Grondin's Estate, In re

• Citation: 100 A.2d 160,98 N.H. 313
• Parties: In re GRONDIN'S ESTATE.
• Decision Date: 30 October 1953
• Court: Supreme Court of New Hampshire

Page 160

100 A.2d 160

98 N.H. 313

In re GRONDIN'S ESTATE.

Supreme Court of New Hampshire.

Submitted Oct. 6, 1953.

Decided Oct. 30, 1953.

SYLLABUS BY THE COURT

The certification by the probate court to the Supreme Court of questions relating to the incidence of the state inheritance tax on legacies and devises in wills is proper where both the probate court and the executor are in doubt and it is impossible to make an accurate distribution of the estate until the will has been construed.

Briefs of fiduciaries upon certified questions to the Supreme Court by the probate court may properly be furnished as amicus curiae to make useful suggestions to the court.

In the absence of a definite provision in the will, express or implied, the legacy and succession tax imposed by R. L., c. 87, as amended, is to be deducted from each legacy or devise or collected from the legatee or devisee by the executor and paid over to the State.

The legacy and succession tax (R. L., c. 87, as amended) is levied upon the interest of the legatee or distributee.

The use of the word "taxes" in the preamble of a will in the following manner "After the payment of my just debts, funeral charges and expenses of administration, taxes, I dispose of my estate as follows " does not sufficiently indicate a testamentary intention that the legacy and succession tax (R. L., c. 87) shall be paid out of the residuary clause rather than a proportionate charge against each legatee and devisee.

Certification, of a question of law to the Supreme Court by the probate court of Strafford County pursuant to R.L. c. 346, § 29, as inserted by Laws 1947, c. 90.

The testatrix, a single woman, died in 1953 leaving a will dated July 8, 1949. The will was not drawn with legal advice although it is known that the testatrix was furnished with a suggested draft of a will by a layman having some experience with wills. The testatrix disposed of her personal estate totalling approximately $17,000 and her real estate valued at $12,000. She bequeathed $1,200 for masses for herself her sister and her brother in the second, third and fourth clauses of her will. The fifth and sixth clauses contain pecuniary legacies to a brother and sister, the seventh clause devised her homestead place to a brother and the eighth clause devised the residue to her surviving brothers and sisters. After the introductory statement of the will and prior to the first clause, which directed the executor to erect a suitable tombstone, appeared the following preamble: 'After the payment of my just debts, funeral charges and expenses of administration, taxes, I dispose of my estate as follows:'

The executor of the will filed a petition in the probate court for present partial distribution of the estate to the extent necessary to satisfy the legacies mentioned in clauses second, third and fourth and requested the probate court to instruct him as to the incidence of the state inheritance taxes as to these clauses of the will and also as to clauses fifth, sixth and seventh in view of the preamble of the will quoted above. All legatees and the devisee under the will joined in the petition. The probate court (Hardwick, J.) being in doubt as to the incidence of the inheritance tax in view of the language of the preamble of the will transferred the question pursuant to Laws 1947, c. 90.

Frank W. Peyser, Rochester, for executor filed a brief as amicus curiae.

The legatees and devisee filed no briefs.

KENISON, Chief Justice.

The principal question in this case is whether the word 'taxes' in the preamble of the will indicates a testamentary intention that the legacy and succession tax, R.L., c. 87, shall be paid by the estate out of the residuary clause or whether each legatee and the devisee shall pay his proportionate share of the tax. Before deciding the principal question two preliminary matters present themselves.

Since both the executor and the probate court were in doubt as to the incidence of the state inheritance tax on the legacies and devise in the will, it was impossible to make an accurate distribution of the estate, partial or final, until the will had been construed. For the reasons stated in In re Harrington's Estate, 97 N.H. 184, 84 A.2d 173, it is clear that the probate court had jurisdiction to certify this question to the Supreme Court. See also In re Mooney's Estate, 97 N.H. 187, 84 A.2d 175; In re Byrne's Estate, N.H., 100 A.2d 157.

Counsel for the executor recognized that he had no right to seek any particular construction of the will, Bisson v. Gosselin, 90 N.H. 273, 275, 6 A.2d 766, and accordingly his brief cites cases in other jurisdictions on both sides of the question. Therefore there is no reason to disregard his brief as was done in the Bisson case, but rather it has been treated as a brief of amicus curiae whose 'function is merely to make useful suggestions to the court.' Blanchard v. Boston & M. Railroad, 86 N.H. 263,...