While this question appears to be one of first impression in this jurisdiction, several other courts have unanimously held zoning ordinances cannot prevent otherwise valid devises of real property. In re Estate of Sayewich, 413 A.2d 581, 583 (N.H. 1980); Metzdorf v. Borough of Rumson, 170 A.2d 249, 252-54 (N.J.Super.Ct. App. Div. 1961); Estate of Williams by Lorgan v. Williams, 516 A.2d 359, 362 (Pa.Super. 1986). Williams is particularly helpful in resolving the case at bar.
A. Devise Failure Pursuant to 18-A M.R.S. § 2-606(a) [¶ 7] Courts that have considered whether noncompliance with zoning ordinances affects the validity of an otherwise valid devise have concluded that it does not. See In re Estate of Hurt, 681 N.W.2d 591, 593-94 (Iowa 2004); In re Estate of Sayewich, 120 N.H. 237, 413 A.2d 581, 583 (1980); Metzdorf v. Rumson, 67 N.J.Super. 121, 170 A.2d 249, 252-53 (App.Div. 1961); Estate of Williams v. Williams, 357 Pa.Super. 476, 516 A.2d 359, 362 (1986). In In re Estate of Sayewich, the New Hampshire Supreme Court considered whether a devise of property failed because the property had not received municipal subdivision approval.
Locke Lake, 126 N.H. at 139, 489 A.2d at 122; Ouellette v. Butler, 125 N.H. 184, 188, 480 A.2d 76, 79 (1984). A latent ambiguity exists when the language in the deed is clear, but the conveyance described can be applied to two different subjects or is rendered unclear by reference to another document. MacKay v. Breault, 121 N.H. 135, 139, 427 A.2d 1099, 1101 (1981); see also In re Estate of Sayewich, 120 N.H. 237, 242, 413 A.2d 581, 584 (1980). In this case, the Prudhommes' and the Flanagans' deeds are the beginning points for locating the east-west boundary between their lakefront properties.
It is intriguing to contemplate this almost metaphysical notion of property which is at once one and two parcels. (Cf. Hill v. City of Manhattan Beach (1971) 6 Cal.3d 279, 282-285 [ 98 Cal.Rptr. 785, 491 P.2d 369] [fact that two adjacent parcels were purchased separately did not establish that they were separate "lots" within meaning of zoning ordinance which defined "lot" in such a way that the two parcels did not qualify]; In re Estate of Sayewich (1980) 120 N.H. 237 [ 413 A.2d 581] [testamentary devise of real property as four separate parcels did not require local subdivision approval since probate law is concerned only with passage of title, and had no bearing on use or development of property].) We are constrained to reject the town's argument based on the language of the ordinance, however.
If the will is ambiguous, we then consider other evidence that may shed light on the testatrix intent. In re Estate of Sayewich, 413 A.2d 581, 584 (N.H. 1980). New Hampshire courts have not spoken on the matter before us, so we must examine the question as if we were a State court.
In this effort, the probate court is always permitted to consider the "surrounding circumstances" of the testator, id.; Royce v. Denby's Estate, 117 N.H. 893, 379 A.2d 1256 (1977), and where the terms of a will are ambiguous, as here, extrinsic evidence may be admitted to the extent that it does not contradict the express terms of the will. In re Estate of Sayewich, 120 N.H. 237, 242, 413 A.2d 581, 584 (1980). Direct declarations of a testator's intent, however, are generally inadmissible in all probate proceedings.
First, the testator's intent is our principle guide in interpreting a will. In re Estate of Sayewich, 120 N.H. 237, 241, 413 A.2d 581, 583 (1980). Second, if no contrary intent appears in the will, words within the will are to be given their common meaning.
[2, 3] It has long been the law in this State that extrinsic evidence is inadmissible to vary or contradict the express terms of a will or trust, but that "[e]xtrinsic evidence may be received . . . to ascertain the testator's [or settlor's] intent where the language used is ambiguous." In re Estate of Sayewich, 120 N.H. 237, 242, 413 A.2d 581, 584 (1980) (citing Jones v. Bennett, 78 N.H. 224, 230-31, 99 A. 18, 22 (1916)); see 2 A. SCOTT, THE LAW OF TRUSTS 164.1, at 1258 (3d ed. 1967). To ascertain whether an ambiguity exists in the trust instrument, we examine the entire document as a whole and do not focus on an isolated phrase or clause.
In addition to recognizing New Hampshire's overriding governmental interest in this matter, we find that the New Hampshire wrongful death statute, which permits distribution of the death benefits in accordance with the provisions of the decedent's will, is the sounder rule of law because it fosters the intent of the decedent-testator. See In re Estate of Sayewich, 120 N.H. 237, 241, 413 A.2d 581, 583 (1980). As a result, we hold that the probate court correctly ruled that New Hampshire law governed the distribution of the wrongful death benefits in this case.
A number of jurisdictions, in cases involving a dispute over an ambiguous will provision, have permitted the scrivener of the will to give testimony reflecting upon the probable intent of the testator including such matters as communications between the testator and the scrivener, instructions given by the testator to the scrivener prior to or during preparation of the will, and circumstances surrounding execution of the will. See, In Re Estate of Sayewich, 413 A.2d 581 (N.H. 1980); Festorazzi v. First National Bank of Mobile, 288 Ala. 645, 264 So.2d 496 (1972); Virginia National Bank v. United States, 443 F.2d 1030 (4th Cir. 1971); In Re Estate of Mangel, 51 Wis.2d 55, 186 N.W.2d 276 (1971); Wilson v. Flowers, 58 N.J. 250, 277 A.2d 199 (1971). However, we are unaware of any case authority permitting the scrivener of a will to testify for the purpose of giving his own opinion as to the proper legal interpretation of a provision in the will.