by Dana Gray

Having made it all the way to the Vermont Supreme Court level, the issue of a Barnet estate came back to Caledonia Probate Court on Wednesday, where the judge signed an order to allow sale of the property.

In a small room normally reserved for jurors, Probate Judge Lois White held a hearing regarding the estate of Oliver Esden.

Caledonia Probate Court

Before the hearing ended, White had signed licenses allowing the estate's executors to sell the property and had denied a request by Esden's brother, James Esden of Essex Junction, for items held in the Barnet house.

To the town of Barnet, the judge's authorization means a nearly $200,000 estate can be placed on the market. The school district, the Pleasant View Cemetery, and the town are the beneficiaries.

As of April 29, the Esden real estate was valued at $141,700. Other assets, including bank accounts, add another $45,495.10 to the value of the estate.

Oliver Esden died more than two years ago. It has taken two years for the executors of the estate to get authorization to sell.

At issue was a claim to the estate by Esden's stepchildren, Leon McCullock and Katherine Clifford.

When it came time to probate the will in April 1995, Judge White saw a proposed will dated Feb. 25, 1992.

It named Leigh Larocque of Barnet as executor and Edward Bates of Waterford as successor executor. The will further states, "My wife's children, Leon McCullock and Katherine L. Clifford, and my brother, James Esden, are all well provided for and I make no provision for them in this, my will."

The stepchildren questioned the validity of the will and the presence of another will, dating back to 1986, naming them as beneficiaries, was mentioned.

Attorney Lawrence Kimball represented Clifford at the probate hearing. Larocque's presence as executor was called into question. Because he was a selectman for the town named as beneficiary, complained Clifford, he should not be executor.

It was also alleged at the hearing that Larocque used undue influence to elicit the will.

"Leigh manipulated (my stepfather's) mind to benefit the town and him," said Clifford after Tuesday's hearing, still harboring the feeling that Larocque should not have played a role in her stepfather's will.

The proposed will from 1986 would have provided $500 to McCullock and the rest to Clifford.

Despite the claims of the stepchildren, Judge White found that the will naming Larocque as executor and Barnet as the beneficiary was the true will.

The stepchildren appealed the decision to Caledonia Superior Court. Coexecutors Larocque and Bates filed a motion for summary judgment.

At the superior court level, the judge granted the executors' motion, using as his basis the absence of evidence from the stepchildren to combat the executors' claim.

What the stepchildren did argue against was the right of the executors to seek summary judgment in a probate appeal case. Judge Walter Morris Jr. decided that summary judgment is available on probate appeals.

With attorney Robert Gensburg on their side, the stepchildren appealed the superior court decision to the supreme court.

In April, justices of the supreme court rendered their decision in favor of the decision Morris had made.

With the appeal decided, Judge White brought everyone together for another probate hearing.

The effort of James Esden to claim items in the Esden residence was the issue that consumed the greatest amount of time at the hearing.

Oliver Esden's brother said that when their mother died, out of convenience, Oliver housed some of the items from her residence.

"My thoughts were that when he got done using them, they would be returned to the family," said Esden.

White asked him if he had a written document to support his claim.

"We simply went on each other's word and that was it," Esden answered. His word that there was such an agreement was not enough for Judge White to rule in his favor and she denied the claim.

The judge did suggest Esden could possibly purchase some of the items from the beneficiary.

"That's real fair," muttered a woman sarcastically from the group crowded into the hearing room.

Following the meeting, Clifford aired her lingering frustration.

"This country was built on family heritage, but now some politician gets involved and forget it," she said.

She expressed concern that even personal items such as pictures and photo albums would be withheld from the family.

When asked why the executors would want to hold onto anything like personal items, Clifford answered, "Power."

"(Larocque) is smoother than silk and twice as slippery," she said. Upon being questioned about personal items left in the Esden home, Larocque said the family could have them.

He acknowledged the bitter feelings toward him regarding his role as executor and said, "I never intended to hurt anybody."

As far as the real estate goes, Larocque said there are "interested parties." There is an appeal period that James Esden can take advantage ofregardmg items inside the residence. Until that period is over, the executors cannot sell the items.

Copyright 1997

The Caledonian-Record

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