In re Estate of Marie G. Dow ( 2021 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
10th Circuit Court-Brentwood Probate Division
No. 2019-0752
IN RE ESTATE OF MARIE G. DOW
Argued: September 22, 2020
Opinion Issued: January 20, 2021
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.
I
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.
2
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
3
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”).2
Our 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,
1Nor was an appeal taken of the probate division’s granting of the petition for estate
administration in New Hampshire despite Article Ninth of the will.
2 The Commonwealth of Massachusetts adopted the Uniform Probate Code (UPC) in 2012. See
Mass. Gen. Laws Ann. ch. 190B (West 2012 & Supp. 2020) (eff. Mar. 31, 2012). The UPC permits
testators to select the law of another state for use in determining “[t]he meaning and legal effect” of
their will, Unif. Probate Code § 2-703, 9-I U.L.A. 275 (2013), “without regard to the location of
property covered thereby . . . [s]o long as the local public policy is accommodated,” id. cmt.; see
Jeffrey A. Schoenblum, Multijurisdictional Estates and Article II of the Uniform Probate Code, 55
Alb. L. Rev. 1291, 1317-18 (1992). This choice of law applies to matters of “‘interpreting’ the will
or other governing instrument,” which involves “the meaning of words” and “a search for the
testator’s actual intent and, thus, does not implicate a conflict of laws.” Schoenblum, supra at
1318 (citing Restatement (Second) Conflicts of Laws, supra §§ 240 cmt. c at 55-56, 264 cmt. c at
126). We note that New Hampshire has not adopted the UPC.
4
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, 109 N.H. at 15-19. In In re Farnsworth
Estate, the testator was a domiciliary of New Hampshire at the time of her
death though her will was “drawn and executed in New York City.” Id. at 16.
The testator’s will stated, in relevant part, “the trusts created hereby shall be
administered in the State of New York and shall be construed and regulated by
the laws of the State of New York.” Id.
We noted that the administration and validity of a “‘trust of movables . . .
created by will’” is generally governed by the law of the state of the testator’s
domicile at death, but explained that there are “‘two situations in which the law
of another state may be applied to the administration of the trust.’” Id. at 17
(quoting 5 Austin Wakeman Scott, Laws of Trusts § 605, at 3936 (3d ed.
1967)). “‘The first is where the testator has designated the law of another state
as the governing law. The second is where the testator has fixed the
administration of the trust in a state other than that of his domicile at death.’”
Id. (quoting Scott, supra). We determined that the will “created both of these
situations” and, thus, held that “these trusts were intended to be and should
be administered in the State of New York.” Id. at 17-18.
Here, the testator did not establish a testamentary trust. The fact that
the will at issue in In re Farnsworth Estate disposed of the testator’s property
via testamentary trusts was essential to our reasoning and our decision in that
case. See id. at 15-19; see also In re Lykes Estate, 113 N.H. 282, 284 (1973)
(holding provision of will that testamentary trust be construed according to
laws of Texas was “a valid provision which must be respected by this court”
(citing Scott, supra §§ 574-75; Restatement (Second) Conflicts of Laws, supra §
268(1), at 143). The pertinent rules to apply to dispositions of property via will
are dependent upon the form of the disposition and the form of the property.
See, e.g., In re Farnsworth Estate, 109 N.H. at 15-19; Haynes v. Carr, 70 N.H.
463, 463, 480 (1900) (“There is a wide distinction between a gift to charity and
5
a gift to a trustee to be by him applied to charity.” (quotation and emphasis
omitted)); Eyre, 37 N.H. at 120 (a decedent’s personal property passes
according to the law of the state of domicile, while real property passes
according to the law of the state where it lies). Therefore, in the instant case,
In re Farnsworth Estate does not support deviating from New Hampshire law
as the law governing the disposition of personal property in Marie G. Dow’s
will. See In re Estate of Rubert, 139 N.H. at 276; Restatement (Second)
Conflicts of Laws, supra § 263(1), at 121; cf. Robbins v. Johnson, 147 N.H. 44,
45 (2001) (“The pretermitted heir statute, on its face, applies to ‘wills,’ not to
trusts.”).
