2019-0590, In re Estate of Lorraine R. O'Neill

issues to the probate division for further proceedings. insolvent. We affirm the grant of administration and remand all remaining New Hampshire had made a judicial determination that the estate was Hampshire decedent, and the petition did not represent that a court outside of grant the petition because it was filed on behalf of the estate of a non - New other things, that the probate division lacked subject matter jurisdiction to administration of certain New Hampshire real estate. O’Neill argues, among division of the Circuit Court (Moran, J.) granting a pet ition for ancillary estate Lorraine R. O’Neill Revocable Trust – 2004, appeals an order of the probate BASSETT, J. The appellant, Paul T. O’Neill, acting as t rustee of the

Dugan, administrator of the Estate of Lorraine R. O’Neill. Holmes and Alexandra S. Cote on the brief, and Ms. Cote orally), for John G. McLane Middleton, Professional Association, of Manchester (Ralph F.

the Lorraine R. O’Neill Revocable Trust – 2004. Marvelley on the brief, and Mr. McEachern orally), for Paul T. O’Neill, trustee of Shaines & McEachern, P.A., of Portsmouth (Alec McEachern and Jacob

No. 2019 - 0590 10th Circuit Court - Brentwood Probate Division

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

probate division had jurisdiction, the trial court committed plain error when it jurisdiction to grant the petition for administration, and that, even if the On appeal, O’Neill argues that the probate division lacked subject matter

was without authority to rule on the motion. See RSA 567 - A:7 ( p. 2 20 19). T rial C ourt (Weaver, J.) ruled that, because O’Neill had appealed its decision, it with this court challenging the grant of administration. On December 11, the 9 — before the trial court had ruled on the motion — O’Neill filed an appeal On September 20, O’Neill filed a motion for reconsideration. On O ctober

13. decision). According to O’Neill, he received the notice of decision on September reconsideration must be filed within 10 days of the date of the notice of September 19. See Prob. Div. R. 59 - A (1) (stating that a motion for been granted and that any motion for reconsideration had to be filed by September 9, the court iss ued a notice of decision stating that the petition had petition was filed, and the court granted the petition on August p. 2 23. On O’Neill, that the petition for administration had been filed. No objection to the On July 10, the trial court issued a notice to interested parties, including

not list any property in New Hampshire other than the real estate. decedent owned in New Hampshire at the time of her death. The petition did Massachusetts probate proceedings, and an itemized list of real estate that the an authenticated copy of the decedent’s will, copie s of documents filed in the ancillary administrator of the decedent’s estate. Attached to the petition were probate division of the New Hampshire C ircuit C ourt, seeking appointment as On June 19, p. 2 2019, Dugan fi led a Petition for Estate Administration in the

representative. the agreement in May p. 2 2018, and Dugan was appointed as personal decedent’s estate in a supervised administration. The probate court approved appellee, John G. Dugan, would be appointed as p ersonal r epresentative of the 2018, the family members reached an agreement which provided that the decedent’s children regarding the proper administration of her estate. In April p ersonal r epresentative of the estate. D isputes later arose among the and Family Court for p robate of the decedent’s w ill and for his a pp ointment as In November 2015, O’Neill filed a p etition in the Massachusetts Probate

decedent’s children, and a t rustee of the trust. to the d ecedent’s death. Paul T. O’Neill — the appellant — is one of the Trustees of the Lorraine R. O’Neill Revocable Trust – p. 2 2004, a trust created prior Hampshire. In her will, all of the New Hampshire real estate was devised to the death, the decedent owned several parcels of real estate located in New decedent was survived by four children and one grandchild. At the time of her undisputed. In June 2015, Lorraine R. O’Neill died in Massachusetts. The The following facts are supported by the record, or are otherwise p. 3 3

547: p. 3 3, I(b) - (c) (2019). Here, Dugan, as personal representative of the of deceased persons,” and “[t] he interpretation and construction of wills.” RSA composition, administration, sale, settlement, and final distribution of estates administration and all matters and things of probate jurisd iction relating to the T he probate division has exclusive jurisdiction over “[t] he granting of

