Estate of Footer

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 69
Docket:	Cum-99-620
Submitted
  on Briefs:	February 25, 2000
Decided:	April 20, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

ESTATE OF MARY F. FOOTER

RUDMAN, J.

	[¶1]  Linnco, Inc. appeals from a judgment entered in the
Cumberland County Probate Court (W. Childs, J.) denying its claims that (1)
it possessed a valid lien on the late Mary Footer's mobile home and (2) rent
accruing after Footer's death was a cost or expense of her estate's
administration.  We affirm in part and vacate in part.

I.  FACTS

	[¶2]  Mary Footer died intestate on November 26, 1997.  In
November 1998, Brackett Funeral Home petitioned for appointment as the
successor personal representative of Footer's estate, and thereafter served
as such.  Footer's estate contained only one item of value: her mobile home
situated in a Brunswick mobile home park.  In March 1999, the mobile
home sold for $16,300.  Linnco arranged this sale at Brackett Funeral
Home's urging.
	[¶3]  On the date of Footer's death, the mobile home was situated on
Linnco's property, the Linnhaven Mobile Home Park.  Footer had rented
space in the park since 1987.  The rent was paid in full as of the date of her
death.  Following Footer's death, her mobile home remained at the
Linnhaven park.  A prior personal representative of the estate paid for some
rent and snow plowing costs.
	[¶4]  Brackett Funeral Home filed a petition for complete settlement
of Footer's estate.  Linnco opposed that petition because under Brackett's
proposed distribution Linnco would have received just over 40% of the total
amount it believed it was owed.  Linnco petitioned to resolve the disputed
claim.  The Probate Court granted Linnco's disputed claim in part, finding
that Linnco was owed $240 for winterization and plowing as a cost of estate
administration.  In all other respects, the court denied Linnco's claim and
otherwise ordered the complete settlement of the estate.  Linnco then filed
this appeal.

II.  LINNCO'S PURPORTED LIEN ON THE ESTATE'S MOBILE HOME

	[¶5]  Linnco relies on a pair of statutes, see 10 M.R.S.A. §§ 3451,
3452 (1997),{1} to assert that it holds a land rent lien on the estate's mobile
home.  The Probate Court held that Linnco did not have a land rent lien
because it failed to properly perfect such a lien.  Because statutory
construction is a matter of law, we review decisions regarding the meaning
of a statute de novo.  See Estate of Jacobs, 1998 ME 233, ¶ 4, 719 A.2d 523,
524.
	[¶6]  The statutory land rent lien has been a part of Maine law, in
one form or another, since 1823.{2}  We have considered the land rent lien,
now codified in sections 3451 and 3452, only once before.  See Union Water
Power Co. v. Chabot, 93 Me. 339, 45 A. 30 (1899).  In Union Water Power,
we construed the land rent lien statutes broadly to attach a continuing lien
on the building at the time it is erected on the land and made that lien
enforceable against the building "whenever land rent becomes due and
payable."  Union Water Power, 93 Me. at 344, 45 A. at 31.
	[¶7]  The Probate Court, however, erred by applying the land rent
lien statutes because a different statute which specifically applies to mobile
homes situated in mobile home parks occupies the field and prohibits the
type of land rent lien sought by Linnco.  See 10 M.R.S.A. § 9097-A (1997).{3} 
Section 9097-A(2)(C) applies to leases that attempt to create a lien by
operation of a rental agreement between a mobile home owner and a mobile
park operator.  See id.  The statute specifically declares lease provisions
which seek to require "the tenant to give a lien upon the tenant's property,
including a tenant's mobile home, for the amount of any rent or other sums
due the park owner or operator" to be an unfair trade practice and
unenforceable.  Id. 
	[¶8]  When statutes appear to contradict, we seek to harmonize
those statutes if possible.  See Koch Refining Co. v. State Tax Assessor, 1999
ME 35, ¶ 6, 724 A.2d 1251, 1253.  Sometimes, statutes diverge to such an
extent that harmonization is impossible.  "It is unrealistic to assume that
whenever the legislature passes a statute it has in mind all prior acts
relating to the same subject matter."  2B Sutherland, Statutory Construction
§ 51.01, at 118 (1992 & Supp. 1998).  When statutes cannot be harmonized,
"a statute dealing with a subject specifically prevails over another statute
dealing with the same subject generally."  Butler v. Killoran, 1998 ME 147,
¶ 11, 714 A.2d 129, 133 (citing 2B Sutherland, supra, § 51.05, at 174).
	[¶9]  While section 9097-A applies only to leases that try to establish
liens and sections 3451 and 3452 create statutory liens independent of any
contract, it defies common sense to suggest, as Linnco does, that the
Legislature intended a statutory lien that cannot be created pursuant to a
lease.  If it is an unfair trade practice to attempt to create a lien by lease, it
certainly follows that a statutory lien creating the same result is also
inappropriate.{4}  Linnco should not receive the benefit of a statutory lien that
it could not enforce had it been a provision of part of a lease.  The
Legislature cannot have intended such an illogical result.  Section 9097-
A(2)(C) controls here as the specific statute, and we hold that the statutory
land rent lien does not apply to mobile homes situated in mobile home
parks.

