Allaire Estate, In re

• Decision Date: 31 May 1961
• Citation: 171 A.2d 191,103 N.H. 318
• Parties: In re Wilfred D. ALLAIRE ESTATE.
• Court: New Hampshire Supreme Court

Page 191

171 A.2d 191

103 N.H. 318

In re Wilfred D. ALLAIRE ESTATE.

Supreme Court of New Hampshire.

Argued May 2, 1961.

Decided May 31, 1961.

Paul B. Urion, Rochester, Administrator of the estate of Wilfred D. Allaire (by brief and orally), as amicus curiae.

KENISON, Chief Justice.

Questions relating to the distribution of an estate which turn on the construction of a will, trust instrument or deed may be certified by the probate court to this court. RSA 547:30. In re Harrington Estate, 97 N.H. 184, 84 A.2d 173; In re Grondin Estate, 98 N.H. 313, 315, 100 A.2d 160; In re Woods Estate, 102 N.H. 59, 149 A.2d 865. In this case the lawful distribution of the proceeds of the probate estate necessarily depends on the proper construction of the deed to Wilfred D. Allaire and Mable Allaire. The basic question therefore is whether this deed created a joint tenancy or a tenancy in common in the Allaires or a sole ownership in Wilfred D. Allaire.

While the administrator in the present case has no right to seek any particular construction of the deed in issue (Bisson v. Gosselin, 90 N.H. 273, 275, 6 A.2d 766) he does have the privilege of making useful suggestions to the court. Blanchard v. Boston & M. Railroad, 86 N.H. 263, 266, 107 A. 158. This practice of filing a brief amicus curiae by a party in a fiduciary position is one that we have sought to encourage particularly in nonadversary proceedings of this nature. In re Grondin Estate, 98 N.H. 313, 315, 100 A.2d 160. This court is not averse to wisdom in any form, from any source, and does not hesitate to accept the benefit of briefs by amicus curiae in the proper construction of deeds and wills. See Llewellyn, The Common Law Tradition--Deciding Appeals 323 (1960); Comment, The Amicus Curiae, 55 Nw.U.L.Rev. 469 (1960).

RSA 477:18, as did P.L. c. 213, § 17, provides in part that a deed to two persons creates a tenancy in common rather than a joint tenancy 'unless it shall be expressed therein that the estate is to be holden by the grantees * * * as joint tenants, or to them and the survivor of them, or unless other words are used clearly expressing an intention to create a joint tenancy.' The objective of this statute '* * * is not to forbid or prevent the creation of estates in joint tenancy, but to make certain that effect is given to the intention of the grantor.' Roaf v. Champlin, 79 N.H. 219, 221, 107 A. 339, 340. It has been the consistent practice in this jurisdiction to give effect to the intent of the draftsman even though it may not have been expressed in the most articulate way. In re Lathrop Estate, 100 N.H. 393, 128 A.2d 199. 'If the intent to create a right of survivorship is expressed, it is to be given effect.' Burns v. Nolette, 83 N.H. 489, 496, 144 A. 848, 852 A.L.R. 1051. Written instruments in this state are construed liberally to effectuate their intent even though the end product may not be a model form. Therrien v. Therrien, 94 N.H. 66, 46 A.2d 538, 166 A.L.R. 1023; Basye, Clearing Land Titles, § 278, note 16 (1953). The technical common-law rules of construction are not followed in this state and it 'has been many years since the technicalities of real estate conveyancing have been much regarded here.' Newmarket Mfg. Co. v. Nottingham, 86 N.H. 321, 324, 168 A. 892, 895. This viewpoint is reflected in part in the title examination standards adopted by our Bar Association. Thus it is provided in B-10 as follows: 'A deed by 'A' to 'A' and 'B' as joint tenants, will create a joint tenancy.' 9 Proc.Bar Assoc. of N.H. (new series no. 3) p. 16 (1954).

The phraseology used in various parts of this deed is not the work of an expert in conveyancing but we do not penalize the parties if their expressed intent is reasonably ascertainable. North Hampton School District v. Hampton Society, 97 N.H. 219, 220, 84 A.2d 833; Mulvanity v. Nute, 95 N.H. 526, 68 A.2d 536. In Gagnon v. Pronovost, 96 N.H. 154, 71 A.2d 747, it was held that a joint...