In re Estate of Balkam

• Decision Date: 18 October 2013
• Docket Number: No. 12–192.,12–192.
• Citation: 2013 VT 95,86 A.3d 1026
• Parties: In re ESTATE OF Doris H. FITZSIMMONS (Joanne Fitzsimmons Balkam, Executor, Appellant).
• Court: Vermont Supreme Court

86 A.3d 1026

2013 VT 95

In re ESTATE OF Doris H. FITZSIMMONS (Joanne Fitzsimmons Balkam, Executor, Appellant).

No. 12–192.

Supreme Court of Vermont.

Oct. 18, 2013.

Richard Linton Brock and Thomas Dawson Brock of Brock & Brock, PLLC, Montpelier, for Appellant.

James W. Swift and Cara L. Cookson of Langrock Sperry & Wool, LLP, Burlington, for Appellees.

Present: REIBER, C.J., DOOLEY, SKOGLUND and BURGESS, JJ., and ZONAY, Supr. J., Specially Assigned.

DOOLEY, J.

¶ 1. Appellant Joanne Fitzsimmons Balkam appeals the superior court's partial summary judgment decision which reversed a probate court decision that had granted her permission, as executor of her mother's estate, to physically partition and sell parts of a real estate property to make a division between the heirs of her mother's residual estate. The appellees are two of her brothers, Dennis and James Fitzsimmons. We reverse and remand.

¶ 2. The facts related to this appeal are simple enough. Doris Fitzsimmons, a resident of New York, died testate on August 9, 2006. The will named Joanne Fitzsimmons Balkam as executor, and was probated in New York. In addition to the property that she owned in New York, decedent owned real property in Wells, Vermont, consisting of a farmhouse on a property of roughly 300 acres—the exact acreage is disputed, as discussed below. In March 2007, executor submitted the will to the Fair Haven District Probate Court—which no longer exists, but has been subsumed into the probate division of the superior court—for proceedings under an ancillary estate. The probate court admitted the will for proceedings and designated Joanne Fitzsimmons Balkam executor in Vermont as well.

¶ 3. Under the will, the Wells property is not devised specifically to any person or persons, but is instead part of the residual estate. The residuary clause of the will provides:

I give ... the residue ... of my estate ... to my beloved children, JAMES J. FITZSIMMONS JR., DENNIS M. FITZSIMMONS, KEVIN R. FITZSIMMONS, and JOANNE FITSZIMMONS [sic] BALKAM ... in as nearly equal shares as possible, the division thereof to be determined by any executors acting hereunder, if the interested parties cannot agree ....

Regarding the powers of executor, the will provides: “I hereby grant to any executors at any time acting hereunder, full power and authority to retain, manage, and administer my estate as freely as I could handle my own affairs if living.” It also explicitly gives the executor a power of sale:

For any purpose, to sell for cash or on credit, exchange, lease for any term of years (including a term greater than authorized by statutory law), mortgage or extend or modify the terms of mortgages on any real or personal property or interest or estate therein at any time forming a part of my estate, and to execute such instruments as may be necessary or advisable.

Nowhere does the will mention any specific power to partition, although executor argues that the explicit power of “division” provides that power. It does, additionally, grant executor the power “[t]o make distribution in kind or in cash, or partly in each, among the persons entitled to share in my estate.”

¶ 4. By letter of August 19, 2009, executor proposed to the other heirs that she would take 110 acres of property, Kevin Fitzsimmons would take another 36–acre parcel, and all four beneficiaries would either sell the remaining property and divide the proceeds or take it by decree, with executor and Kevin taking smaller shares to equalize the value of each sibling's distribution. On June 29, 2010, Dennis and James filed a Motion for Decree of Distribution, proposing instead that all four named beneficiaries be made tenants in common. Executor opposed this motion, citing the need to complete a survey of the property and emphasizing her position that the will gave her the power to physically divide the property. Dennis and James then filed an Objection to Accounting on August 13, 2010, in which they charged executor with waste and objected to her calculation of attorney's fees and inclusion of maintenance fees in an accounting that she had submitted. In a supplemental memorandum filed September 10, 2010, executor presented a new partition plan in which she proposed to divide the property into three parcels, sell the parcel including the house and split the proceeds, and divide the rest of the property equally, giving one specified parcel to her and Kevin and the other to Dennis and James.

