Peterson's Estate, In re

• Decision Date: 30 April 1963
• Parties: In re Julia PETERSON'S ESTATE.
• Court: New Hampshire Supreme Court

Page 418

190 A.2d 418

104 N.H. 508

In re Julia PETERSON'S ESTATE.

Supreme Court of New Hampshire.

Submitted April 3, 1963.

Decided April 30, 1963.

Certification of a question of law to the Supreme Court by the probate court of Hillsborough County (Lemelin, J.) pursuant to RSA 547:30.

This proceeding was initiated by a petition of the executor of the will of Julia Peterson, deceased September 28, 1962, seeking a construction of the second clause of the decedent's will. That clause bequeathed to her sister 'my household furnishings and furniture, personal effects, clothing and jewelry, with the exception of an oil painting of surf and rocks and three pictures of Mt. Rainier National Park, which oil painting and pictures I give and bequeath to * * *' [another legatee]. Specifically, the petition requested instructions as to whether an automobile owned by the decedent was included in the specific bequest contained in the second article of the will and particularly whether it was included in the term 'personal effects' or passed to the residuary legatee.

The probate court certified and transferred this question without ruling.

Clancy & O'Neill, Nashua, for executor of will.

Leo R. Lesieur, Nashua, guardian ad litem.

KENISON, Chief Justice.

Passing reference should be made to two preliminary matters before reaching the principal question relating to the construction of the will. First it is to be noted that because both the executor and the probate court were in justifiable doubt as to the proper construction of the second clause of the will, it was impossible to make a legal distribution of the proceeds of the probate estate or to file an account. Therefore, this question was properly pending in the probate court and could be certified by it to this court under the provisions of RSA 547:30. In re Harrington's Estate, 97 N.H. 184, 84 A.2d 173; In re Woods' Estate, 102 N.H. 59, 149 A.2d 865; In re Whitelaw's Estate, 104 N.H. 307, 185 A.2d 65. As pointed out on previous occasions this statute provides an alternative method which in some cases is more expeditious and inexpensive than an application to the Superior Court for an interpretation of the will followed by transfer to this court. Duncan v. Bigelow, 96 N.H. 216, 72 A.2d 497; In re Byrne's Estate, 98 N.H. 300, 100 A.2d 157, 47 A.L.R.2d 591.

The second preliminary matter concerns the brief filed on behalf of the executor. While the brief is not specifically designated as an amicus curiae brief, it will be accepted. Llewellyn, The Common Law Tradition--Deciding Appeals 323 (1960); Comment, The Amicus Curiae, 55 Nw. U.L.Rev. 469 (1960). As was pointed out in In re Allaire's Estate, 103 N.H. 318, 320, 171 A.2d 191, this 'court is not averse to wisdom in any form, form any source,' and we shall continue to accept the benefits of briefs filed by fiduciaries whether designated amicus curiae or otherwise. See Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694 (1963). Frequently the alternative to rejecting these briefs, however designated, is to leave the question before this court without aid from any source. The danger that a fiduciary filing a brief may advocate a position favorable to one legatee and unfavorable to another without regard to the merits of the question is a minimal risk that this court is willing to assume. The brief of the fiduciary in the present case is helpful to the court, although its advocacy of a construction which appears to the fiduciary as the most logical within the context of the will as a whole necessarily results in supporting one legatee over another. In re Grondin's Estate, 98 N.H. 313, 315, 100 A.2d 160.

The specific legacy in the second clause of the will bequeathed to the sister of the testatrix 'my household furnishings and furniture, personal effects, clothing and jewelry' with the exception of an oil painting and three pictures which were specifically described. In ordinary context household furnishings and furniture would not include an automobile and the decisions are not harmonious in deciding whether an automobile is included within the meaning of the phrase 'personal...