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Estate of Baril
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1997 ME 142
Docket:		Yor-96-736
Argued :		April 9, 1997
Decided:		June 30, 1997

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



ESTATE OF ANTOINETTE BARIL



CLIFFORD, J.

	[¶1]  Yolande Maurice, the daughter of Antoinette Baril, appeals from
the judgments entered in the York County Probate Court (Brooks, J.)
allowing Antoinette Baril's will dated September 6, 1968, and appointing
Harvey Baril as the personal representative of the estate, and from a
summary judgment entered in favor of Harvey Baril and the Baril defendants
on Maurice's separate complaint to determine heirs.  On appeal, Maurice
contends that the court erred by granting the petition for formal probate of
Antoinette Baril's 1968 will, and in entering the summary judgment.  We
affirm the judgments.
	[¶2]  Antoinette Baril died on September 12, 1971, and was survived
by her husband, Lucien J. Baril, Maurice, three stepchildren, and a sister,
Marie Paule Paquette.  At the time of her death, Antoinette Baril owned a
cottage at Granny Kent Pond in Shapleigh, the property that generates this
appeal.  Two different wills of the decedent were offered for probate in
1971.  The first will, dated September 6, 1968, left a small bequest to
Maurice and the three stepchildren, and the rest, residue and remainder of
her estate to her husband.  In the second will, dated August 25, 1969, the
Shapleigh cottage was left to Paquette, a share to her husband, and the
remainder of her estate to Maurice.{1}  Lucien Baril died on January 3, 1974.{2} 
No action was taken on either petition for the probate of the purported wills
of Antoinette Baril until February 22, 1977, when the court ordered them
filed.  In 1980, the court restored the petition for probate of the 1968 will
to the docket.
	[¶3]  Lucien Baril and his successors have continuously and exclusively
occupied the Shapleigh cottage since Antoinette Baril's death.  In the fall of
1994, the Baril defendants attempted to sell the cottage.  A routine title
examination revealed that the probate of Antoinette Baril's estate had never
been completed.  A formal petition to reinstate the probate of the 1968 will
was filed in October of 1994 and was supplemented by a motion to substitute
the 1994 petition for the 1971 petition.  Maurice objected to the motion
and filed a complaint to determine heirs, asserting, inter alia, that any
probate of the 1968 or 1969 wills was barred by the provisions of
18 M.R.S.A. §§ 1555-56 (1981), and that she was the sole heir of Antoinette
Baril.  After the parties filed cross-motions for a summary judgment, the
court concluded that the probate of the 1968 will was not time-barred.  The
court applied pre-Code law and pursuant to 18 M.R.S.A. § 1555 allowed
Antoinette Baril's 1968 will and appointed Harvey Baril as the personal
representative.  The court also entered a summary judgment against Maurice
on her complaint to determine heirs.  This appeal by Maurice followed.
I.
	[¶4]  Maurice contends that probate of the decedent's will is
time-barred because the Probate Code requires that pre-Code law be applied
and that the applicable provision of the pre-Code law, 18 M.R.S.A. § 1555,{3}
repealed by P.L. 1979, ch. 540, § 24-C (effective January 1, 1981), was
misinterpreted by the court.  The Baril defendants contend that the court
correctly construed 18 M.R.S.A. § 1555.  They argue in the alternative that
the Probate Code must be applied and, pursuant to 18-A M.R.S.A. § 3-108(b)
(Supp. 1996), the probate of Antoinette Baril's will is not time-barred.  We
agree with the alternative contention of the Baril defendants.
	[¶5] The Probate Code, 18-A M.R.S.A. §§ 1-101 through 8-401
(1981 & Supp. 1996), is modeled on the Uniform Probate Code and became
effective in 1981.  See P.L. 1979, ch. 540 (An Act to Establish the Maine
Probate Code).  The Probate Code includes an express provision regarding
its effective date.  Section 8-401 states that the Code takes effect on
January 1, 1981, and further provides in part:

(b)  Except as provided elsewhere in this Code, on the effective
date of this Code:

	. . . . 

(2) The Code applies to any proceeding in Court then pending or
thereafter commenced regardless of the time of death of
decedent except to the extent that in the opinion of the court
the former procedure should be made applicable in a particular
case in the interest of justice or because of infeasibility of
application of the procedure of this Code.

18-A M.R.S.A. §§ 8-401(b)(2) (1981) (emphasis added).  The broad language
in section 8-401(b)(2) provides for the application of the new Code to all
pending proceedings unless, in the interest of justice or because applying
the new Code is not feasible, circumstances not present here, the court
determines that it should apply pre-Code law.
	[¶6]  Section 3-108(b) directly addresses the circumstances of this
case, and provides:

For decedents dying before January 1, 1981, no informal probate
or appointment proceeding or formal testacy or appointment
proceeding ... may be commenced more than twenty years after
the decedent's death ....

