Summary
In Hogan v. Roche, 95 N.H. 368, 63 A.2d 794 (1949), the court held void an attempt by a guardian to renounce a will on behalf of a surviving spouse; in Gowing v. Laing, 96 N.H. 364, 77 A.2d 32 (1950), a companion case with Hogan, the court held that, where the surviving spouse died before renouncing, that right did not survive her.
Summary of this case from Scherr v. Ehrlich (In re Estate of Scherr)Opinion
No. 3799.
Decided February 1, 1949.
A guardian, in determining whether he should waive the provisions of the will of his ward's husband in her favor so that his insane ward could take her distributive share in his estate, should try to place himself as nearly as possible in the position of his ward and take such action as she would probably take if sane. In such case, the financial circumstances of his ward, although important, are but one of several factors which the guardian should weight in exercising his election.
BILL IN EQUITY in which the executor of the will of John J. Hogan seeks to have the action of J. Francis Roche as guardian of Ellen M. Hogan, widow of John J. Hogan, in waiving the will of the late John J. Hogan in order to take her statutory interest in her husband's estate declared null and void on the ground that the guardian did not properly exercise his discretion in determining the question of whether or not to waive the provisions of the will.
After hearing by the Court certain findings of fact and rulings of law were made and the waiver in question was declared to be null and void. To these findings of fact and rulings of law and the Court's failure to find and rule as requested by the defendant, the latter seasonably excepted.
It appears that under the will, with the exception of a few small legacies, all of the testator's property was given to his nephew as trustee, who was also remainderman together with his father and sister. The trustee was to use the property within his sole discretion free from the interference of any person or court for the benefit of the testator's wife who was then eighty years of age and a patient in the New Hampshire State Hospital. There were no children and the estate consisted of real and personal assets of an agreed value of $17,500.
The defendant who was appointed guardian over the wife investigated the situation and obtained a detailed idea of the assets. He also learned the age of his ward, that she was a patient in the State Hospital, childless, that she had at least one sister living and was without property of any sort. Shortly after this, he filed a waiver of dower and homestead without making further investigation or giving consideration to the relations between his ward and remaindermen, or his ward and her heirs-at-law, or to the relations between his ward and her husband insofar as those relations might affect her desire to abide by or upset the will.
In addition to certain findings and a decree that the waiver be declared null and void the Court also ordered that the guardian be denied the right to re-examine these facts and again exercise his discretion as to the waiver. He added, however, that this order should not prevent the guardian resigning and the appointment of a new guardian by the Probate Judge, who, upon consideration of the presented facts, might exercise a sound discretion in behalf of the widow. Further facts appear in the opinion.
Transferred by Goodnow, C.J.
Hamblett, Griffith Moran and Sullivan Gregg (Mr. Hamblett orally), for the plaintiff.
J. Francis Roche, Paul J. Doyle and John W. King (Mr. King orally), for the defendant.
The duty of the defendant guardian in this case was to "try to place himself as nearly as possible in the position of the widow and take such action as she would probably take if sane." Wentworth v. Waldron, 86 N.H. 559, 564.
The Trial Court found that "the guardian did not inquire into and gave no consideration to the relations between his ward and the remaindermen under the will of John J. Hogan, nor to the relations between his ward and her heirs at law, nor to the relations between his ward and her husband in so far as those relations would affect her desire to either abide by or upset his wishes as expressed in his will."
The defendant does not dispute these findings, which are properly based upon the guardian's own testimony, but says that such considerations were not necessary to a valid choice and since it appears he took the best course for his ward financially the election must be upheld.
While this conclusion may be open to some question, as under the will the widow might have had the use of the entire estate, we base our opinion on the fact that our law does not sustain the defendant's position. Wentworth v. Waldron, supra. Financial circumstances, while important, are but one of several factors which a guardian should weigh in making his choice.
An exhaustive review of authorities elsewhere, influenced by different statutes from ours (R. L., c. 343, s. 3, as amended by Laws 1947, c. 151, s. 3) seems to serve no useful purpose; however it appears the better reasoned decisions are in agreement in recognizing that "not every widow disregards her husband's last wishes . . . merely because she would obtain a greater quantum of his estate by so doing; sentiment enters into such situations . . ." In re Harris Estate, 351 Pa. 368, 383. Other authorities also hold that a widow's relations with relatives as well as with her husband are necessary facts to be determined by the guardian in placing himself in her shoes, since often sentiment or likes and dislikes may outweigh mere financial gain. In re Carey, 194 Minn. 127, and cases cited; In re Brindle's Estate, (Pa. Supreme Court, July 7, 1948) 60 A.2d 1, 9; 147 A.L.R. 336, 340; 74 A.L.R. 452, 456.
It is not believed that an investigation disclosing with reasonable accuracy the relations of the ward to her husband, her heirs, his heirs and remaindermen, offers an insuperable obstacle. In every properly prepared will contest lawyers are required to and do obtain similar facts. In ignoring all these considerations, it is apparent the, guardian has not applied the law correctly to the situation here, and since there is no way to determine what result he would have reached had he done so, the Trial Court's decree declaring the waiver of the will null and void, must be sustained.
The other exceptions being neither briefed nor argued, are deemed waived.
Decree affirmed.
KENISON, J., concurred in the result; the others concurred.