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Estate of Theberge, corrected 3-18-98
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:1998 ME 45 
Docket:Cum-97-369
Submitted
on Briefs:January 9, 1998
Decided:March 4, 1998


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





ESTATE OF RONALD O. THEBERGE



WATHEN, C.J.


	[¶1]  Sally Kruk (n/k/a Sally Wallace) appeals from a judgment entered
in the Cumberland County Probate Court (Childs, J.) barring her disputed
claim against the estate of Roland O. Theberge.  The court held that she
failed to file a petition for allowance in a timely manner in compliance with
18-A M.R.S.A. § 3-806 (1998).{1} Kruk argues that neither she nor her
attorney was properly served with a notice of disallowance, and thus her
claim should not have been barred.   Finding no error, we affirm the
judgment.  
	[¶2] Contrary to Kruk's arguments, a probate proceeding was
commenced in this matter upon the filing of the application for informal
probate.  M.R. Prob. P. 2; M.R. Prob. P. 3.  The appropriate method of service
in such a case is by delivery or by mail upon the claimant's attorney, unless
the court orders that the claimant be served personally. M.R. Prob. P. 5(a);
M.R. Civ. P. 5(b).  Moreover, there is no express requirement for certified
mail, return receipt requested.  See 18-A M.R.S.A. § 3-806 and M.R. Civ. P.
5.  In the absence of an order that Kruk be served personally, the personal
representative properly served the notice of disallowance on Kruk's attorney
of record by ordinary mail.  
	[¶3]  Despite Kruk's contention that her attorney did not receive the
notice, it was not clear error for the court to find that the letter of the
attorney for the estate certifying that she mailed the notice to claimant's
attorney was sufficient and that no other proof was necessary. M. R. Civ. P.
5(d); 1 Field, McKusick & Wroth, Maine Civil Practice § 5.3 & n.5 (2d ed.
1970) (citing Timmons v. United States, 194 F.2d 357, 360-61 (4th Cir.
1952)).  "Where, as here, there is a choice between two permissible views of
the weight of evidence, the findings of the Probate Court must stand." Estate
of Rosen, 447 A.2d 1220, 1223 (Me. 1982) (citing Estate of Mitchell, 443
A.2d 961 (Me. 1982)).
	[¶4]  Because the court found that the notice of disallowance was
served, Kruk's failure to commence an action within the time limits
specified by 18 M.R.S.A. § 3-806 barred her claim.  Estate of Staples, 672
A.2d 99, 101 (Me. 1996).
	The entry is:
				Judgment affirmed.
                   
Attorney for appellant: Lisa A. Tavenner, Esq. Moncure & Barnicle P O Box 636 Brunswick, ME 04011 Attorney for appellee: Linda T. Wood, Esq. 12 Court Street Bath, ME 04530
FOOTNOTES******************************** {1} In relevant part, the statute provided: Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than 60 days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to furnish notice to a claimant of action on his claim for 60 days after the time for original presentation of the claim has expired has the effect of a notice of allowance. 18-A M.R.S.A. § 3-806 (1998) (emphasis added).