IN RE ESTATE OF HUNT

• Citation: 990 A.2d 544,2010 ME 23
• Decision Date: 18 March 2010
• Docket Number: Docket: Lin-09-351.
• Parties: ESTATE OF Eldon C. HUNT.
• Court: Supreme Judicial Court of Maine (US)

990 A.2d 544

2010 ME 23

ESTATE OF Eldon C. HUNT.

Docket: Lin-09-351.

Supreme Judicial Court of Maine.

Argued: February 10, 2010.

Decided: March 18, 2010.

James A. Hopkinson, Esq. (orally), Hopkinson & Abbondanza, Portland, ME, for Forrest C. Hunt.

Stephen E.F. Langsdorf, Esq. (orally)^*, Jonathan G. Mermin, Esq., Preti, Flaherty, Beliveau & Pachios, LLP, Portland, ME, for Norman C. Hunt and Robert Hunt.

Jerrol A. Crouter, Esq., Drummond Woodsum, Portland, ME, for the Personal Representative, Bangor Savings Bank.

Frank K.N. Chowdry, Esq., Jensen Baird Gardner & Henry, Portland, ME, for Wilder A. Hunt.

Hylie A. West, Esq., Damariscotta, ME, for Eldon C. Hunt, Jr.

Joel F. Bowie, Esq., Howard & Bowie, Damariscotta, ME, for the Estate of Raymond E. Hunt.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

LEVY, J.

¶ 1 Forrest C. Hunt appeals from a judgment of the Lincoln County Probate Court (Berry, J.) construing a devise of property in Newcastle contained in his father's will and reforming the devise to conform to local zoning ordinances. On appeal, Forrest argues that (1) because the devise violated local zoning ordinances, it failed as a matter of law, thereby necessitating its distribution as part of the will's residuary provision pursuant to 18-A M.R.S. § 2-606(a) (2009); and (2) even if the devise did not fail, the Probate Court exceeded its authority to reform the will. We affirm the judgment.

I. BACKGROUND

¶ 2 The record, taken in the light most favorable to support the court's judgment, is as follows. See Batchelder v. Realty Res. Hospitality, LLC, 2007 ME 17, ¶ 3, 914 A.2d 1116, 1118.

¶ 3 Eldon Hunt was a widower with five sons: Forrest, Norman, Wilder, Eldon Jr., and Raymond. In 2005, Eldon completed a will. On February 1, 2007, following his death, the will was submitted for informal probate. In the will, Eldon divided and distributed a large parcel of property located in Newcastle. He devised separate parcels with cottages to Wilder, Raymond, Eldon Jr., and Norman (the brothers) and devised the remainder of the property as a "Common Area" to those four sons and his grandson Robert. Eldon's will indicated that he considered his son Forrest "to have received his specific distribution during the lifetime" and therefore did not devise any of the Newcastle property to Forrest. All parties agreed that the individual parcels resulting from the division of this real estate, as provided in the will, failed to conform to local zoning ordinance requirements of minimum lot size and frontage.

¶ 4 In August 2007, Wilder filed a petition for order of complete settlement pursuant to 18-A M.R.S. § 3-1002 (2009). Wilder sought a construction of the will that permitted distribution of the Newcastle real estate in accordance with a previous plan of distribution prepared in 2002, rather than the plan of distribution that was made part of the will. Wilder, Raymond,¹ and Eldon Jr. all asserted that Wilder's proposed construction was necessary in order to avoid violating the shoreline standards of Newcastle's land use ordinance. Forrest objected, asserting that the devise failed because it violated local zoning ordinances. On this basis, he asserted that the real estate should pour-over to the revocable living trust established in the residuary provision of Eldon's will, to be distributed equally among all of Eldon's children. Norman argued that the proposed construction was unnecessary because the real estate was functionally divided at an earlier time when the lots complied with the existing ordinance, and therefore the lots were grandfathered and the devise was legal at the time that the will was written.

¶ 5 The court heard evidence on the petitions on March 25, 2009, including the testimony of John Wood, a surveyor appointed by the court as an expert witness pursuant to M.R. Evid. 706(a). Wood proposed a revised plan for dividing the property that would satisfy local zoning requirements. This revised plan changed the boundaries of the common area and the boundaries of the individually owned lots; the size of the individually owned lots was increased at the expense of the common area and the boundaries between the lots were also altered. All of the intended beneficiaries of the devise supported Wood's revised plan and the court adopted it, rejecting Forrest's argument that the devise had failed. This appeal followed pursuant to 18-A M.R.S. § 1-308 (2009).

II. DISCUSSION

¶ 6 Forrest contends that the will's devise of the Newcastle property failed pursuant to 18-A M.R.S. § 2-606(a), which states: "Except in cases of antilapse, if a devise other than a residuary devise fails for any reason, it becomes a part of the residue." He further argues that the Probate Court lacked authority to reform the devise in the will by partitioning the affected parcels.² The brothers argue that the devise did not fail and that the Probate Court is authorized to reform the devise to conform to zoning requirements pursuant to its equitable authority. Our review of the authority of the Probate Court and the construction of the Probate Code is de novo. See, e.g., Estate of Colburn, 2006 ME 125, ¶ 14, 909 A.2d 214, 218.

A. Devise Failure Pursuant to 18-A M.R.S. § 2-606(a)

¶ 7 Courts that have considered whether noncompliance with zoning ordinances affects the validity of an otherwise valid devise have concluded that it does not. See In re Estate of Hurt, 681 N.W.2d 591, 593-94 (Iowa 2004); In re Estate of Sayewich, 120 N.H. 237, 413 A.2d 581, 583 (1980); Metzdorf v. Rumson, 67 N.J.Super. 121, 170 A.2d 249, 252-53 (App.Div. 1961); Estate of Williams v. Williams, 357 Pa.Super. 476, 516 A.2d 359, 362 (1986). In In re Estate of Sayewich, the New Hampshire Supreme Court considered whether a devise of property failed because the property had not received municipal subdivision approval. The Court concluded that the devise did not fail, because subdivision regulations affect use, not alienability:

Subdivision regulations are not a means of controlling the alienability of land, but of promoting the orderly and planned growth of a municipality. To the extent that it promotes the health, safety, morals and general welfare of the community, the imposition of subdivision regulations is a proper exercise of the police power. Although these controls may restrict certain intervivos transfers of real property, their focus is on the use and development of land and not its alienability.

The focus of our laws relating to the testamentary disposition of property is on the passage of title in accordance with the intent of the decedent.... Furthermore, the passage of title to a devisee has no bearing on the use or development of that property. Devisees must still comply with local subdivision regulations if they wish to develop or transfer their property. Compliance with subdivision regulations is neither excused nor obviated by the division of property under the terms of a will.

In re Estate of Sayewich, 413 A.2d at 583 (citations omitted).

¶ 8 Zoning laws control the ways in which the owner may use the land, and not the owner's right of ownership. We see no justification for applying zoning laws so as to extinguish the owner's ability to transfer ownership of land upon the owner's death. In this case, if the Probate Court had not conformed the property to the applicable zoning requirements as the beneficiaries of the devise requested, but had instead ordered the parcels to pass to the beneficiaries as described in the will, the beneficiaries would have received title to their respective...