Duncan v. Bigelow

• Decision Date: 04 April 1950
• Parties: DUNCAN v. BIGELOW et al.
• Court: New Hampshire Supreme Court

Page 497

72 A.2d 497

96 N.H. 216

DUNCAN v. BIGELOW et al.

Supreme Court of New Hampshire.

April 4, 1950.

John R. Spring, Nashua (by brief), for the plaintiff.

The defendants entered no appearances.

JOHNSTON, Chief Justice.

A preliminary question arises concerning the right of the administrator to have the will construed. It was held in Podrasnik v. Rochester Trust Company, 92 N.H. 65, 24 A.2d 493, that the sole procedure for an executrix who desired a will construed for purposes of distribution was 'to file an account of her settlement of the estate accompanied with a petition for a decree of distribution of the balance found in her hands upon the settlement.'

It is true that whether a court of equity will advise or direct is a matter of discretion. 33 C.J.S., Executors and Administrators, § 147, p. 1109. In the present case the Superior Court has exercised its discretion in favor of the plaintiff and transferred for ruling so far as the plaintiff may be entitled as a matter of law the questions asked by him.

While the Probate Court has exclusive, original jurisdiction of decrees of distribution, R.L. c. 360, § 7, this does not prevent the Superior Court from giving advice to a fiduciary concerning his future handling of an estate. So far as the Podrasnik case holds otherwise, it is overruled. 'If the probate court has jurisdiction to construe a will or deed of trust, as an incident of its authority to pass upon accounts, or make a decree of distribution, it is not to be doubted that the superior court still has the frequently exercised power to advise a fiduciary as to the law governing his future conduct of the trust.' Rockwell v. Dow, 85 N.H. 58, 67, 154 A. 229, 234. This jurisdiction of the Superior Court is due to its equity powers. 'Matters affecting the conduct of fiduciaries which have not been definitely placed by statute within the exclusive jurisdiction of probate courts are still cognizable in equity.' Wentworth v. Waldron, 86 N.H. 559, 561, 172 A. 247, 249.

The following are some of the cases in which an executor (or adm'r w. w. a.) was given advice involving the construction of a will previous to the filing of a final account and a petition for a decree of distribution. Franklin National Bank v. Gerould 90 N.H. 397, 10 A.2d 257; McAllister v. Elliot, 83 N.H. 225, 140 A. 708; Blaisdell v. Coe, 83 N.H. 167, 139 A. 758, 65 A.L.R. 626; Glover v. Baker, 76 N.H. 393, 83 A. 916; Chase v. Moore, 73 N.H. 553, 64 A. 21; Gardner v. Gardner, 72 N.H. 257, 56 A. 316; Goodhue v. Clark, 37 N.H. 525. Moreover, a decree of direction and advice concludes the parties upon all points that were adjudicated. McAllister v. Elliot, supra.

It may be noted that Laws of 1947, c. 90 provides an alternative remedy which in certain cases may be more expeditious for ascertaining requested instructions.

The plaintiff, in his brief states: 'the real question at issue is the construction of the will with reference to the real estate and the contents of the house, which at the time of the testatrix's death had been converted into cash by the plaintiff as guardian and deposited in Savings Banks.' Do the proceeds pass under the third or the fourth paragraph of the will?

Although the authorities elsewhere are divided, it has been settled in this jurisdiction that the guardian of an insane or incompetent testator cannot convert the subject matter of a specific devise or bequest so as to work an ademption thereof. Morse v. Converse, 80 N.H. 24, 113 A. 214, 215. The conflict in authority is said to be due to the fact that some courts have ruled that the intention of the testator must control so that ordinarily there would be no ademption, while others have said that the true test is whether the property bequeathed remains in specie. 57 Am.Jur. 1090. Without considering evidence of intention other than...