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Maietta v. Winsor, corrected 4-30-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 84
Docket:	Cum-97-200
Argued:	October 7, 1997
Decided:	April 28, 1998




	[¶1]  Robert Maietta appeals from the summary judgment, involving
the interpretation of Hugh Erskine's will, entered in the Superior Court
(Cumberland County, Calkins, J.) in favor of Deborah Winsor.  On appeal
Maietta asserts that the court erred by granting Winsor's motion to strike a
deposition and by construing Hugh's will to pass an estate in fee simple
absolute to property in Cape Elizabeth to Winsor's predecessor in title,
Margaret Erskine.  Maietta contends that, following a life estate in Margaret,
the property passed to him by operation of Hugh's will.  We disagree, and
affirm the judgment.  
	[¶2]  Hugh executed a last will and testament in June 1991, which
stated in part:  
	FIRST:  Having in mind all of my relatives, I give, devise
and bequeath the rest, residue and remainder of my estate,
real, personal and mixed, wherever found and however
situate at the time of my decease, to my wife, Margaret Boyd
Erskine.  It is my desire that real estate with any buildings
and furnishings located thereon at Surfside Road, Shore
Acres, Cape Elizabeth, Maine, and known as Lot #45, shall fall
into this bequest; subject, however, that in the event that my
wife should die holding said property, then the same shall
pass to my grandson, Robert Maietta, presently of Boston,
MA, to him, his heirs and assigns forever.  In the event,
however, that my wife should find that it is necessary or
desirable to sell said land and buildings, she should create a
separate savings account with the proceeds therefrom,
utilizing the same for her care, welfare and maintenance
during her lifetime, and whatever balance is left in said
segregated account should at the time of my wife's death, fall
into the residue of my estate.  
Hugh died in June 1992 and the Cape Elizabeth property passed to his
widow, Margaret, by operation of that will.{1}  
	[¶3]  In January 1995 Margaret created a trust, the Margaret Boyd
Erskine Trust, and named Winsor as its trustee and beneficiary.  Margaret
then conveyed the Cape Elizabeth property to Winsor as trustee by a deed
that was recorded in the Cumberland County Registry of Deeds in February
1995.  Margaret died in September 1995.  
	[¶4]  Maietta filed the underlying complaint in this action in January
1996, claiming that he was the rightful owner of the Cape Elizabeth
property.{2}  While the complaint was pending in the Superior Court, Maietta
commenced an action in the Cumberland County Probate Court in December
1996.  The Probate Court appointed Maietta as successor personal
representative of Hugh's estate.  Maietta executed a deed of distribution of
the Cape Elizabeth property to himself and recorded that deed in the
Cumberland County Registry of Deeds in December 1996.  
	[¶5]  In December 1996 Maietta filed a motion in the Superior Court
for a summary judgment on his claim that he was the rightful owner of the
property.  On the same date Winsor filed a motion for a summary judgment
on all counts of Maietta's complaint.  Winsor also filed a motion to strike the
deposition of Hugh's attorney, which purportedly addressed Hugh's intent at
the time he executed his will, and any reference to that deposition in
Maietta's statement of material facts in support of his motion for a summary
	[¶6]  Following a hearing the court granted Winsor's motion to strike
the deposition of Hugh's attorney to the extent that he discussed Hugh's
intent in drafting his will.  The court concluded that Hugh's will created an
estate in fee simple absolute in Margaret, leaving her with complete
freedom to do with the property what she desired, and created no interest
in Maietta.  Accordingly, the court granted Winsor's motion for a summary
judgment and denied that of Maietta.  This appeal followed.  
	[¶7]  The intent of the testator, as expressed in his will, controls the
legal effect of his dispositions.  18-A M.R.S.A. § 2-603 (1998).  Maietta
asserts that the will is ambiguous and that the court should have considered
the deposition of Hugh's attorney in determining Hugh's intent.  We have
stated that "[e]xtrinsic evidence may be admitted to resolve any ambiguity in 
the will."  Estate of Leighton, 638 A.2d 723, 724 (Me. 1994).  There is,
however, "a clear distinction between the admission of extrinsic evidence of
facts and circumstances existing at the time of the execution of the will and
the admission of testator's declaration of intent," the former being
admissible and the latter inadmissible.  First Portland Nat'l Bank v. Kaler-
Vaill Memorial Home, 155 Me. 50, 62, 151 A.2d 708, 714 (1959).  Even
assuming Hugh's will contains an ambiguity, the deposition of Hugh's
attorney is an inherently unreliable and inadmissible expression of the
testator's intent.   Lord v. Society for the Preservation of New England
Antiquities, Inc., 639 A.2d 623 (Me. 1994); Estate of Utterback, 521 A.2d
1184 (Me. 1987).  Consequently, the court was correct in striking the
deposition insofar as it addresses Hugh's intent.  
	[¶8]  "When reviewing a grant of summary judgment, we view the
evidence in the light most favorable to the party against whom the judgment
has been granted, and review the trial court's decision for error of law." 
Keyes Fibre Co. v. Lamarre, 617 A.2d 213, 214 (Me. 1992) (citation
	[¶9]  Maietta asserts that even without looking to extrinsic evidence
of Hugh's intent, Hugh's will created in Margaret an implied life estate. 
Although she could convey her life estate to Winsor, Maietta argues, on
Margaret's death the fee would pass to him.  We disagree.  The Probate Code
provides the guide for our interpretation of the first article of the will, as
§ 2-604.  Construction that will passes all property; after-
acquired property 

