Gay's Estate, In re

• Decision Date: 02 July 1951
• Citation: 97 N.H. 102,81 A.2d 841
• Parties: In re GAY'S ESTATE. (Two Cases).
• Court: New Hampshire Supreme Court

Page 841

81 A.2d 841

97 N.H. 102

In re GAY'S ESTATE. (Two Cases).

Supreme Court of New Hampshire.

July 2, 1951.

Robert E. Earley, Nashua, for the administrator, furnished no brief.

JOHNSTON, Chief Justice.

A preliminary question to be decided is whether the probate court has jurisdiction to entertain a petition for advice and instructions. If it has not such jurisdiction then it has no authority to transfer questions under chapter 90, Laws 1947 and any advice given is without binding effect.

Objection to jurisdiction over the subject matter may be taken at any time and under the circumstance of such lack the court will act on its own motion. 'Whenever it appears that a court has no jurisdiction of the subject-matter of the suit, the proceeding is dismissed, even if no objection is made.' Burgess v. Burgess, 71 N.H. 293, 51 A. 1074, 1075. See also, Straw's Petition, 78 N.H. 506, 102 A. 628.

The authorities are not unanimous as to the jurisdiction of probate courts. 'Accordingly, many authorities have held that probate courts are courts of limited or special jurisdiction and, being inferior courts, cannot take jurisdiction or administer remedies except as provided by statute.' 14 Am.Jur. 252.

In this State it has been held that the probate courts have not general jurisdiction but are limited to such powers as are conferred upon them by statute. 'The jurisdiction of such courts is limited (Pub.Laws, c. 293 [now R.L. c. 346]), and they have not been clothed with general equitable powers, even with reference to those fiduciaries who are appointed by them.' Wentworth v. Waldron, 86 N.H. 559, 561, 172 A. 247, 249. This view of limited powers is expressed in Hayes v. Hayes, 48 N.H. 219, 229, 230 as follows: 'The general policy of the law in this State has been to confine the contentions jurisdiction of the probate courts within narrow limits, leaving the practice there to be simple and generally free from such difficulty as would require the attendance of counsel and the expense of protracted trials. * * * The position here taken by the appellees involves the claim of general jurisdiction over trust funds created by will. Jurisdiction over such trusts is conferred by the statute in express terms on the supreme judicial court. If, in this case, the probate court has power to enforce the trust according to the intent of the donor, it must have it in every other trust created by will. If the legislature intended to grant the probate court concurrent jurisdiction over these trusts with the supreme court, they would not, we think, have left their intention to be inferred from a single doubtful expression in a statute whose general object was entirely different; but would have conferred the authority in plain and explicit terms.'

In Rockwell v. Dow, 85 N.H. 58, 66, 154 A. 229, 233, a distinction was drawn between jurisdiction of the probate courts and that of the Superior Court. 'The general line separating probate jurisdiction from that of the superior courts is not difficult of ascertainment. The distinction is that between things which are 'incident to the business of conducting the administration' and 'a settlement with the judge of probate' concerning administration already had. Patten v. Patten, 79 N.H. 388, 392, 393, 109 A. 415.' On page 67 of the same opinion, it was indicated that jurisdiction over petitions for advice and instructions was in the Superior Court and not in the probate courts. 'If the probate court has jurisdiction to construe a will or deed of trust, as an incident of...