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Estate of Lord
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision:	2002 ME 71
Docket:		Yor-01-362
Argued:		February 7, 2002
Decided:		April 24, 2002

Panel:		SAUFLEY, C.J., and RUDMAN, ALEXANDER, and CALKINS, JJ.




ESTATE OF FLORENCE N. LORD

CALKINS, J.

	[¶1]  Nancy N. Dreher and Emily N. Haggerty appeal from the judgment
of the York County Probate Court (Nadeau, J.) construing the will of Florence
N. Lord.  Dreher and Haggerty contend that the court erred by finding the will
ambiguous and admitting extrinsic evidence to ascertain Lord's intent.  They
further allege error in the court's construction of language in the will which
results in the distribution of the residue of Lord's estate to sixteen named
beneficiaries rather than to Lord's heirs by intestacy.  We affirm the judgment
of the Probate Court.
I. THE PARTIES AND THE WILL
	[¶2]  Florence N. Lord died on March 23, 1998.  Her husband's death was
a month earlier, and their only child Anne died in 1979.  Dreher and Haggerty
are the daughters of Lord's only sibling.  
	[¶3]  Lord left a will dated June 24, 1997, drafted by her attorney who
had known the Lords for a number of years.  Lord's nephew, John B. Nichols,
the brother of Dreher and Haggerty, is the personal representative of the estate. 
Nichols, Dreher, and Haggerty filed the petition for construction of Lord's will
that began this litigation, but Nichols is not a party to the appeal.  The
petition requested the court to determine whether subpart F of Article Fifth,
which refers to a "trust," fails because there is no trust and whether, therefore,
the assets referred to in subpart F pass by intestacy.  The petition also asked
whether Lord's real estate in York passes by intestacy because the will does not
expressly dispose of it.  The petition contained other requests, but they were
resolved by settlement.  The appellees, who responded to the petition, are
thirteen of the sixteen beneficiaries named in Article Fifth of the will.
	[¶4]  The dispute is focused primarily on Article Fifth of the will.  The
first three articles dispose of certain furniture, personal items, certificates of
deposit, and Massachusetts real estate to relatives and named charities. 
Article Third provides a life estate to Lord's husband in real estate in York if he
survives her, but there is no explicit provision for the York property if he does
not survive her and no provision for disposition of the property after
termination of the life estate.  Article Fourth establishes a family trust which
is to terminate upon the death of Lord's husband.  Upon termination, the
principal of the trust, after gifts to charities, is to be divided into fourteen
equal shares to be paid to sixteen named individuals including Nichols,
Dreher, and Haggerty.{1}  The other named beneficiaries are the nieces and
nephews of Lord's husband and close family friends and their children.
	[¶5]  Article Fifth is entitled "Alternative Devise," and purports to dispose
of Lord's estate if her husband predeceases her.  Portions of Article Fifth are
inconsistent with portions of the first three articles, but the parties reached a
settlement concerning several of those inconsistencies.  Subpart F of Article
Fifth states: "The entire remainder of the Trust shall be divided into fourteen
(14) equal shares and my Trustee shall pay over one (1) equal one-fourteenth
(1/14th) share, free of all trust, to the following: . . . ."  Listed thereafter are
the same sixteen individuals listed in Article Fourth.  This quoted language
from subpart F is precisely the same language that appears in Article Fourth to
distribute the assets of the trust upon Lord's husband's death.
	[¶6]  The parties agree that no trust exists.  No trust was established by
Lord's will except the trust referred to in Article Fourth, which never came into
being because Lord's husband predeceased her.  Thirteen of the named
beneficiaries claim that the words "trust" and "trustee" in Article Fifth were
inadvertent and that Lord intended to use the words "estate" and "personal
representative" instead.  Dreher and Haggerty contend that because there is no
trust, the residue of Lord's estate, including the York real estate, must pass to
the heirs by intestacy.  If they are correct, it means that Nichols, Dreher, and
Haggerty would receive all of the residue of the estate, including the York real
estate, and the thirteen named beneficiaries would receive nothing.  If Dreher
and Haggerty do not prevail, they will each receive one-fourteenth of the
residue.
	[¶7]  The Probate Court heard testimony from Nichols, Dreher, Haggerty,
and several of the other named beneficiaries.  The court also heard testimony
from the attorney who drafted the will and his secretary.  It reviewed numerous
documents that were admitted into evidence including the previous wills and
codicils executed by Lord, as well as the wills of Lord's husband and daughter.  
	[¶8]  The Probate Court concluded that Lord intended that Article Fifth
serve as a residuary clause.  It found that Lord and her husband had close and
affectionate relationships with the named beneficiaries in subpart F and that
Lord's daughter Anne regarded her cousins on both sides of the family as
brothers and sisters.  The distribution of assets to the named beneficiaries was
consistent with Lord's previous wills as well as her husband's and daughter's
wills.  The court stated that Lord and her husband "were highly motivated to
mirror their late daughter, Anne's, own testamentary wishes regarding her
'brothers and sisters' when [they] prepared and executed their own estate
plans."  That Lord intended her York home to be included in the distribution in
Article Fifth was evident to the court because after fifteen years of estate
planning, it is not likely that she would have left a significant asset
undistributed.{2}  Furthermore, the totality of circumstances, including the fact
that without the York real estate there would be no assets to satisfy these
devises, demonstrated to the court that Lord intended the York property to be
included in Article Fifth.  The court found that there is no trust to which
Article Fifth could refer, and the use of the words "trust" and "trustee" was
explained by the method of document preparation in the office of Lord's
attorney. 
	[¶9]  The court's order provides that the residue of Lord's estate,
including her real estate in York, passes pursuant to Article Fifth, subpart F,
"as though the word 'estate' was substituted for the word 'trust' and as though
the word 'personal representative' was substituted for the word 'trustee.'"  The
order also calls for the attorney fees for both the prosecution of and opposition
to the petition to be paid by the estate.