18-A M.R.S.A. § 3-108(b) (Supp. 1996).  Antoinette Baril died in 1971.  The
petition to probate her 1968 will and to appoint a personal representative
was filed prior to January 1, 1981, and was pending on the effective date of
the new Code.  Accordingly, the 1971 petition was timely pursuant to
section 3-108(b).  
	[¶7]  Conceding that the court's approval of Antoinette Baril's will 
must be affirmed if the Probate Code applies, Maurice argues that
18-A M.R.S.A. § 8-401(b)(4) providing for an exception to general
applicability of the Probate Code{4} precludes the application of section 3-
108(b) and requires that the Court apply pre-Code law.  Maurice further
contends that approval of the 1968 will is barred because section 1555, the
applicable pre-Code provision, provides that no probate of a will shall be
originally granted after twenty years from the death of any person.  Because
the probate proceeding dealing with Antoinette Baril's will was not
completed within twenty years from the date of the her death, Maurice
argues, it cannot be completed subsequent to 1991.  We disagree that the
pre-Code law is applicable to bar the probate of the 1968 will.{5}
	[¶8] Title 18-A of the Maine Revised Statutes Annotated section 8-
401(b)(4), on which Maurice relies to assert that pre-Code law applies, must
be construed in light of the general mandate of section 8-401(b)(2) that the
Code be applied to any proceeding, including those pending.  The petition
to probate Antoinette Baril's will was pending on the effective date of the
Code and by its terms, section 3-108(b) would apply.  To apply pre-Code
law, 18 M.R.S.A. § 1555, would directly conflict with that express provision
of the Probate Code.  Section 1555, at least as Maurice urges us to construe
it, requires the completion of a probate proceeding within twenty years
from the date of the testatrix's death.  The Code provision, however, is very
different.  Section 3-108(b) allows for a period of twenty years from the
testatrix's death to commence a probate proceeding.  The Code became
effective in 1981 and by the express terms of section 3-108(b), that section
became directly applicable to the pending proceeding to probate Antoinette
Baril's will.  We decline to construe section 8-104(b)(4) as requiring the
application of law so many years beyond the effective date of the Code, the
result of which is to nullify the provisions of section 3-108(b) that expressly
apply to these proceedings.  Accordingly, section 8-104(b)(4) does not affect
this probate proceeding and does not trigger the application of
18 M.R.S.A. § 1555.
	[¶9]  Because we conclude that the 1968 will was correctly allowed,
albeit for a different reason than that used by the Probate Court, there was
no error in the entry of a judgment against Maurice on her additional
complaints, the validity of which hinged on the will not being allowed.
	The entry is:
			Judgments affirmed.

Attorney for appellant: Fernand A. Martineau, Esq. (orally) 278 Capisic Street Portland, ME 04102 Attorneys for appellees: Larissa S. Pratt, Esq. (orally) Smith, Elliott, Smith & Garmey, P.A. P O Box 1179 Saco, ME 04072
FOOTNOTES******************************** {1} There is currently no proponent of the 1969 will, and the parties have stipulated that the petition for the probate of the 1969 will has been withdrawn. {2} Pursuant to his will, Lucien Baril's two sisters, Helena LaViolette and Laurianne Labrecque, inherited equal interests in the Shapleigh cottage. LaViolette and Labrecque conveyed their interest in the Shapleigh cottage to themselves and Lawrence Labrecque on July 3, 1986. Helena LaViolette subsequently conveyed her interest in the camp to Harvey Baril. {3} The statute in force before the adoption of the Probate Code in 1981 provided in part: After 20 years from the death of any person, no probate of his last will or administration on his estate shall be originally granted except as provided in section 1556, unless it appears that there are moneys due to said estate from this State or the United States .... 18 M.R.S.A. § 1555, repealed by P.L. 1979, ch. 540, § 24-C (effective January 1, 1981). {4} 18-A M.R.S.A. § 8-401(b)(4) provides: (4) An act done before the effective date in any proceeding and any accrued right is not impaired by this Code. If a right is acquired, extinguished or barred upon the expiration of the prescribed period of time which has commenced to run by the provisions of any statute before the effective date [of the Probate Code], the provisions shall remain in force with respect to that right. {5} Because we conclude that the substantive provisions of the Probate Code apply to the probate of Antoinette Baril's 1968 will, we do not address the Probate Court's conclusion that 18 M.R.S.A. § 1555 does not require that a probate proceeding be completed within 20 years.