Estate of Norton, In re, 90-527

• Decision Date: 08 November 1991
• Docket Number: No. 90-527,90-527
• Parties: In re ESTATE OF Phyllis R. NORTON
• Court: New Hampshire Supreme Court

Page 138

599 A.2d 138

135 N.H. 62

In re ESTATE OF Phyllis R. NORTON

No. 90-527.

Supreme Court of New Hampshire.

Nov. 8, 1991.

McLane, Graf, Raulerson & Middleton P.A., Manchester (Bruce W. Felmly and Thomas W. Hildreth on the brief, and Bruce W. Felmly orally), for plaintiff, Randall D. Merchant.

Boynton, Waldron, Doleac, Woodman & Scott, P.A., Portsmouth (Ralph R. Woodman, Jr., and Francis X. Quinn, Jr., on the brief, and Francis X. Quinn, Jr., orally), for defendants, Nancy McFarland & a THAYER, Justice.

The plaintiff, the life tenant of real estate located in Gilsum, sought partition against the defendants, who hold the remainder interest in the property. The Cheshire County Probate Court (Espiefs, J.) denied the request. The issue on appeal is whether RSA 538:1 allows a life tenant in possession to compel partition against the holder of a remainder interest. We hold that it does not, and therefore affirm.

RSA 538:1 reads:

"One or more persons, having or holding real estate with others, in possession, reversion or remainder, may have partition thereof as in this chapter provided. And the petitioner may, at his election, make a tenant for life or for years, or a tenant by the curtesy of the entire real estate or any part thereof, or whoever may be entitled to a contingent or vested remainder or reversion or any executory interest in the entire real estate or any part thereof, or any lien-holder on the entire real estate or any part thereof, a petitionee in the action. The holder in possession of a fee simple interest in such real estate may have partition, irrespective of the class or duration of the estate of any petitionee named in the action."

(Emphasis added.) This statute was last amended in 1949, when the third sentence was added to the first two. See Laws 1949, 266:1.

The first two sentences of the statute permit compulsory partition only among persons holding estates of the same class. Brierley v. Brierley, 81 N.H. 133, 137, 124 A. 311, 314 (1923); see also Coleman v. Coleman, 94 N.H. 456, 458, 55 A.2d 471, 472 (1947). The plaintiff and the defendants here hold estates of different classes. Therefore, the plaintiff is not entitled to partition unless the third sentence of RSA 538:1 allows it. See Putnam v. Davis, 103 N.H. 121, 123-24, 166 A.2d 469, 471 (1960).

The plaintiff admits that the plain words of the third sentence, "holder in possession of a fee simple interest," by themselves preclude him from obtaining relief, because he holds a life estate in the property, not a fee simple interest. He argues, however, that this court's dicta in Putnam v. Davis supra and Bartlett v. Bartlett, 116 N.H. 269, 357 A.2d 460 (1976), as well as public policy, require us to ignore those words.

First, we examine the dicta. Both cases were decided after the addition of the last sentence of RSA 538:1, and both unambiguously state that a life tenant is entitled to partition against holders of a remainder interest. Putnam v. Davis, supra 103 N.H. at 124, 166 A.2d at 472; Bartlett v. Bartlett, supra 116 N.H. at 273, 357 A.2d at 463. These statements, however, were unrelated to the issues before the court and irrelevant to its holdings. In Putnam v. Davis, the issue was whether remaindermen could compel partition against a life tenant. The court held that they could not, because they were not "in possession," as required by RSA 538:1. Putnam v. Davis, 103 N.H. at 124, 166 A.2d at 471-72. In Bartlett v. Bartlett, the life tenants brought a partition petition against the remaindermen, and both parties happened to be entitled to possession of portions of the property. The issue on appeal was not whether the petition should have been granted, but whether the proceeds of the property's sale were...