In re Estate of Dow, 012021 NHSC, 2019-0752

Docket Nº:2019-0752
Opinion Judge:HANTZ MARCONI, J.
Party Name:IN RE ESTATE OF MARIE G. DOW
Attorney:Nadine M. Catalfimo, of Salem, on the brief, and Casassa Law Office, of Hampton (Lisa J. Bellanti on the brief and orally), for the petitioner. Tyler Pentoliros, of Haverhill, Massachusetts, on the brief and orally, for the respondent.
Judge Panel:HICKS, BASSETT, and DONOVAN, JJ., concurred.
Case Date:January 20, 2021
Court:Supreme Court of New Hampshire

IN RE ESTATE OF MARIE G. DOW

No. 2019-0752

Supreme Court of New Hampshire

January 20, 2021

Argued: September 22, 2020

10th Circuit Court-Brentwood Probate Division

Nadine M. Catalfimo, of Salem, on the brief, and Casassa Law Office, of Hampton (Lisa J. Bellanti on the brief and orally), for the petitioner.

Tyler Pentoliros, of Haverhill, Massachusetts, on the brief and orally, for the respondent.

HANTZ MARCONI, J.

The petitioner, Christopher Dow, appeals a decision of the 10th Circuit Court-Brentwood Probate Division (Weaver, J.) finding that he is not a pretermitted heir under his mother's, Marie G. Dow's, will. He argues that the probate division erred in failing to apply New Hampshire's pretermitted heir statute to her will, and that, under New Hampshire law, he is a pretermitted heir and, thus, entitled to his intestate share of his mother's estate. See RSA 551:10 (2019). The respondent, Leslie Dow, the testator's ex-daughter-in-law and primary beneficiary of her will, counters that the probate division properly applied Massachusetts' pretermitted heir statute to the will in accordance with the will's provision that "[the] estate is to be administered and enforced according to the laws of the Commonwealth of Massachusetts." See Mass. Gen. Laws Ann. ch. 190B, § 2-302 (West 2012). Following oral argument before a 3JX panel, the case was submitted to the full court for decision. See Sup. Ct. R. 12-D(2). We reverse and remand.

The following facts are supported by the record or are undisputed by the parties. Marie G. Dow executed her last will and testament on June 30, 2014. At that time, she was living in Massachusetts. She passed away on November 20, 2018, having moved to an assisted living facility in New Hampshire approximately a year earlier. Just prior to her death, she sold her real property in Massachusetts, and there is no dispute that her estate consists of only personal property. In addition to her son Christopher Dow and ex-daughter-in-law Leslie Dow, Marie G. Dow is survived by another son and her granddaughter. Her will provides, in pertinent part,

[ARTICLE] SECOND: All the rest, residue and remainder of my estate, real, personal and mixed, of which I may die, seized and possess, or to which I may be entitled at the time of my demise, wheresoever the same may be found (hereinafter called my "residuary estate"), I give, devise and bequeath to my daughter-in-law, LESLIE DOW . . . .

If LESLIE DOW fails to survive me, then I hereby give, devise and bequeath my estate to my granddaughter . . . .

. . . .

[ARTICLE] EIGHTH: I have intentionally omitted to mention, or to devise or bequeath or give anything of which I may die seized and possessed, or to which I may be in any way entitled at the time of my decease, to any person or persons other than those mentioned in this my last Will and Testament.

[ARTICLE] NINTH: My estate is to be administered and enforced according to the laws of the Commonwealth of Massachusetts.

After the testator's death, her attorney filed her will in Massachusetts "without seeking to open a probate of the estate" at that time. When one of the petitioner's attorneys "contacted the Clerk of the Essex Probate and Family Court, she was told that the will would be rejected because the death certificate indicated that the deceased died as a resident of New Hampshire." After unsuccessfully attempting to obtain the original will from the testator's attorney, the petitioner filed a petition for estate administration in the 10th Circuit Court-Brentwood Probate Division on January 29, 2019. The probate division declined to act on the petition "without the original will"; consequently, the petitioner filed a motion to require the respondent, or the testator's attorney, to file it with the probate division in New Hampshire. The respondent filed an objection to this motion, noting that she had filed a petition for informal probate in Massachusetts on January 11, and that the petition for formal probate of the estate was accepted in Massachusetts on February 7.