Similarly, the fact that the testator in Royce became a domiciliary of New
Hampshire after she had become incapacitated and never regained capacity
before her death was essential to our reasoning and our decision in that case.
See Royce, 117 N.H. at 896-97. “The Royce holding was limited to the facts of
that case, which are distinguishable from those before us.” In re Estate of
Rubert, 139 N.H. at 276. In Royce, we recognized that, because the testator
had no opportunity due to her incapacity to change her will after her move to
New Hampshire, it was inequitable to apply the New Hampshire rule that the
law of the domicile controls the succession to personal property when the
testator had no opportunity to respond to New Hampshire law. Royce, 117
N.H. at 897. Here, the testator had an opportunity to change her will after
relocating to New Hampshire approximately a year before her death.3
Therefore, Royce does not support deviating from New Hampshire law as the
law governing the disposition of personal property in Marie G. Dow’s will. See
In re Estate of Rubert, 139 N.H. at 276; Restatement (Second) Conflicts of
Laws, supra § 263(1), at 121.
We note that our prior case law, contemplating the applicability of New
Hampshire’s pretermitted heir statute where the facts implicated more than
one jurisdiction, has not expressly dealt with a provision like that of Article
Ninth in Marie G. Dow’s will, expressing her intent to have her estate
“administered and enforced according to the laws” of another state — the
Commonwealth of Massachusetts. See, e.g., In re Estate of Rubert, 139 N.H. at
276 (applying Virginia law to determine whether the plaintiff was a pretermitted
heir entitled to an intestate share of the testator’s personal property where the
testator was domiciled in Virginia); Royce, 117 N.H. at 895, 897; cf. In re
Farnsworth Estate, 109 N.H. at 15-19. While it is true that we attempt to give
maximum effect to a testator’s intent, see In the Matter of Jackson, 117 N.H.
898, 903 (1977), our law does not support the application here of another
state’s pretermitted heir statute independent of the governing law of the
testator’s domicile at death with respect to dispositions of personal property,
see In re Estate of Rubert, 139 N.H. at 276; see also Restatement (Second)
3The testator did not modify her will after moving to New Hampshire, and she sold her real
property in Massachusetts two weeks before her death.
6
Conflicts of Laws, supra § 263(1), at 121. But see Royce, 117 N.H. at 896-97(creating an exception that was limited to the facts of that case).
Section 264 of the Restatement (Second) Conflicts of Laws supports a
testator’s ability, in bequeathing interests in personal property, to select the
rules of construction of another state for use in construing the language of her
will. See Restatement (Second) Conflicts of Laws, supra § 264(1), at 125 (“A
will insofar as it bequeaths an interest in movables is construed in accordance
with the local law of the state designated for this purpose in the will.”); id.
§ 264 cmt. e at 126-27 (“The forum will give effect to a provision in the will that
it should be construed in accordance with the rules of construction of a
particular state.”).4 We have not expressly adopted this section of the
Restatement, and we need not consider doing so here because even assuming
without deciding that Article Ninth designated Massachusetts’ rules of
construction for application to the will, neither Massachusetts’ nor New
Hampshire’s pretermitted heir statute constitutes a rule of construction. See
In re Craig Living Trust, 171 N.H. 281, 284-85 (2018) (explaining RSA 551:10
is not a rule of construction). Compare Mass. Gen. Laws Ann. ch. 190B, § 2-
302 (pretermitted heir statute), with Mass. Gen. Laws Ann. ch. 190B, §§ 2-601
to 2-610 (West 2012 & Supp. 2020) (encompassing the rules of construction
applicable to wills), and Mass. Gen. Laws Ann. ch. 190B, §§ 2-701 to 2-711
(West 2012 & Supp. 2020) (encompassing the rules of construction applicable
to donative dispositions in wills and other governing instruments). As will be
discussed in section III, not only is RSA 551:10 not a rule of construction, it is
a conclusive rule of law. See In re Craig Living Trust, 171 N.H. at 284-85.
