Glover v. Baker

• Citation: 76 N.H. 393,83 A. 916
• Parties: GLOVER v. BAKER et al.
• Decision Date: 07 May 1912
• Court: Supreme Court of New Hampshire

83 A. 916

76 N.H. 393

GLOVER

v. BAKER et al.

Supreme Court of New Hampshire. Merrimack.

May 7, 1912.

Transferred from Superior Court, Merrimack County; Wallace, Chief Judge.

Bill by George W. Glover against Henry M. Baker, executor, and others. The bill was demurred to, and the case transferred without a ruling. Bill ordered dismissed, and case discharged.

Bill in equity, brought by George W. Glover, for the construction of the will of his mother, Mary G. B. Eddy, and for advice as to the validity of certain provisions thereof. The defendants are the executor, Henry M. Baker, and five residents of Massachusetts, who constitute the board of directors of the First Church of Christ, Scientist, in Boston. The Attorney General, claiming for the state by escheat, George W. Baker, a nephew of the testatrix, John B. Baker, her grand-nephew, and George W. Glover, Jr., a son of the plaintiff, were given leave to intervene. Transferred from the April term, 1911, of the superior court upon demurrer, without a ruling, by Wallace, C. J., who also of his own motion transferred the question whether the bill can be maintained, and, if so, upon what grounds, in case such question is not properly presented by the demurrer.

For disposition of plaintiff's motion to remand, see 76 N. H. 261, 81 Atl. 1081.

Hannis Taylor and William L. Chambers, both of Washington, D. C, Herbert Parker and John D. Long, both of Boston, Mass., William E. Chandler and De Witt C. Howe, both of Concord, and John W. Kelley, of Portsmouth, for plaintiff.

Taggart, Tuttle, Burroughs & Wyman, of Manchester, for intervener George W. Baker.

William A. J. Giles, of Concord, for intervener John B. Baker.

Remick & Jackson, of Concord, for intervener George W. Glover, Jr.

Edwin G. Eastman, Atty. Gen., Robert L. Manning, Special Counsel, of Manchester, and Joseph S. Matthews, of Concord, for the State.

Elder, Whitman & Barnum, William A. Morse, and Leon M. Abbott, all of Boston, Mass., and Streeter, Demond & Woodworth, of Concord, for defendants.

PARSONS, C. J. Mary Baker Eddy died December 3, 1910. On the 14th of that month her will was duly probated in this county. The defendant Baker has been appointed executor and has qualified by giving bond. January 12, 1911, the plaintiff, a son of the deceased, commenced this proceeding against the executor and five persons alleged to be the directors of the First Church of Christ, Scientist, in Boston, Mass. The plaintiff in his bill (or petition, as he names it) alleged the above facts, argumentatively stated that the property of the deceased exceeds $2,000,000 in value, and alleged that the will attempts to dispose of the great bulk of the estate by gifts to said church, or its directors, directly and in trust, and attacked the validity of the clauses of the will making such gifts. The prayer of the bill is for the advice of the court as to the true construction, meaning, and effect of the will, and the right of the plaintiff to receive any of the property which the will attempts to dispose of by the clauses attacked. The defendants demurred, pleaded in bar, and answered. It does not appear from the record which has been sent to this court that there has been any joinder on, or answer to, the various pleadings. There is no replication to the answer. The case has not been set for hearing upon the bill and answer, or for argument upon the plea. The only progress in the superior court appears to have been a motion by the plaintiff for a hearing upon the demurrer.

Whether all or a part of the issues in an action shall be tried at one time, and the order in which they shall be tried if determined separately, is a question of justice and convenience, usually settled by the superior court. Owen v. Weston, 63 N. H. 599, 4 Atl. 801, 56 Am. Rep. 547; Glover v. Baker, 76 N. H. 261, 81 Atl. 1081. Although the defendants' plea presented matter claimed to bar the plaintiff from making any claim to his mother's estate, in the situation of the case the superior court was of the opinion that the progress of the cause would be advanced by first securing a final determination of the questions of law raised by the demurrer, and transferred those questions to this court, with the suggestion that if the defendants' demurrer does not raise the question whether the bill can be maintained, and, if maintainable at all, upon what grounds it may be maintained, those questions were specially reserved by the presiding justice of his own motion. The power of the court to make such a transfer has already been determined. Glover v. Baker, 76 N. H. 261, 81 Atl. 1081.

