis more than a decade ago as an unremarkable family dispute involving the future of a family-run summer camp located on a fairly valuable piece of property abutting Lake Winnipesaukee. However, beginning in 1986 the dissension quickly degenerated into a factual morass compounded by, inter alia, an ambitious plan to subdivide the property spearheaded by a son with no real estate experience and opposed by two siblings who lacked confidence in his vision; a deed executed by the camp matriarch while hospitalized with terminal cancer and while sedated by narcotic painkillers; a local bank once eager to finance the development and now eager to foreclose; a Philadelphia lawyer who counseled the family for decades and now faces a malpractice claim; a federal tax deficiency and an IRS lien of unknown priority; another lien filed by another lawyer facing a malpractice claim; and a brother-in-law that nobody liked. Based on the documentary evidence, trial testimony, and the factual stipulations submitted by the parties, the court makes the following findings of fact.

I. The Family Camp

Donald and Elizabeth Boyer worked at Camp Dewitt, an overnight camp for boys, since 1949 and, in 1962, purchased the camp along with at least one partner. Donald Boyer died in 1982. The following year, Elizabeth Boyer purchased for $430,000 the fifty percent interest held by George Heebner, the remaining partner in Camp Dewitt. Despite a personal fear of indebtedness, Elizabeth Boyer financed the Heebner buyout and, in early 1984, she became the sole owner of Camp Dewitt, Inc. Albert Ciardi, a Philadelphia attorney who had known and advised the elder Boyers for many years and who had settled Donald Boyer's estate, represented the family in the transaction.

Although each of the Boyer children was at some point involved with Camp Dewitt's operations, since 1980 only Tom maintained an active role. At various times he served as a counselor, assistant director and, following the death of his father, as co-director of the camp with his mother. On several occasions sister Paula accompanied Elizabeth during the road trip to New Hampshire prior to the start of camp in June and again at the close of the camp season in August. Paula's husband, Fred Scheibe, who worked for the camp for at least one summer during the 1970s, at times would join Paula for these visits. Eldest son William was uninterested in camp operations but periodically visited the property during the summer months with his wife for vacation and to see the family. William was unemployed for approximately nine months in 1985 and early 1986 and at some point sought full-time employment with Camp Dewitt. The request was denied, in part because William was unwilling to relocate to New Hampshire.

Based on the evidence, it is apparent that each of the Boyer children individually enjoyed a good relationship with their mother. However, the children did not get along with each other and some of the specifics of their acrimony are relevant to this lawsuit because they form the factual basis for the estate's current litigation position. Tom, who possessed an intensely emotional attachment to Camp Dewitt, resented William because William did not participate in camp activities but would frequent the property for leisurely vacations. Tom also had a "terrible" relationship with brother-in-law Fred, whom he considered to be difficult to get along with and "someone who knows more than anybody else about everything including operation of a summer camp." William disliked Fred for many of these same reasons and, as a result, both brothers were somewhat estranged from Paula, who tended to defer to Fred's judgment on family and other matters. Meanwhile, William, Paula, Fred, and Elizabeth each harbored serious doubts about Tom's ability to manage family matters other than those directly related to the operation of the camp. Finally, despite their differences, the children did not openly debate family matters because they did not want to upset Elizabeth and, in any event, did not spend much time in each other's company.

II. Property Disposition Dilemma

Elizabeth was troubled by her children's differences but was reluctant to discuss this and other family matters. However, she did clearly communicate two concerns. First, she wanted Camp DeWitt to continue to operate after her death if possible. Second, she wanted to divide her property equally among her children. These intentions were well known to the children and the latter intention is also apparent from a will which purportedly devised her estate equally among her children. Although not mutually exclusive, the realization of these twin goals was problematic because the camp comprised the bulk of Elizabeth's estate and, as such, an equal distribution of her property would necessarily require some sort of division of camp assets.