	A will is construed to pass all property which the testator
owns at his death including property acquired after the
execution of the will.  A devise of property conveys all the
estate of a devisor unless it appears by his will that he
intended to convey a lesser estate.  
18-A M.R.S.A. § 2-604 (1998).  We examine the will, therefore, to determine
Hugh's intent.  
	[¶10]  The second sentence of Article First, purportedly creating an
interest in the property in Maietta if Margaret should die still owning it, is
prefaced with the phrase "It is my desire."  It is, therefore, precatory.  See
Estate of O'Connor, 615 A.2d at 1180 (the phrase "I do not wish" signals
precatory intent).  The third sentence, purportedly allowing Margaret to sell
the property during her lifetime but to use only the portion of the proceeds
necessary for "her care, welfare and maintenance," is similarly phrased in
precatory terms.  The will provides that Margaret may sell the property "if it
is necessary or desirable," that she "should" create a separate account for
the proceeds, and that any proceeds remaining at her death "should" fall
into the residue of Hugh's estate.  Such language, which indicates what the
testator "regards as a wise disposition, ... leaving to some other person,
frequently the person to whom the property is given by some other
provision of the instrument, full discretion to ignore such advice and make a
different disposition of the property," is typically deemed precatory.  1 Bowe
& Parker, Page on Wills § 5.19, at 211-12 (4th ed. 1960).  In combination,
these last two sentences of the first article express Hugh's desire for what
should happen to the Cape Elizabeth property following his death.  They do
not, however, constitute a limitation on Margaret's right to dispose of the
property as she saw fit.  Therefore, the court was correct in its conclusion
that Hugh's will created an estate in fee simple in Margaret, not an implied
life estate.  Accordingly, the will created no interest in Maietta.  
	The entry is:
				Judgment affirmed.  
Attorney for plaintiff:
Richard P. Romeo, Esq., (orally)
Smith, Elliott, Smith & Garmey, P.A.
100 Commercial Street, Suite 304-308
Portland, ME 04101

Francis X. Quinn, Jr., Esq., (orally)
Boynton Waldron Doleac Woodman & Scott, P.A.
P O Box 418
Portsmouth, NH 03802-0418
FOOTNOTES******************************** {1}. Hugh's will was probated in New Hampshire. Margaret acted as executrix, and, apparently believing that she had completed the administration of the estate, closed the estate in April 1994. Margaret never executed a deed of distribution to release the Cape Elizabeth property from Hugh's estate to herself. This omission has no bearing on the resolution of Maietta's appeal because it does not affect the nature of the estate created in Margaret by operation of Hugh's will. {2}. Maietta also claimed that Winsor was a trespasser on the property and that she used undue influence on Margaret when she allegedly induced Margaret to transfer the property to the trust. Because we find that Hugh's will created no interest in the property in Maietta, as discussed below, Maietta has no standing to raise either claim. Thus it is unnecessary to address either of these claims.