Opinion
Nos. 4035. 4034.
Decided July 2, 1951.
The authority of the probate court to certify questions of law under Laws 1947, c. 90, is limited to questions upon which the court desires instructions for the proper decision of matters duly before it in proceedings coming within its statutory jurisdiction. The duty to advise a fiduciary concerning questions arising out of the administration of property held in a fiduciary capacity lies within the jurisdiction of the Superior Court and not the probate court. A legatee or devisee is not entitled to advice and instructions concerning his private rights and duties although such beneficiary may also be a fiduciary.
PETITIONS, by an administrator for advice and instructions. Herman C. Gay is the administrator with will annexed both of the estate of his father Clarence O. Gay, late of Windham and of that of his mother Ida M. Gay, late of said Windham. He is also mentioned as a beneficiary in the third clause of each will. The beneficiaries under the two wills were duly notified but have not appeared in the proceedings.
The material portions of the will of the said Clarence O. Gay are as follows:
"2. All of my estate whether real, personal or mixed and wherever the same may be situated I give and bequeath to my beloved wife, Ida M. Gay for and during the term of her natural life, she to have the full use and income therefrom with the right to use so much of the principal as she may deem necessary for her comfortable support and maintenance.
"3. At the decease of my said wife or in case my said wife should not survive me I give and bequeath any remainder of my estate to my son, Herman C. Gay of Lowell, Massachusetts, he to have the sole use and income therefrom during the term of his natural life and at his decease the remainder therefrom to be divided equally between my next of kin who are living at that time and the next of kin of my wife, Ida M. Gay, who are then living.
"I hereby nominate and appoint my said wife, Ida M. Gay, to be the sole executrix of this will and it is my request that she be allowed to serve as such executrix without giving bond and I pressly authorize my said executrix to sell at public or private sale any real estate of which I may die seized, she giving therefor any proper form of deed."
The material portions of the will of the said Ida M. Gay are identical with the above quoted portions of the husband's will, save for changes necessary to indicate that the husband is the life beneficiary and executor instead of being the testator, and that the next of kin of both take under her will as well as under his.
Under the provision of Laws 1947, chapter 90, the probate court (Shute, J.) certified to this court the following questions of — law which are the same queries that were contained in the prayer of each petition for advice:
"1. Is Herman C. Gay entitled, under the third clause of said will, to an absolute interest in the residue of the estate free from any trust or life estate?
"2. Is Herman C. Gay entitled, under the third clause of said will, to a life estate free from any trust?
"3. Was a trust created under the third clause of said will?
"4. If questions (2) or (3) are answered affirmatively, may Herman C. Gay invade the principal of the residue?
"5. If question (4) is answered affirmatively, is there any limitation upon the purposes Herman C. Gay may expend the principal?"
Robert E. Earley, for the administrator, furnished no brief.
A preliminary question to be decided is whether the probate court has jurisdiction to entertain a petition for advice and instructions. If it has not such jurisdiction then it has no authority to transfer questions under chapter 90, Laws 1947, and any advice given is without binding effect.
Objection to jurisdiction over the subject matter may be taken at any time and under the circumstance of such lack the court will act on its own motion. "Whenever it appears that a court has no jurisdiction of the subject-matter of the suit, the proceeding is dismissed even if no objection is made." Burgess v. Burgess, 71 N.H. 293. See also, Straw's Petition, 78 N.H. 506.
The authorities are not unanimous as to the jurisdiction of probate courts. "Accordingly, many authorities have held that probate courts are courts of limited or special jurisdiction and, being inferior courts, cannot take jurisdiction or administer remedies except as provided by statute." 14 Am. Jur. 252.
In this state it has been held that the probate courts do not have general jurisdiction but are limited to such powers as are conferred upon them by statute. "The jurisdiction of such courts is limited (P. L, c. 293 [now R. L, c. 346]) and they have not been clothed with general equitable powers, even with reference to those fiduciaries who are appointed by them." Wentworth v. Waldron, 86 N.H. 559, 561. This view of limited powers is expressed in Hayes v. Hayes, 48 N.H. 219, 229, 230 as follows: "The general policy of the law in this State has been to confine the contentious jurisdiction of the probate courts within narrow limits, leaving the practice there to be simple and generally free from such difficulty as would require the attendance of counsel and the expense of protracted trials. . . . The position here taken by the appellees involves the claim of general jurisdiction over trust funds created by will. Jurisdiction over such trusts is conferred by the statute in express terms on the supreme judicial court. If, in this case, the probate court has power to enforce the trust according to the intent of the donor, it must have it in every other trust created by will. If the legislature intended to grant the probate court concurrent jurisdiction over these trusts with the supreme court, they would not, we think, have left their intention to be inferred from a single doubtful expression in a statute whose general object was entirely different; but would have conferred the authority in plain and explicit terms."
In Rockwell v. Dow, 85 N.H. 58, 66, a distinction was drawn between jurisdiction of the probate courts and that of the Superior Court. "The general line separating probate jurisdiction from that of the superior court is not difficult of ascertainment. The distinction is that between things which are `incident to the business of conducting the administration' and `a settlement with the judge of probate' concerning administration already had. Patten v. Patten, 79 N.H. 388, 392, 393." On page 67 of the same opinion, it was indicated that jurisdiction over petitions for advice and instructions was in the Superior Court and not in the probate courts. "If the probate court has jurisdiction to construe a will or deed of trust, as an incident of its authority to pass upon accounts, or make a decree of distribution, it is not to be doubted that the superior court still has the frequently exercised power to advise a fiduciary as to the law governing his future conduct of the trust."
The authority of the probate court under Laws 1947, chapter 90, is limited to the certification of questions of law upon which the court desires instructions for the proper decision of matters duly before it in proceedings coming within its statutory jurisdiction.
Since the administrator may choose to file petitions for advice and instructions in the Superior Court and ask the same questions that were certified in the present proceedings, it should be noted that the power of that court to advise is limited to questions arising out of the administration of property held in a fiduciary capacity. It does not include advising a legatee or devisee concerning his private rights and duties, although such beneficiary may also be a fiduciary. The purpose of the remedy is the protection of fiduciaries. Wallace v. Brown, 89 N.H. 561; Harvey v. Harvey, 73 N.H. 106; Gafney v. Kenison, 64 N.H. 354.
Petitions dismissed.
KENISON, J., dissented: the others concurred.
While agreeing with the next to the last paragraph of the opinion, it is believed that the construction placed on Laws 1947, chapter 90, is stricter than required by its express terms, more limited than its apparent policy and purpose (1 N.H. Judicial Council Rep. 19, 20 (1946)) and inconsistent with the action actually taken by this court under the same statute in the recent case of Amoskeag Trust Co. v. Haskell, 96 N.H. 89. If some of the questions certified by the probate court are not doubtful or should not be answered (In re: Gile Estate, 95 N.H. 270), we need not assume that the answers to the remainder are unnecessary to the probate court for its determination of the procedure to be followed in the distribution and accounting of the estate. See Duncan v. Bigelow, 96 N.H. 216, 219.