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Bar Journal - September 1, 2000

LEX LOCI: A Survey of Recent New Hampshire Supreme Court Decisions


The recent decisions of the Supreme Court include the first by newly appointed Justices Dalianis and Nadeau, as well as others by superior court judges sitting in for justices sidelined by the impeachment inquiry.  A very surprising decision in the probate field is an opinion by Justice Nadeau, In re Estate of Robbins, decided July 5, 2000.  This case involved our venerable pretermitted heir statute, RSA 551:10, and its application to the will and revocable trust executed by the decedent.  Both the decedent’s will and revocable trust left nothing to her natural daughter and adopted son, but rather left her property to a sister and niece.

The testator’s will contained a commonly found provision as follows:

PRETERMITTED HEIR: Except as otherwise expressly provided by this will and the Elizabeth C. Robbins Revocable Trust, I intentionally make no provisions for the benefit of any other heir of mine except as their [sic] rights are expressly set out in Elizabeth C. Robbins Revocable Trust.

The Cheshire County Probate Court, in an opinion by Judge Espiefs, had found that although neither the trust nor will of the decedent did not directly refer to the petitioners, the clause quoted above with its reference to “any other heir of mine” was a sufficient indirect reference, the probate court relying on the old case of Smith v. Sheehan, 67 NH 344 (1892).

The Supreme Court disagreed and reversed the probate court.  The Court first distinguished the Smith Case which had found that a reference “to my legal heirs” in a will was a sufficient reference to deprive a child of the protection of the pretermitted heir statute.  The Supreme Court reasoned that the Smith Casewas decided under an earlier version of RSA 551:10 and was not factually similar to the case before it.  Justice Nadeau’s opinion overruled the Smith Case, concluding as follows:

Accordingly, we hold today that a testator’s use of the term “heirs” is insufficient to preclude application of the pretermitted heir statute.  The words “children” or “issue” must be used.  To the extent the holding in the Smith decision is inconsistent, it is overruled.

At the time this column went to press, the opinion was subject to a motion for reconsideration.

It is with deep anguish that the author sets out to write this column.  How can one comment upon the cases before the Court without commenting upon the extraordinary process of the consideration of the impeachment of  three of our New Hampshire Supreme Court justices by the House of Representatives?  This column goes to print almost three months before it is published so that by the time it is published, the outcome of the House’s extraordinary inquiry will be known.  However, in extraordinary times, an extraordinary comment by the author is appropriate, or even required.

As the author is writing this, the House of Representatives, sitting as a court of grand inquest (pt. 2, art. 17, N.H. Constitution), has approved a bill of impeachment involving four counts against the Chief Justice of the New Hampshire Supreme Court.  Articles of Impeachment against Justices Horton and Broderick have failed, but by suprisingly close margins.  The author is in agony over this development.  He knows all of the recent justices of the Court and believes that they are well-meaning individuals, each having a high degree of integrity and principle.  Mistakes and errors of judgment may have been made, but there has been little evidence of bad intent.  It does not appear to the author at this point that there is a valid basis for conviction in the Senate of the Chief Justice.

Recently, the author was chastised by a representative to the General Court, who told him that, although the author writes an “erudite” column concerning the decisions of the Court, the author has never criticized the Court directly.  This charge is true.  The author has never felt that it is his job to critically comment on the individuals of the Court, but rather to comment, often times favorably and sometimes unfavorably, upon the decisions written by the Court.  This column is intended to focus on the Court’s decisions and decision-making process, not upon the individual members of the Court.  The author’s task is not to personalize the issues before the Court but, hopefully, to help educate the relatively small number of New Hampshire lawyers who may read his column while keeping the rather dry subject matter interesting.

It appears at this point in time (July 13, 2000) that several mistakes have been made by the individual members of the Court and they will be, or already have been, held accountable for those mistakes by the people of New Hampshire.  The justices themselves have admitted that if they had a second chance, they would have done things differently.  It also appears, however, that had not this conduct come to light by the actions of the clerk of the Supreme Court, they might not have done differently and citizens of our state would have been, and have been, unfairly treated.

For a Court who has lectured New Hampshire attorneys and the public about the appearance of impropriety, this was a Court that seemingly did not understand the difference between the appearance of impropriety and the impropriety of the act itself.  “No score, no foul,” is hardly the proper approach to matters of ethical concern.  The public perception about the conduct of the Court is that the Court did not understand the distinction.  The public got it but the justices did not.  As citizens, judges and members of the Bar, we are the lesser for their failure to meet the high standards that they themselves have imposed upon the members of the Bar and the public.

However, the blame does not fall exclusively on the judicial branch.  It is clear, for example, that influential members of the legislative branch sought to achieve personal goals in pending litigation in the courts by opposing proposed legislation that would properly fund our judicial system.  More important, if our courts have failed us, so has the General Court which has perennially failed to financially support at a reasonable level the third branch of our republican system of government, our independent court system.

The author is dumbfounded to hear legislators express surprise at the sorry state of our court’s filing system or the “backroom” operations of our judicial system.  The entire third branch of government is appropriated by the General Court only a very small percentage of state revenues.  In recent years, appropriations have not been adequate to provide our court system with modern, up-to-date, office filing systems, communications systems, computers, faxes, copiers, personnel, etc., all of which are necessary to the smooth working of a 21st  century judicial system.  Almost every law office in our state is more equipped to handle its law business than is our court system.  Until the members of the legislation understand that a properly funded third branch of government is the ultimate protection for our citizens, all of New Hampshire’s citizens will suffer.

There is no doubt that the incoming legislature will enact far-reaching legislation that will substantially alter the way our court system works.  Some changes are understandable and needed.  For example, a completely influence-free system of choosing alternate justices to sit when there are voids because justices have recused themselves is an imperative and it is the legislature’s prerogative to establish a procedure in which the public can have confidence that it is fair and impartial.  Similarly, separating the judicial conduct committee from the Supreme Court appears to the author to be a desirable goal.  On the other hand, making judges serve for limited times encourages judges to decide cases with a view to their reappointment, a hardly desirable result.

The author has previously written about his concerns about the danger to the independence of the judiciary and his worry that the legislature, punishing the judges for the unpopular Claremont decisions and for their inappropriate behavior, will throw out the baby with the bath water.  We need an independent, properly funded judiciary and, although changes need be made as each of the testifying justices themselves stated, it’s important not to forget that a judiciary under the thumb of the legislature or the executive would be far worse than the imperfect judiciary that we have.

It is not possible to have a perfect judicial system and we must understand that it is human nature to make mistakes.  To not make mistakes is the mark of a truly unimaginative individual.  Or to make it personal to the author, “there, but for the grace of God, go I.”  As newspaper tycoon James Gordon Bennett was quoted as saying, “I have made mistakes but I have never made the mistake of claiming that I never  made one.”1

1. Peter’s Quotations, p. 181 (1977)

The Author
Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson & Middleton, P.A., Portsmouth, New Hampshire.


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