We, therefore, hold that New Hampshire’s pretermitted heir statute
applies to Marie G. Dow’s will because she was a domiciliary of New Hampshire
at the time of her death and her will disposes of only personal property.
Accordingly, the probate division erred in applying Massachusetts law to
determine that the petitioner is not a pretermitted heir.
III
We now turn to the question of whether the petitioner is a pretermitted
heir of Marie G. Dow under New Hampshire law. See RSA 551:10. In applying
RSA 551:10, “[t]he court’s task is not to investigate the circumstances to divine
the intent of the testator; rather, it is to review the language contained within
4 According to the Restatement, “In the absence of such a designation, the will is construed in
accordance with the rules of construction 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,
supra § 264(2), at 125. But see Royce, 117 N.H. at 897 (“‘Where the domicile of the testator was
in one state when the will was executed, and in another at the time of his death, on the
presumption that he was using language with which he was then familiar, the view is taken that
the construction will be according to the law of the former state.’” (footnote omitted) (quoting
Harbert F. Goodrich and Eugene F. Scoles, Conflicts of Laws § 168, at 335 (1964)).
7
the four corners of the will for a determination of whether the testator named
or referred to” the petitioner. In re Estate of Treloar, 151 N.H. 460, 463 (2004)
(quotation omitted); accord In re Estate of MacKay, 121 N.H. 682, 684 (1981);
see RSA 551:10; In the Matter of Jackson, 117 N.H. at 902-03 (extrinsic
evidence is inadmissible to show the testator’s intent in omitting their children
from their will). Because the probate division is in no better position than are
we to undertake this task, our review is de novo. See Masse v. Commercial
Union Ins. Co., 136 N.H. 628, 632 (1993); see also, e.g., In re Estate of Treloar,
151 N.H. at 462-64; In re Estate of Came, 129 N.H. 544, 547-50 (1987); In re
Estate of MacKay, 121 N.H. at 683-84; cf. In re Craig Living Trust, 171 N.H. at
282, 284 (agreeing with the trustee that RSA 551:10 is “not intended merely to
provide guidance relative to the interpretation of a will — which the decision-
maker is free to accept or reject depending on the circumstances of the
particular situation — but instead states a rule of law”). Applying RSA 551:10
to Marie G. Dow’s will, we hold that the petitioner is a pretermitted heir as a
matter of law. See RSA 551:10.
Article Second of the testator’s will bequeaths her “residuary estate” to
“[her] daughter-in-law, Leslie Dow,” (capitalization omitted), and, if the
respondent fails to survive her, to “[her] granddaughter.” Article Eighth states,
“I have intentionally omitted to mention, or to devise or bequeath or give
anything . . . to any person or persons other than those mentioned in this my
last Will and Testament.”
New Hampshire’s pretermitted heir statute provides:
Every child born after the decease of the testator, and every
child or issue of a child of the deceased not named or referred to
in his will, and who is not a devisee or legatee, shall be entitled
to the same portion of the estate, real and personal, as he
would be if the deceased were intestate.
Id. The purpose of the statute is to prevent a mistake or unintended failure by
the testator to remember the natural object of his or her bounty. In re Estate
of Treloar, 151 N.H. at 462. When a child is not designated as a devisee or
legatee in the testator’s will, the naming of or reference to the child in the will
establishes a “conclusive inference that the testator’s failure to provide for him
was not the result of mistake or forgetfulness.” Boucher v. Lizotte, 85 N.H.
514, 515 (1932). The statute is therefore “not a limitation on the power to
make testamentary dispositions but rather is an attempt to effectuate a
testator’s presumed intent. It prevents forgetfulness, not disinheritance.” In re
Estate of Laura, 141 N.H. 628, 634 (1997) (quotation omitted). The statute
does not create merely a presumption that pretermission is accidental, but a
rule of law. In re Estate of Treloar, 151 N.H. at 462. This rule of law is
conclusive unless there is evidence in the will itself that the omission was
intentional. Id.; accord Robbins, 147 N.H. at 45; see RSA 551:10.
