Reynolds v. Chase

• Decision Date: 07 February 1935
• Citation: 177 A. 291
• Parties: REYNOLDS v. CHASE.
• Court: New Hampshire Supreme Court

177 A. 291

REYNOLDS

v. CHASE.

Supreme Court of New Hampshire. Carroll.

Feb. 7, 1935.

Transferred from Superior Court, Carroll County; Sawyer, Judge.

Petition by Willis L. Reynolds, administrator, against Lizzie M. Chase. Case transferred without ruling.

Case discharged.

Petition for a declaratory judgment determining issues of the construction and validity of two contracts.

The plaintiffs are the administrator of the estate of an intestate and her heir. In her lifetime she and her father entered into a contract under seal with the defendant and the latter's husband. The contract consisted of several clauses thus summarized in their order:

It is recited as a "memorandum of an agreement," "to the true performance of the several covenants and agreements" of which the parties bind themselves.

The first parties (the intestate's father and herself) "hereby assign and convey" to the second parties (the defendant and her husband) all their "real and personal property wherever found and situated," except $2,000 in value of it and some personal articles; also they agree to pay the second parties 50 cents each for each day spent in the second parties' home.

The first parties "agree that any and all property, both real and personal; left by either of them at the time of their decease shall become the sole property of the second parties.

The second parties agree to pay the first parties $50 monthly during the joint lives of the latter, and in proportion during the survivorship of one of them.

The second parties agree to support the first parties as long as either of the latter live for 50 cents a day for each.

The second parties agree that all debts and funeral expenses of the first parties will be paid, and that they will carry out certain instructions for the latters' burial.

The second parties agree that at the death of the survivor of the first parties they will pay to certain named institutions and an individual if then living certain sums aggregating $1,800.

After the death of the intestate's father and the defendant's husband the intestate and defendant agreed in writing that the original contract should continue in force with its obligations limited to them.

All obligations of the second parties or either of them have been performed, except the things to be done upon the death of the survivor of the first parties.

The intestate has died solvent, leaving property in excess of $2,000 in value, and consisting in part of real estate.

The questions of the validity and construction of the agreements were transferred without ruling by Sawyer, C. J

Cooper & Hall, of Rochester, for plaintiffs.

Preston B. Smart, of Ossipee, for defendant.

ALLEN, Chief Justice.

The proceeding should be amended. A petition for a declaratory judgment is not maintainable upon issues determinable by resort to other available procedure. Lisbon Village District v. Lisbon, 85 N. H. 173, 174, 155 A. 252; Baker v. Goodale, 85 N. H. 561, 157 A. 885. The controversy here being outside the jurisdiction of the probate court (Crockett v. Sibley, 73 N. H. 322, 61 A. 469; Patten v. Patten, 79 N. H. 388, 392, 109 A. 415; Rockwell v. Dow, 85 N. H. 58, 66, 154 A. 229; Robinson v. Estate of Dana's Estate (N. H.) 174 A. 772, 4 A. L. R. 1437), the plaintiff administrator may interplead the heir and defendant claimant. Barrett v. Cady, 78 N. H. 60, 63, 96 A. 325; Dover Cooperative Bank v. Estate of Tobin, 86 N. H. 209, 166 A. 247.

If the defendant's claim might be embraced within "demands which the deceased owed" (Pub. Laws, c. 303, § 12), entitling it to be passed upon by a commissioner appointed in administration of an estate in the insolvent course, the administrator is not required to seek a decision in that manner. The estate is solvent, and when there is solvency the administrator may elect whether there shall be an insolvent course of settlement.

As to the real estate, the legal title to which has vested in the heir, he may maintain a bill to relieve it from the cloud of the defendant's claim. Tucker v. Kenniston, 47 N. H. 267, 270, 93 Am. Dec. 425; Pub. Laws, e 317, § 3.

Proceeding upon the agreement for such an amendment as may be requisite to obtain a decision of the matters in controversy (Lisbon Village District v. Lisbon, supra, page 174*of 85 N. H., 155 A. 252; Tirrell v. Johnston, 86 N. H. 530, 532, 171 A. 641), the plaintiffs do not question the general validity of the contracts, but say that the provision for the intestate's property upon her decease to become the defendant's is an attempted testamentary disposal, is not an agreement to make it effective by a will, and does not serve to establish a claim against the estate.

Respecting the first point, the terms of the contract are all of stated obligations. They consist only of mutual "covenants and agreements." No thought of testamentary disposal appears. In effect, any purpose that the clause be considered a will is disclaimed.

The contract does not set forth how the intestate's property was to become vested in the defendant upon the former's death. No arrangement for instruments of title and no means and methods of transfer are made matters of specific treatment. The property turned over when the contract was made passed in title by the contract itself. It was thereby expressly assigned and conveyed. There were no stipulations for confirmatory documents in better evidence of the transfer, although the call for them could not be very doubtful in respect to real estate and intangible personalty. In like manner no plan was prescribed for effectuating the transfer of the property remaining upon the death of the survivor of the first parties.

It was evidently thought that the contract would serve to avoid any need of judicial administration of the...