II. DISCUSSION
	[¶10]  When a court does not utilize extrinsic evidence to determine the
existence of an ambiguity in a will, we review the determination de novo.  Lord
v. Soc'y for the Pres. of New England Antiquities, Inc., 639 A.2d 623, 624 (Me.
1994).  When a court takes extrinsic evidence and finds a latent ambiguity we
review the factual findings for clear error and review de novo the application of
law to the facts.  See Estate of Plummer, 666 A.2d 116, 118 (Me. 1995).
	[¶11]  Dreher and Haggerty's primary argument is that the court erred in
admitting extrinsic evidence to clarify an ambiguity.  Subpart F refers to a
trust.  Dreher and Haggerty stated in their petition the extrinsic fact that no
trust existed at the time of Lord's death, and none was created by her will. 
Although they argue that the terms "trust" and "trustee" as used in subpart F
are not ambiguous terms, they do not acknowledge that the use of these terms,
in light of the extrinsic fact of the nonexistence of a trust, created an
ambiguity.  The reference to a trust in subpart F, combined with the fact of the
nonexistence of a trust, viewed in the context of the entire will, renders
subpart F susceptible to more than one interpretation.  It possibly means that
Lord intended to create a trust at a later date but did not; it could mean that
she was mistaken about the existence of a trust; or it could be an inadvertent
use of the term.  Subpart F is ambiguous.
	[¶12]  Other than their general objection to any extrinsic evidence,
Dreher and Haggerty do not specifically object to evidence concerning the
Lords' close relationships with family and others.  The court did not err by
admitting extrinsic evidence of the familial and other relationships between the
named beneficiaries and Lord, her husband and daughter.  See Estate of
Utterback, 521 A.2d 1184, 1187 (Me. 1987) (stating that evidence of testator's
relationships with family members is admissible to resolve ambiguity). 
Likewise, Dreher and Haggerty do not specifically object to evidence of Lord's
previous wills or her husband's and Anne's wills.  These documents helped
explain circumstances known to Lord, and they further demonstrated the
familial relationships.  See id.  The court did not err in admitting this extrinsic
evidence.
	[¶13]  Over the objection of Dreher and Haggerty the court allowed Lord's
attorney, the scrivener of the will, and his secretary, to testify.   Essentially
their testimony was that through utilization of the "cut and paste" feature of
their word processing computer program, provisions of Article Fourth, which
created a trust, were copied into subpart F of Article Fifth.  The attorney
admitted his carelessness in drafting the will.  
	[¶14]  Testimony by a scrivener concerning oral declarations of the intent
of the testator is inadmissible.  Utterback, 521 A.2d at 1188.  As the cases
make clear, the danger in such evidence is its inherent unreliability.  Id.; Lord,
639 A.2d at 624 n.5.  The court was well aware of the prohibition and several
times stated that expressions of Lord's intent were not admissible and that
only evidence of facts and circumstances at the time of the execution of the
will would be allowed.  Neither the attorney nor his secretary testified about
any oral declarations or expressions by Lord concerning her intent.  They
testified about facts and circumstances in the lawyer's office.  Their testimony
was not inherently unreliable as are statements of a testator's oral
declarations.  The court did not err in admitting the testimony.
	[¶15]  The court characterized the lawyer's testimony as providing an
explanation of the "usual course of preparing estate planning documents" in
his office.  From the court's findings it is apparent that the import of the
attorney's testimony of carelessness in drafting was only as a corroborative
explanation as to how the term "trust" came to be in subpart F.{3}  The primary
facts that the court relied upon in its determination that Lord did not intend
that the residue of her estate be placed in a trust were: (1) the nonexistence of
any trust; (2) the close ties that the family had with the listed beneficiaries
indicating an intent to leave something to them; and (3) Lord's prior wills, as
well as her husband's and Anne's wills, left the residue of their estates to
basically the same beneficiaries, indicating a consistency of purpose of the
three Lords.
	[¶16]  Supporting the court's construction of subpart F in reading "trust"
to mean "estate" is the presumption against intestacy.  See Swan v. Swan, 154
Me. 276, 280, 147 A.2d 140, 142 (1958).  Dreher and Haggerty contend that
subpart F is so inconsistent with the remainder of the will that all estate
assets not expressly devised in other articles must pass by intestacy to them
and their brother.  The presumption against intestacy is rebuttable, but the
court found that the evidence was not sufficient to rebut the presumption in
this case, and that finding is not clearly erroneous.
	[¶17]  Dreher and Haggerty contend that the court rewrote subpart F
without sufficient evidence that Lord intended the remainder of her estate to be
distributed by the personal representative to the named beneficiaries.  We
disagree.  There was sufficient evidence for the facts found by the court, and
those facts gave sufficient indication of Lord's intent to allow the court to
interpret the terms "trust" and "trustee" in subpart F as though they read
"estate" and "personal representative."  It was proper to do so because the
substituted words give effect to Lord's intent.  In Daggett v. Taylor, 124 Me. 88,
90, 126 A. 338, 339 (1924), we said:
[C]ourts will change or mould the language of the will in order to
give to it its intended effect, with the avowed object of dispelling
the effect of some inaccurate or inappropriate use of language on
the part of the testator or his scrivener, and making the will
interpret what he obviously meant, just as though his ideas had
been clearly and correctly expressed in the instrument . . . .
(citation omitted).
	[¶18]  Finally, the thirteen named beneficiaries request that their costs
of appeal be paid out of the estate but that Dreher and Haggerty's costs of
appeal not be paid from the estate.  We conclude that, pursuant to 18-A
M.R.S.A. § 1-601 (1998), the costs of the thirteen named beneficiaries may be
paid out of the estate, and the case is remanded to the Probate Court to
determine the reasonable amount of costs incurred by them.  Dreher and
Haggerty have not requested that their costs of appeal be paid out of the
estate, and therefore, we issue no order as to their costs.  
	The entry is:
		Judgment affirmed. Remanded for
		calculation and award of appellees' costs,
		including attorney fees, on appeal.

