SCOVT affirms ruling that children’s share of the personalty should contribute to estate’s administrative expenses only if spouse’s share of the personalty is insufficient.

Bonnie L. Avery v. Estate of Allen D. Avery, 2018 VT 59  [6/15/2018]

REIBER, C.J. Allen Avery (testator) died testate in 2008 and left property to his spouse and children. Spouse, children, and the executor of the estate have disputed how the estate’s administrative expenses should be allocated. The civil division determined that expenses should be paid out of spouse’s share of the personal estate until paid in full or until they exhaust her share, and that children’s share of the personalty should contribute to administrative expenses only if spouse’s share of the personalty is insufficient. Spouse appeals. We affirm.

Because we have found no Vermont case law addressing this issue, we look to the Restatement (Third) of Property (Restatement) and other states' case law for an expression of the common-law rule of abatement. Restatement (Third) of Prop.: Wills & Donative Transfers § 1.1 (1999) . According to the Restatement, "[u]nless otherwise provided by will or applicable statute, shares of heirs and devisees abate in the following order to pay claims: (1) intestate shares; (2) residuary devises; (3) general devises; (4) specific devises." Restatement, supra, § 1.1 cmt. f.

This order of abatement is based on § 3-902 of the Uniform Probate Code (UPC), "which codifies the usual rules of abatement followed generally." Restatement, supra, § 1.1 reporter's note 3. The UPC states: "[S]hares of distributees abate . . . in the following order: (i) property not disposed of by will; (ii) residuary devises; (iii) general devises; (iv) specific devises. . . ." U.L.A. Uniform Probate Code § 3-902(a) (2010).

 No one disputes that here the devise to children was a specific devise, and spouse's devises were either general or residuary.

The will clearly indicates that administrative expenses be paid out of the personal estate, but it does not otherwise indicate how to allocate expenses within this class of assets. Absent indication of testator's intent, we presume intent from the common law.