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White v. Fleet Bank attorneys and footnotes

Attorneys for the plaintiffs:

Elliott L. Epstein, Esq. 	   (orally)
Raymond Laurier, Esq.
Isaacson & Raymond
P.O. Box 891
Lewiston, Maine 04243

Attorney for the defendant:

Leigh McCarthy, Esq.     (orally)
Rudman & Winchell, LLC
P.O. Box 1401
Bangor, Maine 04402-140l

Guardian Ad Litem:

Terry Snow, Esq.
P.O. Box 275
Cumberland Center, Maine 04021
FOOTNOTES******************************** {1} . M.R. Prob. P. 72 incorporates M.R. Civ. P. 72. If the report is contested, as it is here, a report from the court is made pursuant to M.R. Civ. P. 72(c) which states: (c) Report of Interlocutory Rulings. If the court is of the opinion that a question of law involved in an interlocutory order or ruling made by it in any action in the Superior Court ought to be determined by the Law Court before any further proceedings are taken therein, it may on motion of the aggrieved party report the case to the Law Court for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties without making any decision therein. {2} . The "final judgment rule" is not specifically articulated in the Rules of Civil Procedure, but is developed from case law, see Andrews v. Department of Envtl. Protection, 1998 ME 198, ¶¶ 3-5, 716 A.2d 212, 215-215; Porrazzo v. Karofsky, 1998 ME 182, ¶¶ 5-7, 714 A.2d 826, 827-828. In the Civil Rules "Judgment" is defined to include: "a decree and any order from which an appeal lies." M.R. Civ. P. 54A. M.R. Civ. P. 73(a) then addresses appeal of a judgment which "is by law reviewable by the Law Court." The term "final judgment" is referenced, without being further defined, in Rule 54(b). {3} . In probate practice, a handwritten will is called a "holographic" will. {4} . Under former 18 M.R.S.A. § 1057 (1964 & 1965 Supp.) now recodified as 18-A M.R.S.A. § 2-201(a) (1998), a surviving spouse could elect to take a 1/3 share of the estate in lieu of any distribution under a will. Old Colony Trust Co. v. McGowan, 156 Me. 138, 141-45, 163 A.2d 538, 540-42 (1960), Given v. Curtis, 133 Me. 385, 386, 178 A. 616, 616 (1935). {5} . In 1984, the Federal Trust Company of Waterville merged with the Merrill Trust Company; in 1988, the Merrill Trust Company merged with Norstar Bank of Maine and the two entities assumed the name Fleet Bank of Maine. {6} . Appointment of a guardian ad litem is governed by M.R. Prob. P. 17(b) which incorporates M.R. Civ. P. 17(b). {7} . Judge William Childs had succeeded Judge Dana Childs as Judge of the Cumberland County Probate Court. See M.R. Prob. P. 63 and M.R. Civ. P. 63. {8} . Mr. Moore died in 1970. Accordingly, the Moore Trust is subject to the "wait and see" statute as the statute applies to wills where the testator dies after August 20, 1955. 33 M.R.S.A. § 106 (1988). {9} 9. Comment f of Section 1.4 states in pertinent part as follows: The rule against perpetuities adopted by this section, however, is that what-does-happen approach, usually referred to as the wait- and-see approach, under which it is not possible to determine whether an interest fails under the rule against perpetuities as of the date the period of the rule begins to run, unless on such date it is impossible under all circumstances for the interest to vest in time. . . . Restatement (Second) of Property § 1.4 cmt. f (1981). {10} . When analyzing interests that are subject to the "wait and see" doctrine, it is important to consider that the doctrine's purpose is "to grant interests that would have been invalid under the common law rule a reasonable chance to be valid." See Lawrence W. Waggoner, Perpetuities: A Perspective On Wait-And-See, 85 Colum. L. Rev. 1714, 1717 (1985). Pursuant to the "wait and see" doctrine, interests become invalid "only if they still remain in existence and contingent" beyond twenty-one years after the last life in being. See id. {11} . The rule against perpetuities concerns itself only with the vesting, or commencing, of estates, and not at all with their termination. See Andrews v. Lincoln, 95 Me. 541, 545, 50 A. 898, 900 (1901). Therefore, the right to income may timely vest in a nonlife in being beneficiary and run well beyond 21 years after the death of the last life in being. Only on the death of the nonlife in being whose interest runs beyond the perpetuities period will the succeeding interest fail. {12} . To illustrate this point, consider a validating scenario that is as unlikely as many of the scenarios one is forced to consider when applying the common law rule. For example, suppose the last life in being were to die today. The next lineal descendant, A, would succeed to the right to income immediately on that death. Assume that A is ninety years old, and has issue as follows: one son, B, who is seventy; one grandchild, C, who is fifty; and one great- grandchild, D, who is thirty. Next, assume A were to die tomorrow, B next week, and C next month. In such a scenario, the right to income from the trust would have passed through three nonlife in being beneficiaries to D, the great great grandchild of the last life in being, in whom the right to income would have vested within approximately one month from the death of the last life in being. {13} . The Restatement (Second) of Property includes as lives in being: (b) Those individuals alive when the period of the rule begins to run, if reasonable in number, who have beneficial interests vested or contingent in the property in which the non-vested interest in question exists and the parents and grandparents alive when the period of the rule begins to run of all beneficiaries of the property in which the non-vested interest exists. . . . Restatement (Second) of Property Donative Transfers § 1.3(2)(b) (1981). With respect to the Moore Trust, there remain numerous lives in being, that are as follows: the children of Rachel Moore Lopez-April L. White, William D. Lopez, Albert F. Lopez, and Mark Lopez; Nancy Tancredi; Robert J. Tancredi; and Robert Sapiro, Nancy Tancredi's son. All of these family members, who are affected by the trust, were alive when Mr. Moore died in 1970, and are therefore the lives in being that will be used to measure the longevity of the Moore Trust. {14} . See, e.g., Cal. Civ. Code § 724 (West Supp. 1982); Minn. Stat. § 500.17 (1980); Ind. Code § 32-1-4-2 (1976); Mich. Comp. Laws § 554.36 (1967); N.Y. Est. Powers & Trusts Law § 9-2.1 (McKinney 1967); Pa. Cons. Stat. Ann. tit. 20, § 6106 (1972).

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