Estate of Rubert, In re

• Decision Date: 29 December 1994
• Docket Number: No. 93-686,93-686
• Parties: In re Estate of Kennedy F. RUBERT, Jr.
• Court: New Hampshire Supreme Court

Page 937

651 A.2d 937

139 N.H. 273

In re Estate of Kennedy F. RUBERT, Jr.

No. 93-686.

Supreme Court of New Hampshire.

Dec. 29, 1994.

McSwiney, Semple, Bowers & Wise, P.C., New London (Robert E. Bowers, Jr. on the brief and orally), for plaintiff, Isabella F. Rubert Tosco.

Hall, Morse, Anderson & Miller, P.C., Concord (G. Wells Anderson on the brief and orally), for defendant, Kennedy F. Rubert, III.

THAYER, Justice.

The defendant, Kennedy F. Rubert, III, appeals the decision of the Merrimack County Probate Court (Cushing, J.) awarding half of the decedent's New Hampshire estate to the plaintiff, Isabella F. Rubert Tosco, pursuant to the New Hampshire pretermitted heir statute. RSA 551:10 (1974). The defendant contends that the probate court's determination of domicile and application of New Hampshire's pretermitted heir statute was error. We reverse the finding that the decedent was domiciled in New Hampshire and affirm the application of the pretermitted heir statute to the New Hampshire real property.

The decedent, Kennedy F. Rubert, Jr., and his wife, Florence, moved to Dunbarton in 1980. Their daughter, the plaintiff, lived next door. Their son, the defendant, lived in Virginia. The decedent and his wife made several extended trips to Virginia to visit their son and for Mrs. Rubert to see her doctors. In January 1987, the decedent leased a unit in a retirement facility in Virginia for himself and his wife.

Florence Rubert died on January 28, 1987. On February 2, the decedent leased a unit for himself in a different retirement facility in Virginia. On February 5, he spoke with a Virginia attorney about creating an inter vivos trust for the benefit of his daughter and making a new will that would leave everything to his son. Because the decedent was planning a trip to New Hampshire before the attorney would have the new will ready, he drafted and executed a handwritten will leaving everything to his son. On February 18, he returned to New Hampshire, where he died on February 20.

The defendant submitted the handwritten will for probate in Virginia on March 6, 1987. The plaintiff appealed the clerk's order permitting probate of the will to the Circuit Court of the City of Richmond, alleging that the decedent was domiciled in New Hampshire and that the Virginia court lacked jurisdiction to probate the will. The plaintiff and the defendant each put on evidence, and the circuit court found, by final order of November 29, 1988, that the decedent was domiciled in Virginia, that jurisdiction and venue were proper, and that the will was valid. The plaintiff's appeal to the Supreme Court of Virginia was dismissed for procedural reasons.

Before the Virginia litigation had commenced, the plaintiff notified the Merrimack County Probate Court that she would likely challenge any attempt at ancillary probate under the Virginia will. The defendant filed the will in Merrimack County in December 1989, requesting that the probate court recognize the handwritten will as a valid foreign will, and that the Virginia determination of domicile be given full faith and credit. The plaintiff contested the will, and the findings of the circuit court were relitigated. In September 1993, the probate court found that the decedent was domiciled in New Hampshire at the time of his death, and that the plaintiff was entitled, under our pretermitted heir statute, to one-half of all of the decedent's real and personal property located in New Hampshire at the time of his death.

On appeal, the defendant argues that: (1) the Virginia determination of domicile is entitled to full faith and credit under article IV, section 1 of the United States Constitution; (2) the probate court's finding of domicile in New Hampshire is not supported by the evidence; and (3) New Hampshire law should not apply to the distribution of the decedent's New Hampshire real property because the result would be contrary to the decedent's intent.

I. Domicile

The defendant argues that the probate court erred in refusing to grant full faith and credit under article IV, section 1 of the United States Constitution to the Virginia court's determination of domicile. We agree. The final judgment of a court of competent jurisdiction is entitled to the same faith and credit as to the parties before it as it has in the state of issuance. See Wilson v. Shepard, 124 N.H. 392, 394, 469 A.2d 1359, 1360 (1983).

Whether a decision is final depends on whether it is subject to collateral attack in the state of decision. See V & V Corp. v. American Policyholders' Ins. Co., 127 N.H. 372, 375, 500 A.2d 695, 697-98 (1985). The plaintiff has offered no proof that a determination of domicile is subject to collateral attack in Virginia. It appears that the plaintiff's only remedy in Virginia would be a direct attack in the form of an appeal to the Virginia Supreme Court. The plaintiff's appeal was refused because she failed to comply with the appropriate transcript requirements. The fact that the plaintiff's Virginia appeal was refused on procedural grounds does not give her the right to relief in a New Hampshire court. See Wilson v. Shepard, 124 N.H. at 396, 469 A.2d at 1361. Even incorrect determinations of law may not be collaterally attacked in another state if they could not be so challenged in the state of decision. See id.

The plaintiff does not argue that she was denied an opportunity to fully and fairly litigate the issue of domicile in Virginia. The full faith and credit clause prevents parties from relitigating factual issues properly determined by an appropriate forum in a sister state. See Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186 (1963).

We therefore find that the Virginia determination of domicile is valid and final as to the plaintiff and merited full faith and credit in our probate court. Accordingly, we reverse the probate court's finding that the decedent was domiciled in New Hampshire. Because we hold that the...