Byrne's Estate, In re
| Decision Date | 30 October 1953 |
| Citation | 100 A.2d 157,98 N.H. 300 |
| Parties | , 47 A.L.R.2d 591 In re BYRNE'S ESTATE. |
| Court | New Hampshire Supreme Court |
John W. King, Manchester, for administrator with will annexed, by brief and orally, as amicus curiae.
Efrain G. Sanchez, Manchester, guardian ad litem, filed no brief.
Questions of law which may be certified to this court by a probate court under Laws 1947, c. 90, are those as to which instructions are desired by that court in order that it may make a 'proper decision of matters duly before it in proceedings coming within its statutory jurisdiction.' In re Estate of Gay, 97 N.H. 102, 105, 81 A.2d 841, 843. In so far as any questions so certified seek instructions as to the numerous matters which may arise in the 'settlement and final distribution of estates of deceased persons', R.L. c. 346, § 3, or are concerned with such specific matters as the distribution of 'personal estate bequeathed by a testator', R.L. c. 360, § 7, they involve matters within the statutory jurisdiction of that court. In re Harrington's Estate, 97 N.H. 184, 185, 84 A.2d 173; In re Mooney's Estate, 97 N.H. 187, 84 A.2d 175; In re Grondin Estate, N.H., 100 A.2d 160. Such matters are 'duly before' the probate court not only when a final account or a petition for a decree of distribution has been filed but also when it appears that a proper decision by that court will presently be required in regard thereto which cannot be made without instructions from this court. To the extent that the opinion in In re Estate of Gay, supra, more strictly limits the questions which may be so certified, it is overruled.
This is not intended to suggest that jurisdiction has been conferred upon probate courts to give advice or instructions upon petitions of fiduciaries, which come within the jurisdiction of the Superior Court. Duncan v. Bigelow, 96 N.H. 216, 218, 72 A.2d 497; Rockwell v. Dow, 85 N.H. 58, 154 A. 229.
The first question certified in this case concerns the validity of the trust sought to be established by the residuary clause of the will. Since it is apparent from the language of the will that there is no ascertainable beneficiary capable of coming into court and claiming its benefits, the validity of the trust depends upon a determination of whether 'the erection of a tomb on my family lot' is such a purpose as to qualify the trust as a charitable one. Clark v. Campbell, 82 N.H. 281, 282, 133 A. 166, 45 A.L.R. 1433; Tunis v. Dole, 97 N.H. 420, 424, 89 A.2d 760. We are of the opinion that in the circumstances of this case, the erection of a tomb such as the testatrix intended at the location specified would accomplish no public benefit and that the provisions of the residuary clause of the will failed to create a trust.
A tomb is defined as 'a house, chamber or vault, formed wholly or partly in the earth or entirely above ground, for the reception of the dead.' Webster's New International Dictionary, Second Edition. While the structure described by this word alone might simply be a cement vault buried in the lot such as would be permitted by the cemetery officials in this case, it can be fairly concluded from her directions that it be erected on the lot and the discretion granted to the trustee as to choice of material and architecture that the testatrix intended that the tomb for which she provided should be at least partly above ground and should serve not only as a place of burial for herself but as a monument to herself and her family.
A gift made with a direction that it be applied to the erection of such a tomb or monument does not ordinarily create a charitable trust. Restatement of Trusts, § 374, comment h. The public interest in the sightly appearance of cemeteries is served by a gift in trust for the perpetual care of a lot therein and such a gift has long been recognized in this state as a charitable one. Webster v. Sughrow, 69 N.H. 380, 381, 45 A. 139, 48 L.R.A. 100...
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