ESTATE OF JOHN W. GILBERT
Submitted On Briefs: July 19, 2017
Glasser, Esq., Camden, for appellant Judith Gilbert
C. Thiem, Esq., Law Office of Susan C. Thiem, Lincolnville,
for appellee Nathan Gilbert
ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
Judith Gilbert, individually and as personal representative
of the Estate of John W. Gilbert, appeals from a judgment of
the Waldo County Probate Court (Longley, J.) approving, with
a modification, the report of a referee for the distribution
of the estate. Judith argues that the court erred by
appointing a referee and adopting the report of the referee.
We vacate the judgment and remand for further proceedings.
John W. Gilbert died on February 2, 2011. In 2012, Judith,
John's wife, petitioned for informal probate of
John's will and sought appointment as personal
representative. Since then, Judith and one of John's sons
from a previous relationship, Nathan A. Gilbert, have engaged
in highly contentious and protracted litigation regarding the
disposition of John's estate. See Estate of
Gilbert, 2016 ME 92, ¶ 2, 142 A.3d 583. Eventually,
the court appointed Judith as personal representative and
declared that John died intestate. In addition, because the
parties demonstrated their unwillingness or inability to
agree on any aspect of the litigation, the court took the
extraordinary step of ordering a "court-imposed,
month-by-month, step-by-step court-supervised plan" for
the administration of the estate. See id.; 18-A
M.R.S. § 3-502 (2016).
In 2014, the court appointed a referee to "propose a
plan of distribution." Eight months later, the referee
submitted a report in which he inventoried and valued the
property of the estate; calculated the debts of the estate,
including liens against the real property; stated which heir
should receive which items of personal property; identified
the exemptions and the amount of the exemptions to which
Judith was entitled; and concluded that the real property
"must be sold to pay the debts of [the] estate."
Before submitting his report, the referee had not conducted a
hearing, admitted any evidence, or met with the parties.
Judith objected to the report on several grounds, including
the referee's failure to comply with 14 M.R.S. §
1153 (2016). The court neither considered those
objections nor acted on the report itself, but instead issued
a decision in July of 2015 requiring Judith to sell the
property of the estate consistent with the referee's
suggestion. Estate of Gilbert, 2016 ME 92,
¶¶ 4, 6, 142 A.3d 583. We vacated that decision in
Judith's subsequent appeal, and we remanded the matter
for the court to conduct a hearing on Judith's objections
and then determine whether to adopt, modify, or reject the
report in accordance with the required procedure set out in
M.R. Civ. P. 53(e)(2). Estate of Gilbert, 2016 ME
92, ¶ 6, 142 A.3d 583.
On remand, the court conducted a hearing to consider whether
to accept, reject, or modify the referee's report. The
only evidence presented at the hearing was the testimony of a
Department of Health and Human Services representative
regarding the amount of a lien on the estate's property,
Judith and Nathan's testimony that the referee never met
with them or conducted a hearing before issuing his report,
and Judith's testimony regarding sums she has expended on
behalf of the estate. By judgment dated November 30, 2016,
the court modified the referee's findings as to the lien
against the property and otherwise accepted the report.
Title 14 M.R.S. §§ 1151-1155 (2016), in conjunction
with M.R. Civ. P. 53, govern the use of referees in civil
actions. See M.R. Prob. P. 53 (applying M.R. Civ. P.
53 to probate proceedings); see also 4 M.R.S. §
501 (2016) (providing for the appointment and compensation of
a referee in cases before the Supreme Judicial Court and the
Superior Court). In general terms, a court may appoint a
referee to complete certain tasks, including procuring
witnesses, gathering evidence, and submitting a report to the
court with the referee's findings of fact and conclusions
of law. 14 M.R.S. §§ 1151, 1153, 1154; M.R. Civ. P.
53(a), (c), (d), (e); see Hennessy v. Fairley, 2002
ME 76, ¶ 17, 796 A.2d 41 ("The use of referees is
provided for because reference relieves [judges and justices]
from the necessity of conducting the trial and requires only
that they consider the acceptance or rejection of the
referee's report and the entry of judgment."
(quotation marks omitted)). In a nonjury matter, once the
referee submits a report to the court, the parties have an
opportunity to object to the referee's findings and
conclusions before the court decides whether to "accept,
reject or recommit the report" to the referee. 14 M.R.S.
§ 1155; see M.R. Civ. P. 53(e)(2).
In this second appeal, Judith advances several challenges
both to the referee's findings and conclusions and to the
Probate Court's decision adopting those findings ...