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Estate of Calden, corrected 6-8-98
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 140
Docket:		Oxf-97-683
Argued:		April 8, 1998 
Decided:		June 5, 1998	 

Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.




ESTATE OF GLADYS CALDEN



CLIFFORD, J. 

	[¶1] Dennis Calden, Timothy Calden and Bonny Fernald appeal from a
judgment entered in the Oxford County Probate Court (Hanley, J.)
determining that Elizabeth Calden, as the heir of her deceased husband, was
entitled to share in the distribution of Gladys Calden's estate.
	[¶2] In July 1961, Gladys Calden executed a will containing the
following provision:
In the event that my said husband, Richard F. Calden, does not
survive me, or if there should not be sufficient evidence that he
and I died other than simultaneously, then I give, bequeath and
devise all of said rest, residue and remainder of my estate in
equal shares to my son, Warren Drury, my son, Bernard Drury,
my husband's son, Leland Calden, and my husband's daughter,
Madeline Davenport, to have and to hold the same to him, her
or them and his, her, or their heirs forever.
(emphasis added). Gladys's stepson, Leland Calden, died in February 1996. 
Leland was survived by his spouse, Elizabeth Calden, and his three children,
Dennis Calden, Timothy Calden and Bonny Fernald. 
      [¶3] Following her death in October 1996, Gladys's will was informally
admitted to probate.  In January 1997, Elizabeth Calden petitioned the
Probate Court for a special finding construing Gladys's will and determining
the persons entitled to distribution under the will.{1}  Asserting that she was
Leland Calden's heir, Elizabeth requested the court to determine that she
was entitled to her intestate share (one-half) of the portion of Gladys's estate
that would have passed to Leland if he had survived Gladys.  The appellants
objected to the petition on the ground that Elizabeth was not Leland's heir.  
	[¶4] The Probate Court found that "[w]hile it is not clear that [Gladys]
specifically wanted to include [Elizabeth Calden as one of Leland Calden's
heirs,] there has been no evidence presented to the contrary."  Citing 18-A
M.R.S.A. § 1-201(17) (1998), the statutory definition of the term heirs, the
Probate Court concluded that Elizabeth Calden was entitled to her
distributive share under intestate succession.  This appeal followed. 
	[¶5] The Probate Court concluded that Elizabeth was Leland's heir
based on the statutory definition of that term and did not consider extrinsic
evidence of Gladys's intent.  We therefore review the judgment for errors of
law.  See Estate of Hardy, 609 A.2d 1162, 1163 (Me. 1992).  
	[¶6] Because Gladys died after January 1, 1981, the effective date of
the Probate Code, the Code applies to her will.  See 18-A M.R.S.A.
§ 8-401(b)(1) (1998).  Absent a clear indication of contrary intent, any rule
of construction contained in the Code applies to instruments executed
before the effective date of the Code.  See id. § 8-401(b)(5).  
	[¶7] The term heirs is defined in the Probate Code as "those persons,
including the surviving spouse, who are entitled under the statutes of
intestate succession to the property of a decedent."  Id. § 1-201(17).  "It is
well established in this state that the use of a technical word, in the absence
of clear evidence to the contrary, leads to the presumption that the testator
intended such word in its technical legal sense."  New England Trust Co. v.
Sanger, 151 Me. 295, 302, 118 A.2d 760, 764 (1955).  Absent a clear
indication of contrary intent, the language of the will, construed with
reference to the Probate Code, yields the conclusion that, as Leland's
surviving spouse, Elizabeth was one of his heirs.{2} 
	[¶8] The appellants observe that Leland had only an expectation of
inheritance from Gladys at the time of his death.  Therefore, the appellants
argue, Elizabeth is not an heir of Leland since the Probate Code defines heirs
as those person entitled to the property of a decedent.  We disagree. 
Section 1-201(17) of the Probate Code defines heirs as "those persons . . .
who are entitled  under the statutes of intestate succession to the property
of a decedent."  18-A M.R.S.A. § 1-207(17).  As Leland's surviving spouse,
Elizabeth belongs to the class of persons entitled to his property under the
laws of intestacy.  See id. § 2-102.  There is no basis in the Code for the
appellants' contention that Elizabeth is an heir of Leland only if she would
have been entitled to a share of Gladys's estate at the time of Leland's death.   
	The entry is:
				Judgment affirmed.
               
Attorney for appellants: Daniel P. Barrett, Esq., (orally) Cloutier, Barrett, Cloutier & Conley, P.A. 22 Monument Square Portland, ME 04101-4053 Attorney for appellee: Paul E. Thelin, Esq., (orally) Ainsworth & Thelin, P.A. P O Box 2412 South Portland, ME 04116-2412
FOOTNOTES******************************** {1} Elizabeth died in June 1997 and, pursuant to M.R. Civ. P. 25(a) and M.R. Prob. P. 25, the personal representative of her estate, Gary H. Williamson, was substituted as the petitioner in this matter. {2} We recognize that, under pre-Code case law, a surviving spouse is not an heir of a deceased spouse. See, e.g., Linnell v. Smith, 153 Me. 288, 290, 137 A.2d 357, 358 (1957); Union Safe Deposit & Trust Co. v. Wooster, 125 Me. 22, 24, 130 A. 433, 434 (1925). The appellants argue that the drafter of Gladys's would have been aware of this case law and relied on it in drafting her will. Nevertheless, the Probate Code had been in effect for fifteen years when Gladys's will became effective and the court found no evidence that Gladys intended to use the term heirs in other than its technical legal sense. In these circumstances, the court did not err by applying the definition of heirs contained in section 1-201(17) of the Code. Cf. Estate of Weeks, 462 A.2d 44, 48-49 (Me. 1983).