No ground appears upon which to question the ruling as a finding of fact of proper procedure, even if upon portions of the pleadings other questions were presented to the trial court for decision. The defendants' plea went merely to the maintenance of this action by the plaintiff. It did not support the validity of the bequests. The plaintiff concedes that, if the bequests are lawful, he has barred himself from questioning the will. If the bequests are unlawful, such as the law will not permit to be carried Into effect, whether in that case the plaintiff is or is not entitled to share in the estate thereby left undisposed of by the will is a question between him and the other parties who have been permitted to join in the litigation—the more remote heirs of Mrs. Eddy and the state. Especially in view of the claim of escheat now made by the state, is it clear that the validity of the bequests must at some time be determined. If they are valid, the litigation is ended. If they are invalid, the legatees have no further interest in the cause.

The question transferred is the right of the plaintiff to maintain the bill, and that is the only question transferred. The prayer of the bill is for advice as to the plaintiff's rights. The defendants demur, for the reason that it appears on the face of the bill that the plaintiff does not occupy any fiduciary position entitling him to the advice and direction of a court of equity. The only parties who can call on the court for advice are those in a fiduciary position. Questions are prospectively determined by a court of equity only in behalf of trustees who in the execution of a trust are entitled to its protection. Greeley v. Nashua, 62 N. H. 166, 167; Ellis v. Aldrich, 70 N. H. 219, 222, 47 Atl. 95; Bailey v. McIntire, 71 N. H. 329, 52 Atl. 446; Drake v. True, 72 N. H. 322, 56 Atl. 749; Harvey v. Harvey, 73 N. H. 106, 59 Atl. 621.

The plaintiff is not a trustee, nor is he a beneficiary of the trusts attempted to be created by the will, nor does he ask in terms that a trust be declared for his benefit in the property in question. He is not entitled to the advice of the court. The defendants did not insist upon this objection in argument, but appear to concede in the brief, and in fact did concede in oral argument, that if the plaintiff might have an interest in the estate he could require a construction of the will. The plaintiff claims in his brief that "there can be no possible question either as to the jurisdiction of the superior court or as to the form of the bill in the present case." But while, in view of the attitude of the parties to the cause, the court may perhaps properly proceed to the consideration of the validity of the questioned clauses of this will, an examination of the cases cited by the plaintiff does not so clearly sustain the proposition above quoted that the question can properly be passed without some consideration. The procedure in this case ought not to be permitted to stand as authority for the proposition that immediately upon his appointment an executor can be dragged into court and compelled to litigate against his will questions which certainly cannot arise until the estate is ready for distribution, unless it is clear such is the law.

When questions as to the meaning or validity of the clauses of a will come before a court in the exercise of its ordinary jurisdiction, such an instrument is construed as part of the determination of the cause. But this does not require the court to advise every one who may think he has an interest under or adverse to a will or other instrument. The only case of similar procedure found in this state is Haynes v. Carr, 70 N. H. 463, 484, 49 Atl. 638. In that case the executors filed an answer, which they asked to have considered as a cross-bill, asking the advice of the court, and the case was disposed of by ordering the dismissal of the plaintiffs' bill, with a decree advising the executors.

In Bowers v. Smith, 10 Paige (N. Y.) 193, it is said, in substance as quoted in the plaintiff's brief: "An executor takes the legal estate in the personal property of the testator as trustee for the legatees or next of kin; and the court of chancery having general jurisdiction in cases of trusts, any person having an interest in such property, either as a legatee or distributee of the decedent, may file a bill in that court against the executor, to have the construction of the will settled, or to have the question as to the validity of any of its provisions determined, so far as concerns the interest of the complainant in the property, and to have a decree against such executor for such parts or portions of the property as he is legally and equitably entitled to receive." This statement was not involved in the decision of the case, but was merely "asserted by the chancellor." Read v. Williams, 125 N. Y. 560, 566, 26 N. E. 730, 21 Am. St. Rep. 748. The New York cases are in conflict, and the jurisdiction appears finally to be rested upon the provisions of the Code. Read v. Williams, supra. See Wager v. Wager, 89 N. Y. 161; Horton v. Cantwell, 108 N. Y. 255, 267, 15 N. E. 546.

The correct rule, in the absence of statute, which is followed here, is set forth in Chipman v. Montgomery, 63 N. Y. 221, 230: "The plaintiffs, as heirs at law and next of kin claiming in hostility to the...