Following a hearing on April 22, 2019, the probate division found that the testator was domiciled in New Hampshire at the time of her death and that the "petition for estate administration was first filed in New Hampshire." Accordingly, the probate division found that it had jurisdiction to probate her estate, see RSA 547:8 (2019); see also RSA 21:6 (2012) (amended 2018), and ordered the respondent, or the testator's attorney, to file the original will with the New Hampshire probate division. The respondent filed a motion for reconsideration, which the probate division denied. The probate division granted the petitioner's petition for estate administration on August 27, 2019.

The petitioner filed a motion to determine that he is a pretermitted heir under his mother's will. The respondent objected. In its order dated October 21, 2019, the probate division found that the testator's will "fails to specifically name her son, Christopher, in any way." It determined that due to, inter alia, the language of Articles Eighth and Ninth of the will, Massachusetts' pretermitted heir statute should apply to the will, and that under Massachusetts law, see Mass. Gen. Laws Ann. ch. 190B, § 2-302, the petitioner is not a pretermitted heir. The petitioner filed a motion for reconsideration. The probate division denied the motion, and this appeal followed.

II

Our standard for reviewing probate division decisions is set forth by statute. See RSA 567-A:4 (2019). "The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made." In re Estate of Donovan, 162 N.H. 1, 3 (2011) (quotation omitted). Consequently, we will not disturb the probate division's decree unless it is unsupported by the evidence or plainly erroneous as a matter of law. Id. at 3-4.

We first address whether the New Hampshire probate division erred in applying Massachusetts' pretermitted heir statute, rather than New Hampshire's RSA 551:10, to the testator's will. On appeal, the petitioner argues that, despite the language of Article Ninth in his mother's will, RSA 551:10 applies because his mother was domiciled in New Hampshire at the time of her death and her estate consists of only personal property. The respondent argues that "[t]he intent of Marie G. Dow is clear," (bolding and capitalization omitted), pursuant to Article Ninth of her will, that Massachusetts law should apply and asserts that New Hampshire "give[s] effect" to choice-of-law provisions in wills. We agree with the petitioner.

The probate division's findings that the testator's estate consists of only personal property and that she was domiciled in New Hampshire at the time of her death are not challenged on appeal and need not be disturbed.[1] See In re Estate of Donovan, 162 N.H. at 3-4. We review the probate division's application of law to undisputed facts de novo. See Clay v. City of Dover, 169 N.H. 681, 686 (2017); In re Estate of Donovan, 162 N.H. at 4.

Under New Hampshire law, personal property of a testator generally passes according to the law of the state of domicile. In re Estate of Rubert, 139 N.H. 273, 276 (1994); Eyre v. Storer, 37 N.H. 114, 120 (1858). Compare Eyre, 37 N.H. at 120 ("The general principle of the common law is, that the right and disposition of movables is to be governed by the law of the domicil of the owner."), with Mass. Gen. Laws Ann. ch. 199, § 1 (West 2012) (stating that Massachusetts, when administering the will of a non-inhabitant of the Commonwealth, will dispose of the estate "according to his last will, if any; otherwise . . . his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant").2Our law comports with Section 263(1) of the Restatement (Second) Conflicts of Laws, which provides: Whether a will transfers an interest in movables and the nature of the interest transferred are determined by the law that would be applied by the courts of the state where the testator was domiciled at the time of his death.

Restatement (Second) Conflicts of Laws § 263(1), at 121 (1971). Compare id. (pertaining to transfers of personal property by will), with id. § 239(1), at 48 ("Whether a will transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs.").

Because the testator's will disposes of only personal property, i.e., "movables," the nature of the interests in this property will be determined by the laws of New Hampshire - where she was domiciled at death. Restatement (Second) Conflicts of Laws,

supra § 263(1), at 121; see In re Estate of Rubert, 139 N.H. at 276; Eyre, 37 N.H. at 120. The law in New Hampshire is clear, and we are not persuaded that there is a reason to deviate from it in the instant case.

The respondent relies upon our decisions in In re Farnsworth Estate, 109 N.H. 15 (1968), and Royce v. Estate of Denby, 117 N.H. 893 (1977), in support of her position that Massachusetts' pretermitted heir statute applies to the will because New Hampshire law honors the testator's intent, as expressed in Article Ninth of Marie G. Dow's will, to have her estate "administered and enforced according to the laws of the Commonwealth of Massachusetts." This reliance is misplaced.

The respondent emphasizes that the court, in In re Farnsworth Estate, "gave effect to the choice of law provision in [the testator's] will." (Bolding omitted; emphasis added.) However, our review in that case was limited to the testator's designation of New York law as the law to apply to her testamentary trusts.

See In re Farnsworth Estate, ...

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