Jaques v. Chandler

• Decision Date: 07 November 1905
• Citation: 62 A. 713,73 N.H. 376
• Parties: JAQUES v. CHANDLER.
• Court: New Hampshire Supreme Court

62 A. 713

73 N.H. 376

JAQUES

v. CHANDLER.

Supreme Court of New Hampshire. Rockingham.

Nov. 7, 1905.

Transferred from Superior Court; Stone, Judge.

Petition by William H. Jaques against Lucy H. Chandler, executrix of the will of Elizabeth H. Jaques, deceased, for an extension of time for the filing of a waiver by petitioner of the provisions of the will of decedent, who was his wife. The wife died April 2, 1895, but the petition was not filed in the probate court until December 28, 1897. An order was entered by the probate court denying the petition, from which petitioner prosecuted an appeal to the superior court. Case transferred to Supreme Court. Exceptions overruled.

Streeter & Hollis and Edwin G. Eastman, for plaintiff. Samuel C. Eastman and Prink & Marvin, for defendant.

PARSONS, C. J. The husband may waive the provisions of his wife's will in his favor by writing filed within one year after her decease, "and not afterwards, unless the judge of probate, upon petition and for good cause shown, shall extend the time." Pub. St. 1901, c. 186, § 13; Id. c. 195, § 14. The plaintiff's petition for leave to file a waiver of the will after the expiration of the year having been denied by the probate court, he duly appealed to and prosecuted his appeal in the superior court. That court, upon hearing, made a special finding of facts, and held that the facts found did "not constitute, either as matter of fact or of law, a good cause shown for extending the time in which to waive the provisions of the will," and dismissed the appeal. To the foregoing finding and order dismissing the appeal, and to the refusal of the court to enter an order sustaining the appeal and reversing the decree of the probate court, the plaintiff excepted.

It is conceded that the exception does not raise any question as to the accuracy of the special facts found and stated in the case. There are no exceptions to evidence or procedure, and the only question presented is whether the conclusion of the court that good cause had not been shown was legal error.

Prior to the Public Statutes (1891) there was no statutory limitation of the time within which either husband or wife might waive the other's will and take instead the rights under the statute which depended upon such waiver (Gen. Laws 1878, c. 202, §§ 7-10, 15, 16), unless it appeared that the provisions of the will were intended to be in addition to those of the statute. Brown v. Brown, 55 N. H. 106; Gen. Laws 1878, c. 202, § 18. But conduct inconsistent with an intent to waive the will was regarded as an election to hold under the will. Hovey v. Hovey, 61 N. H. 599. The uncertainty whether the rights of the survivor were to be determined by the statute or the will, in the absence of any definite act establishing such election, tended to delay the settlement of estates and was without doubt the cause of the statutory addition. This prescribed a rule of evidence under which the absence of a written waiver on file at the end of the year conclusively established an election to take under the will. As the right was purely statutory, the Legislature had power to withdraw it altogether, or to impose such limitations upon its exercise as might seem to them just. It is apparent that there might be cases in which the right of election could not be intelligently exercised, and other cases where without fault the survivor might neglect or be unable to file the waiver within the year. In such circumstances a strict application of the rule might produce injustice, if no relief could be afforded. To provide for such cases is the object of the clauses which authorize the probate court to extend the time for filing such waiver "for good cause shown."

The expression "good cause shown" is not common in the statute law of the state. The only use of it that has been found which has been construed by the court is in the statute relating to costs. "In all actions or petitions in the Supreme Court, costs may, on motion and good cause shown, be limited," etc. Gen. St. 1867, c. 214, § 2. In Whitcher v. Benton, 50 N. H. 25, 27, it is said, in substance, that whatever would make it appear just and reasonable that costs should be limited would be good cause for so doing. In Forster v. Farquhar [1893] 1 Q. B. 564, 567, in construing a rule authorizing the court to limit costs "for good cause shown," it is said: "No nearer and closer definition can be given than that there will be good cause whenever it is fair and just between the parties that it should be so." See Jones v. Curling, 13 Q. B. Div. 262, 267. Considering the manifest reason of the provision, the probable legislative purpose, and the definition of the term already given by this court and others, it appears probable that it was intended that permission to file the waiver after the year should be given whenever it would be reasonable and just to do so; in other words, when justice required it.

What justice requires is a question of fact which is finally determined by the tribunal trying that fact (Cook v. Lee, 72 N. H. 569, 58 Atl. 511), whether the question be one of costs (Nutter v. Varney, 64 N. H. 334, 10 Atl. 615), the allowance of an amendment (Pub. St. 1901, c. 222, § 8; Morgan v. Joyce, 66 N. H. 476, 30 Atl. 1119), whether permission should be granted to prosecute a claim against the estate of a deceased person after the time limited by law (Pub. St. 1901, c. 191, § 27; Libby v. Hutchinson, 72 N. H. 190, 192, 55 Atl. 547), whether a new trial should be granted in any case (Pub. St. 1901, c. 230, § 1; Ela v. Ela, 72 N. H. 216, 55 Atl. 358), or whether one claiming damages under the traveler's statute should be permitted to file notice thereof (Pub. St. 1901, c. 76, § 8; Boyd v. Derry, 68 N. H. 272, 38 Atl. 1005). What justice requires, whenever the question arises, is "a proper subject for investigation in the superior court; but it presents no question of law for determination in this court." Fulton Pulley Co. v. Machine Co., 71 N. H. 384, 52 Atl. 457; First Nat. Bank v. Savings Bank, 71 N. H. 547, 551, 53 Atl. 1017; Priest v. Railroad, 71 N. H. 114, 116, 51 Atl. 667; Carr v. Adams, 70 N. H. 622, 45 Atl. 1084; Story v. Railroad, 70 N. H. 364, 367, 48 Atl. 288; Parsons v. Durham, 70 N. H. 44, 46, 47 Atl. 600; Jaquith v. Benoit, 70 N. H. 1, 45 Atl. 714; Hale v. Jaques, 69 N. H. 411, 412, 43 Atl. 121; Dawson v. Kimball, 68 N. H. 549, 551, 38 Atl. 380; State v. Collins, 68 N. H. 46, 36 Atl. 550; Broadhurst v. Morgan, 66 N. H. 480, 29 Atl. 553; State v. Stone, 65 N. H. 124, 126, 18 Atl. 654; Powers v. Holt, 62 N. H. 625; Davis v. Dyer, 62 N. H. 231; Page v. Whidden, 59 N. H. 507; Webster v. Webster, 58 N. H. 247; Brooks v. Howard, 58 N. H. 91; Eames v. Stevens, 26 N. H. 117, 121. It has been held that a statute which directs that a court may do a thing on good cause shown vests a discretion in the court. People v. Sessions, 62 How. Prac. 415; Kendall v. Briley, 86 N. C. 56; Kerchner v. Singletary, 15 S. C. 535. "Judicial discretion, in its technical legal sense, is the name of the decision of certain questions of fact by the court." Darling v. Westmoreland, 52 N. H. 401, 408, 13 Am. Rep. 55; Bundy v. Hyde, 50 N. H. 116, 120. It is in fact conceded in the plaintiff's brief that whether good cause exists in a given case is a question of fact. This conclusion, assented to by the plaintiff and supported by the authorities, is decisive of his exception. Whether good cause was shown—what justice required—has been found as a fact from the evidentiary facts reported, by the tribunal having jurisdiction to find the fact. Such a...