Cass v. Ray

• Decision Date: 07 April 1989
• Docket Number: No. 88-100,88-100
• Citation: 556 A.2d 1180,131 N.H. 550
• Parties: Hazel E. CASS v. George T. RAY, Jr., Executor of the Estate of Clarence L. Esty.
• Court: New Hampshire Supreme Court

Page 1180

556 A.2d 1180

131 N.H. 550

Hazel E. CASS v.George T. RAY, Jr., Executor of the Estate of Clarence L. Esty.

No. 88-100.

Supreme Court of New Hampshire.

April 7, 1989.

Hall, Morse, Gallagher & Anderson, Concord (Charles P. Bauer, on the brief and orally), for plaintiff.

Upton, Sanders & Smith, Concord (Ernest T. Smith, III, on the brief and orally), for defendant.

JOHNSON, Justice.

The defendant, Attorney George Ray, executor of the Estate of Clarence L. Esty(the estate), appeals a decision by the Superior Court(Groff, J.) granting the plaintiff, Hazel Cass(Mrs. Cass), an extension of time in which to file suit against the estate.We hold that the superior court erred in granting Mrs. Cass an extension under RSA 556:28 and therefore reverse and remand.

In 1975, following his wife's death, Clarence Esty, then 82, asked Mrs. Cass, a 71-year-old widow and long-time friend to Mr. Esty and his wife, to stay with him at his home in Hebron.From 1975 until his death in February 1986, Mrs. Cass lived with Mr. Esty in Hebron as his housekeeper and companion.She cooked for him, cleaned his clothes and house, paid his bills, and arranged for medical care when he needed it.At the hearing on her petition to extend time, Mrs. Cass testified that, after she had spent a year as his housekeeper and companion, Mr. Esty promised to leave her a life estate in the Hebron home and sufficient money to care for her during her lifetime if she would continue in that position.She then sold the mobile home in Exeter where she had previously lived.

Mr. Esty died testate on February 12, 1986.On February 24, 1986, the Grafton County Probate Court appointed Attorney Ray executor of the estate.Mr. Esty's will provided Mrs. Cass $10,000 in cash and the right to use the Hebron home and its furnishings during her lifetime, with the stipulation that she pay taxes, insurance, and upkeep while she resided there.

Unhappy with this bequest, Mrs. Cass consulted her former counsel(a member of a firm other than the one she now retains), who agreed to represent her in an action against the estate.On March 27, 1986, this attorney filed notice of claim and demand with the executor pursuant to RSA 556:3.However, he did not file suit against the estate until June 1, 1987, more than three months after the one-year deadline established by RSA 556:5.On June 22, 1987, former counsel's firm therefore filed a petition pursuant to RSA 556:28 to extend the time in which to bring suit.The petition alleged that the reason for late filing was Mrs. Cass' inability to travel during the winter.At a subsequent evidentiary hearing, however, Mrs. Cass, represented by present counsel, stated that she traveled when her attorneys needed her.Her former counsel testified that suit was not filed within the required time because his office had "failed to get [the case] on an appropriate tickler system."Attributing all responsibility to his firm, he himself conceded that the failure to file timely suit constituted what he deemed to be "culpable neglect."The superior court nevertheless granted the petition for late filing.This appeal followed.

We recently detailed the requirements of RSA chapter 556 in Stewart v. Farrel, 131 N.H. 458, ----, 554 A.2d 1286, 1288(1989).As we noted there, estate creditors must file notice of claim and demand with an estate's executor or administrator within six months of the grant of administration, RSA 556:3, and must file suit against the estate within the following six months.RSA 556:1, :5.Creditors who fail to meet either of these deadlines may petition the superior court for an extension pursuant to RSA 556:28.Emerson's Sons v. Cloutman, 88 N.H. 59, 61, 184 A. 609, 610(1936).Petitions must set forth facts sufficient to show that justice and equity require the requested extension and that failure to file timely notice or suit was not the result of culpable neglect.RSA 556:28;seeEmerson's Sons, supra at 62, 609 A. at 611.

In this case, the superior court found that justice and equity required an extension since there was only a three-month delay in filing suit.The court further determined that Mrs. Cass' former counsel was guilty of "simple," rather than "culpable," neglect in failing to file timely suit.Finally, it held that, even if her former counsel was guilty of culpable neglect, this neglect was not attributable to Mrs. Cass.

On appeal, the executor contends that Mrs. Cass failed to show lack of culpable neglect.He argues that: (1)she and her former counsel agreed at the hearing that the reason for delay was not her inability to travel during the winter, but a "slip-up" in his office; (2) this indicates a "lack of due diligence" on the part of former counsel and brings the reason for failure to file suit within the definition of culpable neglect; and (3) culpable neglect on the part of her attorney, while acting within the scope of his employment, is attributable to Mrs. Cass.

Mrs. Cass responds that the evidence supports the superior court's factual findings with regard to both "justice and equity" and "culpable neglect" and that, in any case, RSA 556:28 specifically looks to the culpable neglect of the claimant alone, and not to that of her attorney.Furthermore, she argues, RSA chapter 556 cannot constitutionally be applied to deprive her of her claim against the estate because it fails to provide actual notice of filing deadlines to reasonably ascertainable creditors and because its requirements are expressed in a way so convoluted that creditors of ordinary intelligence cannot understand them.

For purposes of RSA 556:28, we have long defined culpable neglect as follows:

" ' "It is less than gross carelessness, but more than the failure to use ordinary care, it is a culpable want of watchfulness and diligence, the unreasonable inattention and inactivity of 'creditors who slumber on their rights.' " 'It exists '[i]f no good reason, according to the standards of ordinary conduct, for the dormancy of the claim is found.' "

Coffey v. Bresnahan, 127 N.H. 687, 693, 506 A.2d 310, 314(1986)(citations omitted).In describing what constitutes "good reason, according to the standards of ordinary conduct, for the dormancy of the claim,"we have further stated that " ' "culpable neglect" would seem to convey the idea of neglect for which [the claimant] was "to blame"; that is, the neglect which exists where the loss can fairly be ascribed to his own carelessness, improvidence or folly.' "Mitchell v. Smith, 90 N.H. 36, 38, 4 A.2d 355, 358(1939)(quotingWaltham Bank v. Wright, 90 Mass. 121, 122(1864)).Whether conduct in a particular case constitutes culpable neglect is a question of fact for the trial court.See, e.g., Sullivan v. Bank, 99 N.H. 226, 228, 108 A.2d 553, 555(1954);Emerson's Sons, 88 N.H. at 62, 184 A. at 611.Like...