Patey v. Peaslee

Blandin, J.,

dissenting: At the outset, the plaintiffs are faced with the proposition that their original petition having been dismissed without qualification, there was no action pending to amend. Gove v. Lyford, 44 N. H. 525; Restatement, Judgments, s. 50, comment c; anno. 106 A. L. R. 570, 571, 572. Our statute (RSA 514:9) provides amendments may be made “in any stage of the proceedings,” but here the proceedings were ended. It cannot be presumed, as the majority opinion assumes, that the status of the action before the Trial Court at the time of the hearing was considered and an order vacating the judgment impliedly made. The reserved case expressly states that the Trial Court ruled in effect that the petition was still pending. There was no motion to vacate the judgment nor any order to that effect. In the absence of such a motion and in the face of the record which says that the Judge ruled that the matter was still pending, I see no reasonable ground for assuming that a preliminary order vacating the judgment of dismissal should be implied.

The plaintiffs in their brief “agree that as the surviving spouse, Mr. Peaslee inherits this property under the operation of the statutes.” However, they seek to avoid the results of this situation by arguing that “the constructive trust operates only after Mr. Peaslee has legal title by operation of the statutes.” They, therefore, claim that they are not seeking to escape the effect of the statutes as to a husband’s rights in his wife’s estate. RSA 560:9, 12, 13. The majority opinion adopts this argument. It seems to me that whatever validity this claim might have were the relations of husband and wife not involved (cf. Morgan v. Morgan, 94 N. H. 116, 119), it should not prevail here. Marriage as a status and its incidents so far as material here have long been held to be the exclusive province of the legislative branch of our government. Its inception (RSA ch. 457), the circumstances in which it may be terminated (RSA ch. 458), and the division of property upon the death of the wife in ordinary circumstances and as affected by the husband’s conduct toward her are all controlled by statute. RSA 560:9, 12, 13, 18, 19. It is settled that the jurisdiction of our courts to act in situations involving the marriage status and the rights and obligations which flow from it is statutory. Veino v. Veino, 96 N. H. 439; Gove v. Crosby, 98 N. H. 469. In such cases “Common law principles which might produce a different result do not apply.” Fowler v. Fowler, 97 N. H. 216, 217. See also, 29 N. Y. U. L. Rev. 1142, 1144 (1954). The Legislature has been careful to specify only two causes which will deprive a husband of the right to inherit a share of his wife’s property (RSA 560:18, 19) and the presumption is that no others were to be included. Moore v. Dailey, 97 N. H. 278, 279; Carbonneau v. Company, 97 N. H. 438, 443. Neither of the required causes exists here.

The question before us in the last analysis resolves itself into one of public policy. Heath v. Heath, 85 N. H. 419; Patey v. Peaslee, 99 N. H. 335, 338. It has long been “the consistent opinion of this court” that when a change is to be made in this sphere it is for the Legislature and not the court. Manchester v. Guild, 100 N. H. 507, 510. While in this state no cases squarely in point have come to our attention, yet the policy as expressed by the Legislature unquestionably favors the husband as against the heirs in matters of inheritance. RSA ch. 560, supra. It appears there are substantial reasons to support this view. See Patey v. Peaslee, 99 N. H. 335, 338; Vance v. Hinch, 222 Ark. 494; 29 N. Y. U. L. Rev. 1142, 1144, 1145. In Heath v. Heath, supra, we held that where “the state of the public mind” on a matter of policy is “uncertain,” the court would be presumptuous to declare it. Id., 425, 426. Accordingly we dismissed the petition for annulment. In the present dispute the plaintiffs are in an even less favorable position than was the plaintiff in the Heath case, since, as previously stated, public policy here as expressed by the Legislature, is not uncertain but favors the defendant husband.

The majority opinion attaches certain legal consequences in the form of a constructive trust to acts arising out of and significant here only because of the marriage relation between the defendant and his deceased wife. This is done it seems to me in the face of an expressed legislative policy that such consequences should not be imposed. The immediate and direct result of impressing a constructive trust here would be to deprive the husband of the use and enjoyment of the property and award it to the heirs. I do not believe the Legislature took pains to assure the husband legal title to portions of his wife’s estate only to have the Court through a legalistic device promptly divest him of all their practical benefits and award them to the heirs. I think the petition should be dismissed.