8
To be deemed a pretermitted heir in New Hampshire, the child must not
be named in the will, referred to in the will, or be a devisee or legatee under the
will. In re Estate of Treloar, 151 N.H. at 462; see RSA 551:10. “We have
previously interpreted the phrase ‘named or referred to’ to require ‘clear
evidence’ that the testator actually named or distinctly referred to the heir
‘personally, so as to show that [the testator] had the heir in . . . mind.’” In re
Estate of Treloar, 151 N.H. at 462 (brackets omitted) (quoting Boucher, 85 N.H.
at 516).
The respondent acknowledges that “no children of Marie were named as
beneficiaries” in her will, see RSA 551:10 (a pretermitted heir cannot be a
devisee or legatee of the will), and, as the probate division stated, the will “fails
to specifically name [the testator’s] son, Christopher, in any way,” see id. (a
pretermitted heir cannot be named in the will). Consequently, for the petitioner
not to be a pretermitted heir, he must be “referred to” in his mother’s will. Id.;
see id. We conclude he is not.
We understand the respondent to argue that Christopher Dow was
sufficiently “referred to” in the will because the respondent herself is referred to
as a “daughter-in-law,” which indicates that she “was married to a child of
Marie Dow . . . and that Marie did not intend for anyone other than Leslie Dow
or [the testator’s granddaughter] to take anything under her will.” This is
insufficient to demonstrate that the omission of Christopher Dow from the will
was intentional. See RSA 551:10; Boucher, 85 N.H. at 516 (requiring “clear
evidence” (quotation omitted)).
An indirect reference to the child is sufficient where the reference
demonstrates that the deceased had the child in mind when she made the will,
see In re Estate of Osgood, 122 N.H. 961, 964 (1982); Boucher, 85 N.H. at 516;
however, “[t]he naming of one person, however closely related to another,
without more, is no reference to that other,” Gage v. Gage, 29 N.H. 533, 543
(1854); accord In re Estate of Osgood, 122 N.H. at 964 (“It is well established
that there must be a reference in the will to the child himself. It is not
sufficient to infer that the child was not forgotten because a sibling or other
relative was remembered in the will.”). Here, although the will describes the
respondent as a “daughter-in-law,” and identifies a “granddaughter,” there is
nothing more that “distinctly refer[s]” to Christopher Dow “personally, so as to
show that [Marie G. Dow] had [him] in [her] mind.” Gage, 29 N.H. at 542.
As relevant to the identification of a “granddaughter” in the will, we held
in Gage that the naming of and reference to a grandchild was not a sufficient
reference to the grandchild’s father, the testator’s son, to preclude application
of the pretermitted heir statute to the testator’s will. Gage, 29 N.H. at 542-43
(“[T]he naming of a grandson and describing him as such, is no reference to his
father or mother.”). The same reasoning applies here. See id.
9
The identification of the respondent as a “daughter-in-law” is similarly
insufficient as a reference to the petitioner for purposes of RSA 551:10. In
Boucher, the testator’s will bequeathed property “to Marianna Lizotte, wife of
my son Alphonse Lizotte.” Boucher, 85 N.H. at 514. We held that the
testator’s son Alphonse Lizotte was not a pretermitted heir because
[a]ny naming of, or reference to, the heir, which demonstrates that
he was not out of the mind of the testator at the time of making his
will gives rise, under the statute, to a conclusive inference that the
testator’s failure to provide for him was not the result of mistake or
forgetfulness.
Id. at 514-15. Although Marie G. Dow described the respondent in her will as
her “daughter-in-law,” unlike the will in Boucher, there is no other reference to,
let alone naming of, the child to whom the respondent was married. See id. at
514-16.
We addressed an analogous argument regarding language of a “son-in-
law” in In re Estate of Treloar. See In re Estate of Treloar, 151 N.H. at 461-63.
