Dumaine, In re

• Decision Date: 06 December 1991
• Docket Number: No. 90-176,90-176
• Citation: 135 N.H. 103,600 A.2d 127
• Parties: In re Frederic C. DUMAINE, et al.
• Court: New Hampshire Supreme Court

Page 127

600 A.2d 127

135 N.H. 103

In re Frederic C. DUMAINE, et al.

No. 90-176.

Supreme Court of New Hampshire.

Dec. 6, 1991.

Devine, Millimet & Branch P.A., Manchester (Joseph A. Millimet, on the brief and orally), and Dechert Price & Rhoads, of Boston, Mass. (Alan L. Lefkowitz and Alicia Reines-Leo, on the brief), for the petitioners, Frederic C. Dumaine & a., Trustees.

McLane, Graf, Raulerson & Middleton P.A., Manchester (Charles A. DeGrandpre, orally and on the brief and Mark C. Rouvalis on the brief), for Lael Elizabeth Dumaine Fuhs and Peter Thomas Dumaine.

Wiggin & Nourie, Manchester (Mark A. Langan and Dort S. Bigg on the brief), and Cadwalader, Wickersham & Taft, New York City (William Schwartz, on the brief and orally), for Elizabeth Ann Charney.

Robert A. Backus, Manchester, guardian ad litem for unknown beneficiaries, filed no brief.

BATCHELDER, Justice.

Elizabeth Ann Charney appeals the ruling of the Superior Court (Pappagianis, J.) that she is not a member of the class of "legitimate" beneficiaries of the Dumaines and Dumaines New Fund trusts. She raises five issues on appeal. First, she argues that the trial court erred in its construction of the term "legitimate" as "lawfully begotten, born in wedlock." Second, she asserts that the trial court improperly relied on depositions containing inadmissible hearsay in determining the settlor's intent. Third, she maintains that, even though she was adopted, the subsequent marriage of her natural parents and their recognition of her as their child qualifies her as a beneficiary under the language of the trusts. Fourth, she argues that the trial court's determination of the settlor's intent was impermissible State action, violative of her rights under the equal protection and due process clauses of the United States and New Hampshire Constitutions. Finally, she contends that the trial court erred when it denied her request for attorney's fees. For the reasons that follow, we affirm.

The patriarch of the Dumaine family business complex was Frederic C. Dumaine, Sr., who founded the Amoskeag Company and amassed the wealth that formed the res of the trusts involved in this litigation. Dumaines, a New Hampshire trust, was created by Frederic, Sr. in 1920. The Dumaines declaration of trust provides for income to be distributed "to legitimate children of Frederic C. Dumaine or to their legitimate surviving children," and provides for the distribution of the trust principal "to and among the legitimate issue or lineal descendants of the children of Frederic C. Dumaine living at that time."

Dumaines New Fund, also a New Hampshire trust, was created in 1955. The Dumaines New Fund declaration of trust provides for income to be distributed to "legitimate children ... of Frederic C. Dumaine, Sr.... and ... to the legitimate issue ... of any such children deceased," and provides for the distribution of the trust principal "to the legitimate issue of Frederic C. Dumaine, Sr."

On January 19, 1956, Elizabeth Ann Charney was born to Evelyn Lafferty Richardson Humphreys, who was unmarried at the time. Pierre Dumaine, a son of Frederic C. Dumaine, Sr., was the father. At the time of the birth, however, Pierre Dumaine was married to Margaret Lael Edwards Dumaine, by whom he had two children, Peter Thomas Dumaine and Lael Elizabeth Dumaine Fuhs.

Evelyn Humphreys placed the baby for adoption immediately after she was born, and the child was adopted by John and Nelda Scudder of Brooklyn, New York, in 1957. Pierre and Margaret Edwards Dumaine were divorced in 1961. Pierre and Evelyn Humphreys were married six days later. In 1978, John Scudder contacted the attorney who had facilitated the adoption and stated that his daughter, seeking to determine her roots, wanted to locate her biological parents. She was then twenty-two years old, married, and the mother of one son. She was subsequently reunited with her biological parents and, during the next nine years, visited with them on three other occasions and attended their funerals.