¶ 5. The probate court issued an order on November 18, 2010 allowing executor to proceed with her partition plan but requiring that Dennis and James have the first choice between the subdivided parcels without the house. It also denied the waste claim and the objection to the accounting. On November 29, 2010, Dennis and James filed a motion for reconsideration/clarification, but before the court issued any response, executor filed a notice of appeal to the superior court. On January 6, 2011, the probate court issued a clarification of the court order, and on January 14, 2011, Dennis and James filed their own notice of appeal to the superior court.

¶ 6. The issues raised in executor's appeal were whether the probate court had the power to allow the heirs to choose which property they received and whether the executor had the power to contract for a survey. In their statement of questions, Dennis and James raised five issues. The first two contested the probate court's ruling on their claim of waste and their claim that the accounting was flawed. The last three addressed the power of the executor and the probate court with respect to the distribution of the property: (1) whether executor had the power to subdivide the estate; (2) whether executor's proposed division met the requirement of the will that the estate be distributed into “as nearly equal shares as possible”; and (3) whether the probate court's division was proper under its power to partition in 14 V.S.A. § 1729.

¶ 7. Appellees filed a motion for partial summary judgment and renewed their request for a decree distributing the property to the four beneficiaries as tenants in common. In addition to her response to this motion, executor also later filed a motion for license to sell real estate. In a decision filed May 2, 2012, the superior court granted appellees' motion for partial summary judgment and denied the motion for the license to sell real estate. It disagreed with the probate court and found that because legal title to real property passes to beneficiaries immediately upon the death of a testator, the executor had “limited ability to affect the beneficiaries' ownership of the real property” and could not partition the property. It referred the waste and accounting issues back to the probate court because the probate court had not addressed them—an action which all parties agree on appeal was a mistake because the probate court had addressed those issues. Whether or not by mistake, however, the trial court did not take up all the issues before it. On May 11, 2012, Dennis and James filed a motion to reconsider the remand to the probate court, asking the superior court to deal with the remaining issues. Executor did not respond to that motion, but instead filed a notice of appeal to this Court on May 31, 2012, requesting that we reverse the trial court's summary judgment order regarding executor's power to partition the property.

¶ 8. The first question with which we must grapple is whether this case is properly before us. After the notice of appeal was filed, appellees moved to dismiss because they contended that the decision below was not a final judgment in that it did not resolve all the issues in the case. We decided to consider this motion along with the merits.

¶ 9. We conclude that appellees are correct that the decision on partial summary judgment was not a final judgment, because it does not “make [ ] a final disposition of the subject matter before the Court.” Woodard v. Porter Hosp., Inc., 125 Vt. 264, 265, 214 A.2d 67, 69 (1965). No particular analysis is needed to make this decision—the order states in clear language that it is for partial summary judgment and that “this ruling addresses only three of the five questions in [appellee]'s Statement of Questions.” Therefore, it is not ripe for appeal. See Hospitality Inns v. S. Burlington R.I., 149 Vt. 653, 656, 547 A.2d 1355, 1358 (1988) (“[A] final judgment is a prerequisite to appellate jurisdiction unless the narrow circumstances authorizing an interlocutory appeal are present.”).

¶ 10. However, we agree with executor that the circumstances of the case are such that we should decide the merits under Vermont Rule of Appellate Procedure 2. We have previously described the situations in which we will not apply the rule that appeals of interlocutory orders may be made only by permission by the trial court: “[W]here dismissal of the appeal would most likely result in another appeal after final judgment, the merits of the questions of law were fully briefed and argued before the Court, and the Court has spent valuable time preparing for the case.” Huddleston v. Univ. of Vt., 168 Vt. 249, 251, 719 A.2d 415, 417 (1998).

¶ 11. Here, these factors are met. The issue of an executor's power to divide property is generally one of first impression in this Court and is central to this case. The unresolved issues are separate and less important. If we dismiss this appeal, the central issue will almost certainly return on appeal of the final judgment. The question was extensively briefed and argued on both sides, and this Court invested time in preparing for the case. Given these circumstances, we deny appellees' motion to dismiss.¹

¶ 12. Before addressing the main legal issues of the case, however, we must first consider the executor's argument that the trial court incorrectly found that “[t]he facts material to this motion are not in dispute,” and that summary judgment was improperly...