III.  COSTS AND EXPENSES OF ESTATE ADMINISTRATION

	[¶10]  Construction of the Maine Probate Code concerns a question
of law.  When reviewing the legal determinations of the probate courts, we
construe the statutory language and application de novo.  See Estate of
Whittier, 681 A.2d 1, 2 (Me. 1996).  "When interpreting a statute we first
look at the plain meaning of the statutory language seeking to give effect to
the legislative intent."  Id. (citing Fullerton v. Knox County Comm'rs, 672
A.2d 592, 594 (Me. 1996)).  If, however, the Probate Court makes a finding
of fact, we must review it only for clear error.  See Estate of Plummer, 666
A.2d 116, 118 (Me. 1995).
	[¶11]  Brackett Funeral Home does not contest that the estate owes
Linnco rent for the land upon which the estate's mobile home was situated;
the issue is whether Linnco's claim for that rent receives priority over other
creditors of Footer's estate.  If the rent due is one of the "costs and
expenses of administration" of Footer's estate, see 18-A M.R.S.A. § 3-
805(a)(1) (1998), then Linnco's claim would receive priority over other
claims against the estate.  Conversely, if the rent is considered a debt of the
estate, Linnco will be paid proportionally with other creditors following full
payment of the costs of the administration of the estate.  See 18-A M.R.S.A.
§ 3-805 (1998); In re Donnell, 114 Me. 324, 96 A. 230 (1915).
	[¶12]  One discussion of probate rules distinguishes between the
debts of an estate and the cost of paying those debts:  

The phrase "costs and expenses of administration" refers to
the incidental expenses of paying debts-not the amount of
the debts themselves, to the incidental expenses of putting
into the hands of the heirs and legatees their portion of the
estate-not the amount of the sums thus delivered.

In re Bamberger's Estate, 177 P.2d 909, 911 (Utah 1947).  We have
previously accepted as a matter of law the Bamberger's Estate definition of
costs and expenses of administration.  See Estate of Staples, 672 A.2d 99,
101 (Me. 1996).  Our Probate Code provides that a personal representative
takes possession of the decedent's property and shall manage, protect, and
preserve the estate in his or her possession.  See 18-A M.R.S.A. § 3-709
(1998).  In order to maintain and preserve Footer's estate, the personal
representative needed to protect the only asset of the estate, the mobile
home.  To preserve the value of the mobile home, the price of which
declines precipitously when it is moved from a mobile home park, the estate
had to maintain the unit at its location and therefore the estate became
liable for rent.  Contrary to the Probate Court's conclusion, this rent
obligation was a cost to be borne by the personal representative in the
course of administering the estate.  See Johnson v. Martin, 567 A.2d 1299,
1303 (D.C. 1989) (directing that residuary estate pay the cost to maintain
decedent's property until that property is allotted).  Rent was an expense of
protecting the estate's sole asset and enabling the personal representative
to preserve the value of the asset.  See Bamberger's Estate, 177 P.2d at 911.

	The entry is:
Judgment affirmed in part and vacated in
part.  Remanded to the Cumberland
County Probate Court for further
proceedings consistent with the opinion
herein.

                                      
Attorney for appellant:

David J. Van Baars, Esq.
Shankman & Associates
101 Pleasant Street
Brunswick, ME 04011

Attorney for appellee:

Edward A. Brown, Esq.
56A Maine Street
Brunswick, ME 04011

FOOTNOTES******************************** {1} . One of these statutes reads: § 3451. Rent due on leased land When a lease of land with a rent payable is made for the purpose of erecting a mill or other buildings thereon, such buildings and all the interest of the lessee are subject to a lien and liable to be attached for the rent due. Such attachment, made within 6 months after the rent becomes due, is effectual against any transfer of the property by the lessee. 10 M.R.S.A. § 3451 (1997). The other referenced statute reads: § 3452. Land rent In all cases where land rent accrues and remains unpaid, whether under a lease or otherwise, all buildings upon the premises while the rent accrues are subject to a lien and to attachment for the rent due, as provided in section 3451, although other persons than the lessee may own the whole or a part thereof, and whether or not the land was leased for the purpose of erecting such buildings. If any person except the lessee is interested in said buildings, the proceedings shall be substantially in the forms directed for enforcing liens against vessels, with such additional notice to supposed or unknown owners as any justice of the court having jurisdiction of the proceedings orders, or the attachment and levy of execution shall not be valid except against the lessee. 10 M.R.S.A. § 3452 (1997). {2} . See R.S. ch. 91, §§ 36, 37 (1883); R.S. ch. 91, § 18 (1857). The old section 36 is identical to the current section 3451. The old section 37 mirrors the current section 3452 in all pertinent ways. {3} . The pertinent portion of the statute reads: § 9097-A. Unfair rental contracts 2. Unenforceable provisions. The following rental agreement or rule provisions are specifically declared to be unenforceable and in violation of Title 5, section 207: A. Any provision that absolves the park owner or operator from liability for the negligence of the park owner or operator or the agent of the park owner or operator; B. Any provision that requires the tenant to pay the legal fees of the park owner or operator in enforcing the rental agreement; C. Any provision that requires the tenant to give a lien upon the tenant's property, including a tenant's mobile home, for the amount of any rent or other sums due the park owner or operator; and D. Any provision that requires the tenant to acknowledge that the provisions of the rental agreement, including tenant rules, are fair and reasonable. 10 M.R.S.A. § 9097-A (1997). {4} . The legislative history underlying section 9097-A suggests that the Legislature sought to extend to mobile home owners who rent land in a mobile home park the tenant protections already guaranteed to apartment dwellers. See L.D. 1205, Statement of Fact (115th Legis. 1991). Other legislative documents also show the Legislature's desire to protect mobile home owners in the same way that apartment renters are protected. See Manufactured Housing Commission, Final Report to the 114th Legislature 1-2 (Dec. 1989).