Pascarella v. Perry, No. 709-9-09 Rdcv (Cohen, J., Feb. 22, 2010) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.] 

STATE OF VERMONT 

RUTLAND COUNTY 

 ) 

HENRY W. PASCARELLA, ) Rutland Superior Court 

 ) Docket No. 709-9-09 Rdcv 

Plaintiff, ) 

 ) 

v. ) 

 ) 

BEYHAN A. PERRY, ) 

 ) 

Defendant ) 

DECISION ON DEFENDANT’S MOTION TO DISMISS, FILED NOVEMBER 9, 

2009, and PLAINTIFF’S MOTION FOR JOINDER, FILED DECEMBER 9, 2009

 Plaintiff Henry Pascarella seeks to void the transfer of real estate made by the late 

Farwell Perry prior to his death. Defendant Beyhan Perry moves to dismiss, arguing that 

Plaintiff, as foreign administrator of her late-husband’s estate, is without standing to 

bring this action. Plaintiff also seeks to join Morgan Perry and James Perry, the children 

of the late Mr. Perry, on the basis that their claim as to the real estate is identical to 

Plaintiff’s. 

 Plaintiff is represented by Christopher Corsones, Esq. Defendant is represented by 

John S. Liccardi, Esq. 

BACKGROUND 

 Farwell Perry was the owner of land located in Wallingford, Vermont. In August 

2007, he executed a deed placing the entire property in joint tenancy with his wife 

Beyhan Perry and himself. Farwell Perry died on May 18, 2009. By virtue of his death, 

Ms. Perry became the sole owner of the property. 
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 Henry Pascarella was appointed as Temporary Administrator of the Estate of 

Farwell Perry by Order of the Probate Court for the District of Greenwich, Connecticut, 

issued May 19, 2009. Mr. Pascarella was named Temporary Administrator pursuant to a 

Last Will and Testament of Farwell Perry, dated April 13, 2005. 

 However, Farwell Perry left a more recent Last Will and Testament dated October 

31, 2008. That Will was admitted to probate in the Probate Court of Rutland, Vermont, 

on September 1, 2009. On that same date, William G. Post, Jr. was appointed 

Administrator of the Estate of Farwell Perry. The Order of the Rutland Probate Court 

specifies that all known heirs and the surviving spouse consented to the allowance of 

Farwell Perry’s Last Will and Testament dated October 31, 2008. 

 Mr. Pascarella now seeks to void the real estate transfer by Farwell Perry which 

created the joint tenancy with his wife in the Wallingford property. He alleges that Mr. 

Perry lacked sufficient legal mental capacity to understand the full ramifications of the 

creation of the joint tenancy and that his wife, Beyhan Perry, exercised unlawful undue 

influence over Mr. Perry in regards to the execution and delivery of the deed. 

 In her Motion to Dismiss, Beyhan Perry argues that Mr. Pascarella lacks standing 

to bring this action and that joinder of Farwell Perry’s children is not proper. In response, 

Mr. Pascarella requests that the Court stay its decision until his appeal is decided as to 

Probate Court’s allowance of the Will. 

DISCUSSION 

Under Vermont law, the right to bring an action for recovery of property on 

behalf of a deceased devolves to the duly appointed administrator: 

[a]n executor or administrator may commence, prosecute or 

defend, in the right of the deceased, actions which survive 
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to such executor or administrator and are necessary for the 

recovery and protection of the property or rights of the 

deceased and may prosecute or defend such actions 

commenced in the lifetime of the deceased. 

14 V.S.A. § 1401. 

Thus, Morgan Perry and James Perry are not proper parties for joinder under 

either V.R.C.P. 19(a) or V.R.C.P. 20, as the statute does not provide for heirs to bring 

such an action for recovery of property. 

Vermont law also requires that a foreign administrator seeking to prosecute a 

claim in this state on behalf of his decedent must first receive ancillary letters of 

administration from a probate court in Vermont. “[A] foreign administrator is without 

standing to prosecute the claim of his decedent unless authorized by ancillary letter 

issued here.” Weinstein v. Medical Center Hospital of Vermont, Inc., 358 F.Supp. 297, 

298 (D.Vt. 1972) (citing Joy, Executor v. Swanton Savings Bank & Trust Co., 111 Vt. 

106, 110 (1940); Church's Executor v. Church's Estate, 78 Vt. 360, 363 (1906); Vaughn 

v. Barret, 5 Vt. 333, 336-337 (1833)). 

Plaintiff does not dispute that he has not received ancillary letters of 

administration from a probate court in Vermont. Thus, he is without standing to prosecute 

this claim for recovery of the property and his action is dismissed without prejudice. 

Plaintiff may re-file his claim should he receive the proper ancillary letters of 

administration. 

ORDER 

(1) Defendant’s Motion to Dismiss, filed November 9, 2009, is GRANTED. 

(2) Plaintiff’s Motion for Joinder, filed December 9, 2009, is DENIED. 
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(3) Plaintiff’s action is dismissed WITHOUT prejudice. He may re-file his action if 

he receives the proper ancillary letters of administration. 

Dated at Rutland, Vermont this _____ day of ________________, 2010. 

____________________ 

Hon. William Cohen 

Superior Court Judge