There, the testator’s will named two of his children as devisees, but did not
name his other child, Evelyn. Id. at 461-62. The testator’s will also named his
son-in-law, Evelyn’s husband, as executor. Id. We rejected the argument that
“the reference [in the will] to . . . the testator’s ‘son-in-law’ showed that he had
[his daughter] Evelyn in mind when he drafted the . . . will” and concluded that
she was not sufficiently “referred to.” Id. at 461, 463; cf. Boucher, 85 N.H. at
515 (explaining “[a]ny naming of, or reference to,” the child in the will that
demonstrates the heir was in the testator’s mind is sufficient). Accordingly, we
also reject the respondent’s argument here that the phrase “daughter-in-law”
in Article Second demonstrated that the testator had her son Christopher Dow
in mind when she drafted her will. See In re Estate of Treloar, 151 N.H. at 463;
In re Estate of Osgood, 122 N.H. at 964; Gage, 29 N.H. at 543.
Nor can we conclude that Article Eighth’s language, stating the testator
had “intentionally omitted to mention, or to devise or bequeath or give anything
. . . to any person or persons other than those mentioned in this my last Will
and Testament,” (emphasis added), provides a sufficient indirect reference to
the petitioner to demonstrate that she had him in mind when drafting her will.
See In re Estate of Laura, 141 N.H. at 634 (explaining RSA 551:10 prevents
forgetfulness, not disinheritance).
Although we have suggested that a [reference] to a class
circumscribed by the terms “children” or “issue” may be a
sufficient recognition of a child of the testator to exclude the child
from the ambit of RSA 551:10, a [reference] to a class which may
include children, such as “heirs-at-law” or “next-of-kin” is not
sufficient recognition.
10
In re Estate of MacKay, 121 N.H. at 684-85 (citation omitted); see In the Matter
of Jackson, 117 N.H. at 900-03 (reasoning the testator’s three adopted children
were pretermitted heirs because the will did not refer to the children by name,
nor make reference to the testator’s “children” or “issue,” and the use of “and
his heirs” in the residuary bequest did “not suggest that the testator intended
the word ‘heirs’ to be a reference to the children” (quotations and brackets
omitted)). Although the language in Article Eighth, expressing the intent to
disinherit “any person or persons other than those mentioned” in Marie G.
Dow’s will, could be interpreted as “a [reference] to a class which may include
children,” the fact that a referenced class “may include children” does not
provide clear evidence that the testator had her “children” or “issue” — the
petitioner and another son, collectively — in her mind when she drafted her
will. In re Estate of MacKay, 121 N.H. at 684-85; see In re Estate of Treloar,
151 N.H. at 462-64.
Our cases have emphasized that, whenever possible, maximum effect
should be given to the testator’s intent. In the Matter of Jackson, 117 N.H. at
903. However, we have also repeatedly held that the clear legislative directive
set forth in RSA 551:10 will be upheld even if the result is to defeat a testator’s
intent. See In re Estate of MacKay, 121 N.H. at 684; In the Matter of Jackson,
117 N.H. at 903 (“The formal requirements of RSA 551:10 may in some cases
operate to defeat a testator’s intent. However, this does not permit us to
formulate a rule different from that laid down in the statute.”). “[T]he true rule
of the law is just what is laid down in the statute; if a child . . . is not named or
referred to in the will, and is not a devisee or legatee, he will take his share, as
if the estate was intestate.” Gage, 29 N.H. at 543; accord Boucher, 85 N.H. at
516. Christopher Dow is not named or referred to in his mother’s will, and he
is not a devisee or legatee of her will. See RSA 551:10. As a matter of law, he
is a pretermitted heir under New Hampshire law and is entitled to his intestate
share of Marie G. Dow’s estate. See id.; Robbins, 147 N.H. at 45.
IV
In sum, we reverse the probate division’s decision to apply the
Massachusetts pretermitted heir statute in determining whether the petitioner
is a pretermitted heir under the will, and we reverse the probate division’s
conclusion that the petitioner is not a pretermitted heir. We hold that the
petitioner is a pretermitted heir under New Hampshire law, as properly applied,
and we remand for further proceedings consistent with this opinion.
Reversed and remanded.
HICKS, BASSETT, and DONOVAN, JJ., concurred.
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