As early as 1983 and no later than 1985, each member of the family was aware of the logistical difficulties presented by any division of the property and, although rarely discussed among members of the family, Tom and Attorney Ciardi were actively exploring alternatives for what Tom described as "splitting things up without any risk to anyone but myself." Plaintiff's Ex. 34. An early plan called for the sale of a portion of the land to the Town of Alton for use as a municipal beach. As originally conceived, the plan involved a subdivision of the property and, potentially, either a liquidation of Camp Dewitt, Inc., or a redistribution of the company's shares. These facts were communicated by Ciardi to Elizabeth Boyer in January 1985, correspondence. Following a series of negotiations conducted by Ciardi with the town attorney the deal was rejected by the town government in late 1985. Tom was very familiar with the progress and specific details of the negotiations while his siblings were generally familiar with the pendency of the negotiations.

Elizabeth was disappointed and, according to Paula, angry that Alton did not buy the land. Tom, however, did not view this as a setback because he had been exploring alternative development opportunities since at least January 1985 and, in fact, during the summer of 1985 he suggested to Ciardi that the family terminate negotiations with the town because a municipal beach would diminish the value of the property. By this time Tom, with Ciardi's knowledge, had engaged the professional services of Chester ("Rick") Chellman, the principal of the engineering and land development firm, White Mountain Survey; Rodney Dyer, a Laconia, New Hampshire real estate attorney; and Bob Emmel, a real estate consultant who believed the property could be developed into the "snobbiest" subdivision on the lake. Plaintiff's Ex. 26. At some point during the late summer Ciardi and Tom also discussed the creation of a partnership for use during the subdivision approval process and, in a September 6, 1985, letter, Tom informed Ciardi that he had chosen the name Campfire Point Associates ("CPA") for what he termed "our partnership." Plaintiff's Ex. 30. Similar communications were exchanged between Tom and...

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6 cases
  • Contour Design Inc. v. Chance Mold Steel Co.
    • United States
    • U.S. District Court — District of New Hampshire
    • 12 Mayo 2011
    ...this issue), a partnership “must be voluntary and must be based on an agreement between the parties.” Hilco Prop. Servs., Inc. v. United States, 929 F.Supp. 526, 536 (D.N.H.1996) (citing N.H.Rev.Stat. Ann. § 304–A:5). While “the requisite intent to form a partnership may be inferred from th......
  • Field v. Hinahara (In re Maui Indus. Loan & Fin. Co.)
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    ...relied on a pre-UPA case from 1913. Thus, it has little precedential value for interpreting UPA.Hilco Prop. Servs., Inc. v. United States, 929 F. Supp. 526, 541-42 (D.N.H. 1996). A dispute about lien priority turned on which of two conveyances of land was valid: a 1984 inter vivos conveyanc......
  • Verres Fin. Corp. v. Sowa
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    • New Hampshire Superior Court
    • 28 Octubre 2013
    ...RSA 304-A:6, I. The association must be voluntary and must be based on an agreement between the parties. Hilco Prop. Servs., Inc. v. U.S., 929 F. Supp. 526, 536 (D.N.H. 1996). However, the agreement need not be reduced to writing, as the intent to form a partnership may be implied from the ......
  • Fadili v. Deutsche Bank Nat'l Trust Co.
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    • 1 Diciembre 2014
    ...of estoppel by deed, which prevents a party from denying representations made in a valid deed. See Hilco Prop. Servs., Inc. v. United States, 929 F.Supp. 526, 545 (D.N.H.1996) (“[A] party who has executed a deed, is thereby estopped from denying not only the deed itself, but every fact it r......
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1 books & journal articles
  • Contracting Out of Partnership.
    • United States
    • The Journal of Corporation Law Vol. 47 No. 3, March 2022
    • 22 Marzo 2022
    ...& MOLL, supra note 14, at 34; infra notes 29-31 and accompanying text. (29.) See, e.g., Hilco Prop. Servs., Inc. v. United States, 929 F. Supp. 526, 536-37 (D.N.H. 1996) ("The conduct of the parties and the circumstances surrounding their relationship and transactions control the factua......

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