The trustees of the Dumaines and Dumaines New Fund trusts sought a determination by the superior court of the class of beneficiaries entitled to distributions of income and principal under the trusts, and specifically of the rights of Elizabeth Ann Charney under those trusts. The superior court ruled that Charney was not a beneficiary of the trusts, because she was not "lawfully begotten, born in wedlock." This appeal followed.

At the outset, we must determine which jurisdiction's law controls the interpretation of the terms of the trusts. Charney argues that New York law should be applied, because it is the State where the birth, adoption, and initial acts of recognition occurred and, therefore, has significant relevant policy considerations to be preserved and protected. In this case, both trusts specifically state that they are executed "in the State of New Hampshire and with reference to the laws thereof; and the rights of all parties and the construction and effect of each and every provision shall be subject to and construed according to the laws of said State." We will respect the settlor's intent that New Hampshire law should govern the trust instruments. See, e.g., In re Lykes Estate, 113 N.H. 282, 284, 305 A.2d 684, 685 (1973) (New Hampshire testamentary trust interpreted under Texas law, according to direction of testator); Restatement (Second) of Conflict of Laws §§ 268, 277 (1971). Moreover, this court has previously applied New Hampshire law in interpreting one of the trusts involved here. See Bartlett v. Dumaine, 128 N.H. 497, 523 A.2d 1 (1986). Consequently, we hold that New Hampshire law applies.

Charney first argues that the term "legitimate" is unambiguous and, as such, should be given its legal definition, which she contends is "to make lawful." We agree that the term is unambiguous, but reject Charney's proposed definition.

The definition of "legitimate" proffered by Charney, i.e., "to make lawful," applies only when the term is used as a verb. Indeed, the example employed in the definition of the verb "to legitimate" in Black's Law Dictionary 901 (6th ed.1990), "to place a child born before marriage on the legal footing of those born in lawful wedlock," is exactly what Charney is striving to do in this case. Because of the use of the term as an adjective in the trust documents, however, her efforts "to legitimate" her status must fail.

"In searching for the proper interpretation of words used in a written instrument, we require that the words and phrases be given their common meaning." In re Trust u/w/o Smith, 131 N.H. 396, 398, 553 A.2d 323, 324 (1988). The classes of beneficiaries entitled to distributions under these trusts are described alternatively as "legitimate children," "legitimate surviving children," "legitimate issue or lineal descendants," or "legitimate issue." In all instances, "legitimate" is used as an adjective; nowhere in the trust instruments is it employed as a verb. The term's common meaning as an adjective is found in Webster's Third New Dictionary 1291 (3rd ed.1961): "lawfully begotten: born in wedlock: having full filial rights and obligations by birth." Thus, a child whose parents were unwed at the time of his or her birth, regardless of the child's subsequent adoption or the intermarriage of his or her parents, is not "legitimate" under the term's common meaning and as the term is used in the trust documents.

Focusing on the phrase "legitimate issue or lineal descendants," which describes the ultimate takers of the trust assets upon termination of the Dumaines trust, Charney contends that, even if this court excludes her from the class of "legitimate issue," she is nevertheless entitled to take as a "lineal descendant." We agree with the trial court, however, that "legitimate" modifies both "issue" and "lineal descendants." A review of the trust instruments indicates that each reference to the beneficiaries includes the term "legitimate" as a modifier. This manifests the settlor's purpose to benefit only those of his descendants who are "legitimate." See Bartlett, 128 N.H. at 504, 523 A.2d at 6 (settlor's intent to be determined by the terms of the trust). Moreover, in the analogous principal distribution provision of the Dumaines New Fund trust, the distribution of assets on the trust's termination is directed to "legitimate issue;" the phrase "or lineal descendants" does not appear.

Charney also maintains that the trial court erred when it ruled that "legitimate" was ambiguous because it went outside the four corners of the document to determine the settlor's intent. She contends that, in doing so, the trial court erroneously considered inadmissible hearsay and improperly denied her a full evidentiary hearing. Because we hold that the term "legitimate" as employed in the trust documents is unambiguous and, as such, requires no parol...