Holbrook's Estate, In re

• Decision Date: 08 September 1980
• Docket Number: No. 447-79,447-79
• Citation: 138 Vt. 597,420 A.2d 110
• Court: Vermont Supreme Court
• Parties: In re ESTATE of Mary Jane HOLBROOK (Virginia MacDonald, Appellant).

Page 110

420 A.2d 110

138 Vt. 597

In re ESTATE of Mary Jane HOLBROOK (Virginia MacDonald, Appellant).

No. 447-79.

Supreme Court of Vermont.

Sept. 8, 1980.

Marguerite R. Shreve and Harry A. Black of Black & Plante, Inc., White River Junction, for appellant.

Swainbank, Morrissette, Neylon & Hickey, St. Johnsbury, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

LARROW, Justice.

Mary Jane Holbrook, a resident of Lemington, Vermont, died testate on December 9, 1976. Her will, unrevoked at her death, was executed in 1971. Apart from minor bequests not here involved, she divided her property between her two daughters, Virginia MacDonald, appellant here, and Jeannette Ellingwood. Mrs. Ellingwood and her husband, the named executor, had lived with the testatrix on her home farm, and Mrs. Ellingwood was willed all real estate, with a contingent bequest to her husband should the daughter predecease her mother. Mrs. MacDonald was willed "all of my money, including all bank deposits," with a bequest over in the event she should predecease the testatrix. Both daughters survived their mother.

At various times after executing her will, the testatrix purchased two certificates of deposit and opened two savings accounts, all in New Hampshire banks. These were purchased from proceeds of accounts in her sole name. Each was in the names of "Mrs. Mary Jane Holbrook or Jeannette Ellingwood or Virginia MacDonald, payable to either or survivor." At her death, they totalled $45,165.33. The two daughters thereafter withdrew all this money and divided it equally.

With these withdrawals, little cash remained in the estate (slightly over $700), so each sister advanced to the estate $1500 to meet expenses being incurred and to pay claims. Mrs. Ellingwood later advanced, for similar purposes and for estate tax payments, addition sums totalling $11,955.69. None of these sums were repaid. In the final account there remained only $305.27 cash for distribution, apart from $600 in specific legacies to grandchildren. Some personal property, including furniture and a ring disposed of by the will, also remained for decree. Federal and state estate taxes paid totalled $6,990.25.

The instant appeal follows the decree of distribution, an attempted interlocutory appeal having been dismissed for lack of final judgment. In re Estate of Holbrook, 136 Vt. 646, 399 A.2d 179 (1979) (mem.). By it, the appellant challenges denial of her petition to have the bank accounts and certificates of deposit included in the assets of the estate. She also appeals the allowance of expenses incurred by the administrator in connection with the real estate (taxes, insurance, repairs, and similar items) and failure to repay her $1500 advanced and to apportion expenses of administration.

Appellant makes two contentions with respect to the joint accounts and certificates of deposit. She claims that the matter is governed by the law of Vermont, which requires a showing of donative intent, absent here because the pertinent instruments were retained by her mother, with withdrawals prior to her death being made only for her own purposes. Appellee contends here, as below, that the law of New Hampshire governs the nature of the accounts and certificates, under which law they became the property of the two sisters upon the death of their mother. We agree with appellee's contention, and note that even under Vermont law, the same result would follow. See Tucker v. Merchants Bank, 135 Vt. 597, 599-600, 382 A.2d 212, 213-14 (1977) (conclusive presumption of gift created by 8 V.S.A. § 909).

Appellant's argument for the applicability of Vermont law is tenuous indeed. She cites merely the general language of In re Callahan's Estate, 115 Vt. 128, 52 A.2d 880 (1947), to the effect that legal title to a decedent's personal property passes to his executor. This is, of course, generally true, but it ignores the real point in issue. The first decision to be made is whether the accounts and deposits were, upon the death of the testatrix, her personal property. The language referred to is applicable only if, under the law of New Hampshire, title stayed in the decedent rather than passing to the other parties named. Appellant cites no other relevant authority for her contention that Vermont law governs this point, and the cases are clearly against her. The status of the New Hampshire accounts is governed by the law of that state. Bradley v. Bentley, 85 Vt. 412, 82 A. 669 (1912); Barstow v. Tetlow, 115 Me. 96, 98, 97 A. 829, 830 (1916). See generally Annot., 25 A.L.R.2d 1240 (1952) and 10 Am.Jur.2d Banks § 376.

The New Hampshire law, of which we may take judicial notice even in probate court, where V.R.C.P. 44.1 does not apply, In re Estate of Holden, 110 Vt. 60, 66, 1 A.2d 721, 723 (1938) (relying on what is now 12 V.S.A. § 1699); cf. In re Everett's Estate, 112 Vt. 252, 23 A.2d 202 (1941), seems quite clear. In statute, N.H.Rev.Stat.Ann. § 384:28, is, if anything, even more conclusive than our own 8 V.S.A. § 909. It provides that bank accounts such as these shall "become the property of and be paid in accordance with (their) terms to the survivor(s)." This is the statutory result regardless of the source of the funds, intent to vest a present interest, right to withdraw during lifetime, or delivery. The statute puts at rest the uncertain results attendant on litigation based on the theory of gifts, and specifically allows a donee to take any balance remaining in the account by precluding any investigation of the donor's intent after the donor's death. In re Wszolek Estate, 112 N.H. 310, 295 A.2d 444 (1972).

Because the applicable law here is that of New Hampshire, which directly refutes appellant's contention that the accounts and certificates in question should be assets of the probate estate, her claim of error because of their exclusion from inventory and resultant administration cannot be sustained.

Appellant's second claim of error is difficult to analyze as briefed. But it seems to seek return of her $1500 advance to the executor, and to have expenses connected with the real estate disallowed, because under our cases title thereto vested in her sister as devisee, subject only to the estate's lien for debts, expenses and the like. In re Callahan's Estate, supra.

Because the amount which appellant withdrew from...