Attorneys for appellants: William C. Knowles, Esq. (orally) Merritt T. C. Ireland, Esq. Verrill & Dana, LLC One Portland Square Portland, ME 04112-0586 Attorneys for appellees: Catherine R. Connors, Esq. (orally) Barbara K. Wheaton, Esq. Pierce Atwood One Monument Square Portland, ME 04101-1100 (for 14 individual devisees) David J. Ballou, Esq. Ballou & Bedell P O Box 2000 York, ME 03909 (for First Parish Church & York Public Library) Peter Clifford, Esq. Hodsdon & Clifford, LLC 56 Portland Street Kennebunk, ME 04043 (for Animal Welfare Society)
FOOTNOTES******************************** {1} . Twelve of the individuals are each to receive one share, with the two remaining shares to be divided by four individuals. {2} . There was testimony setting the value of the York real estate between $800,000 and $900,000. {3} . The court recognized that subpart F was not the only provision outside of Article Fourth that referred to a trust. While the court admitted that it was at first troubled by other references to a trust, it was persuaded that the lack of an existing trust at the time of the execution of the will and the fact that Lord did not create a trust meant that the references were drafting errors. Article Eighth referred to "any trust herein created." In Article Ninth, Lord appointed a bank as trustee of "the trusts created in this my Last Will and Testament."