In re Estate of Locke

813 A.2d 1172, 148 N.H. 754, 2002 N.H. LEXIS 211
CourtSupreme Court of New Hampshire
DecidedDecember 23, 2002
DocketNo. 2001-680
StatusPublished
Cited by7 cases

This text of 813 A.2d 1172 (In re Estate of Locke) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Locke, 813 A.2d 1172, 148 N.H. 754, 2002 N.H. LEXIS 211 (N.H. 2002).

Opinion

Broderick, J.

The appellants, Jean Barber and Marion Hayes, appeal the decision of the Merrimack County Probate Court (O’Neill, J.) determining the heirs of the estate of Geraldine M. Locke under RSA 561:1,11(d) (1997). We affirm.

The relevant facts are not in dispute. Geraldine M. Locke died intestate on September 23, 1999. At her death, Locke had no spouse, children or siblings; her parents and her maternal and paternal grandparents were deceased. Locke’s nearest kin, the descendants of her maternal and paternal grandparents, were as follows. On her maternal grandparent side, Locke was survived by Barber and Hayes, both of whom are first cousins of the decedent (fourth degree of kinship to the decedent). On her paternal grandparent side, Locke was survived by the appellees, Ann Stackpole de Pasquale, Carl Stackpole, Frank Stackpole, and Raelene E. Davis Hale, all of whom are first cousins once removed of the decedent (fifth degree of kinship to the decedent). Subsequent to Locke’s death, the administratrix of the estate filed a petition for determination of heirs. After a hearing, the probate court ruled that under RSA 561:1, 11(d), the appellees were entitled to a distribution of one-half of Locke’s estate, that they took equally as to the one-half share of the estate, and that RSA 561:3 (1997) did not preclude them from sharing in the estate as they did not take by representation. This appeal followed.

The appellants argue that RSA 561:1,11(d) and RSA 561:3 provide that first cousins (fourth degree) are entitled to the entire estate to the exclusion of first cousins once removed (fifth degree), because no representation is allowed to collaterals beyond the fourth degree. We will not disturb the probate court’s decree unless it is unsupported by the evidence or plainly erroneous as a matter of law. In re Antonio W., 147 N.H. 408, 412 (2002). The probate court’s interpretation of a statute is a [756]*756question of law, which we review de novo. Crowley v. Frazier, 147 N.H. 387, 389 (2001).

This court is the final arbiter of the intent of the legislature as expressed in the words of a statute. Appeal of Estate of Van Lunen, 145 N.H. 82, 86 (2000). When construing a statute’s meaning, we first examine its language, and where possible, we ascribe the plain and ordinary meanings to words used. Id. Furthermore, when examining statutory language, we construe all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result. Id.

RSA 561:1,11(d) reads:

If there is no surviving issue, parent or issue of a parent but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

RSA 561:3 reads:

No representation shall be allowed among collaterals beyond the fourth degree of relationship to the decedent.

The statute clearly and unambiguously states that if the decedent has no surviving issue, parent or issue of a parent, but is survived by the issue of grandparents on both the paternal and maternal sides, half of the estate passes to the issue of the paternal grandparents if both paternal grandparents are deceased, while the remaining half of the estate passes to the issue of the maternal grandparents if both maternal grandparents are deceased. See In re Estate of Martineau, 126 N.H. 250, 251 (1985) (“Since in this case there are survivors in both the maternal and paternal lines, the court properly ordered that the estate be divided into halves, with one half going to the survivors in each line.”); 11 C. DeGrandpre, New Hampshire Practice, Probate Law and Procedure § 53-9(d), at 77 (2001).

Here, after the estate is properly divided into halves, the statute unambiguously provides for the further independent distribution of each [757]*757half. Specifically, the issue of the paternal grandparents share equally in one-half of the estate if the issue are all of the same degree of kinship to the decedent. RSA 561:1, 11(d). Only if the issue of the paternal grandparents are of unequal degree of kinship do those issue of more remote degree take by representation. Id. In addition, the statute provides for the other half of the estate to pass to the maternal relatives in the same manner, i.e., the issue of the maternal grandparents share equally in one-half of the estate if the issue are all of the same degree of kinship to the decedent.

The appellants contend that a correct reading of the statute, in conjunction with the limitation of representation to the fourth degree of kinship in RSA 561:3, would have us compare the degree of kinship between the issue of the paternal and maternal grandparents and distribute the entire estate to whichever issue have the closer degree of kinship to the decedent. Here, such a reading would favor the issue of the maternal grandparents, as they are first cousins and not first cousins once removed. Such a reading, however, ignores the clear statutory mandate that under such circumstances as exist in this case, the estate is first divided into equal halves. The statute then provides direction for the distribution of each half in turn. We decline to ignore the statutory mandate.

In addition, distribution of the estate based upon a comparison of the degree of kinship between the issue of the paternal and maternal grandparents and the limitation of RSA 561:3 could often result in the entire estate being distributed to either the paternal or maternal side. Only if the degree of kinship on both the paternal and maternal sides is equal would an equal distribution be made. Such a reading, however, would render the final clause of RSA 561:1, 11(d) (providing for the entire estate to pass to one side when there are no surviving issue of grandparents on the other side) superfluous in such cases. The legislature is presumed not to have used superfluous words. See Binda v. Royal Ins. Co., 144 N.H. 613, 616 (2000).

The appellants further contend that by reading RSA 561:1, 11(d) and RSA 561:3 together, the term “representation” is defined in a manner which prohibits the first cousins once removed from taking in this case. Specifically, the appellants contend that representation applies to the issue of the paternal and maternal grandparents as a single group, and that representation beyond the fourth degree of kinship to the decedent is prohibited. Consequently, the appellants argue that if the first cousins once removed were to share in the estate, it would be pursuant to [758]*758representation, but because representation is prohibited beyond the fourth degree of kinship, they cannot share. We disagree.

“Representation” is not defined in either RSA 561:1, II(d) or RSA 561:3. We need not define “representation” here, however, as it is not implicated in this case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In the Matter of Brian Colsia and Allana Kelley-Colsia
Supreme Court of New Hampshire, 2022
In re Trust of Mary Baker Eddy
212 A.3d 414 (Supreme Court of New Hampshire, 2019)
In re Estate of Anthony Mesiti
Supreme Court of New Hampshire, 2019
In re Juvenile 2004-789-A
897 A.2d 940 (Supreme Court of New Hampshire, 2006)
DeLucca v. DeLucca
871 A.2d 72 (Supreme Court of New Hampshire, 2005)
In re Estate of King
817 A.2d 297 (Supreme Court of New Hampshire, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
813 A.2d 1172, 148 N.H. 754, 2002 N.H. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-locke-nh-2002.