N.H. at 74 p. 3 3. not look beyond it for further indications of legislative intent.” Rogers, 171 (quotation omitted). “When the language of a statute is unambiguous, we do In the Matter of McAndrews & Woodson, 171 N.H. 214, 219 - 20 (2018) might have said or add language that the legislature did not see fit to include.” intent from the s tatute as written and will not consider what the legislature according to its plain and ordinary meaning.” Id. “We interpret legislative the statutory language, and whenever possible construe that language the statute considered as a whole.” Rogers, 171 N.H. at 743. “We first look to are the final arbiter of the intent of the legislature as expressed by th e words of D., 162 N.H. 232, 234 - 35 (2011). “In matters of statutory interpretation, we probate division requires us to engage in statutory interpretation. In re Athena N.H. 738, 742 - 43 (2019). Accordingly, determining t he jurisdiction of the powers are limited to those conferred on it by statute. Rogers v. Rogers, 171 The probate division is not a court of general jurisdiction; rather, its

including on appeal, and may not waive subject matter jurisdiction.” Id. may challenge subject matter jurisdiction at any time during the proceeding, case concerning subject matter over which it has no jurisdiction.” Id. “A party of Cole, 171 N.H. 40 p. 3 3, 408 (2018). “A court lacks power to hear or determine a authority to adjudicate the type of controversy involved in the action.” Appeal 144, 149 (2011) (quotation omitted). “In other words, it is a tribunal ’ s conduct of persons or the status of things.” Gordon v. Town of Rye, 162 N.H. and the type of relief sought; the extent to which a court can rule on the “Subject matter jurisdiction is jurisdiction over the nature of the case

the petition. We disagree. division to administer, and therefore the trial co urt lacked jurisdiction to grant O’Neill argues, there is no property located in New Hampshire for the probate demonstrate an interest in any New Hampshire property. Consequently, filed as a claim against the value of the real estate, the estate did not insolvent, or that any unpaid claim in the Massachusetts proceeding could be petition did not establish that a Massachusetts court had declared the estate Hampshire other than the real estate. Third, he argues that, because the the petition, the estate did not claim an interest in any property loca ted in New decedent’s estate is determined to be insolvent. Second, he observes that, in death, and that the trust may be divest ed of the real estate only if the Hampshire real estate passe d to the trust immediately upon the decedent’s O’Neill asserts that, under the decedent’s will and New Hampshire law, the New granted the petition. The jurisdictional argument has multiple parts. First, p. 4 4

does not have subject matter jurisdiction over a petition for administration estate’s insolvency. It would make little sense to hold that the probate division determine whether an administrator may sell real estate based upon the probate division has jurisdiction to settle disputes over real es tate and administration is granted and an administrator has been appointed, the subject matter jurisdiction expressly provides that, after a petition for Accordingly, the statutor y scheme setting forth the probate division’s

RSA 559:1 (20 19). apply for a license to sell from the probate division. See RSA 55 p. 4 4:17 (20 19); real estate in order to satisfy the debts of an estate, t he administrator must inventory. See Prob. Div. R. 105 - A. Finally, before an administrator may sell See RSA 554:1, I (2019). A n interested party has the right to object to the administrator is required to file a complete inventory of the decedent’s estate. (2009). In a ddition, within 90 days of the appointment of an admi nistrator, the Omnibus Justice Act of 1993.” In re Estate of Porter, 159 N.H. 212, 214 encompass disputes concerning the real estate of a decedent through the estate, “the legislature effectively expanded the probate court’s jurisdiction to division has not always ha d jurisdiction to settle disputes over title to real title shall be conclusive). We have recognized that, although the probate against the es tate, and stating that the probate division’s judgment regarding listed in the estate of a deceased person to bring a declaratory judgment action 547:11 - b (20 19) (allowing any person claiming title to real or personal property bring a quiet title action in the probate division against the estate); RSA title to real or personal property listed in the estate of a deceased person to pursuant to RSA 547:11 - b); RSA 547:11 - c (20 19) (allowing any person claiming of real estate pursuant to RSA 547:11 - c and declaratory judgment actions (m) (providing the probate division with jurisdiction over petitions to quiet title has jurisdiction to settle disputes over title to real estate. See RSA 547:3, I(l) - O’Neill ’s argument fails to account for the fact that the probate division

interest in, the real estate. jurisdiction because the estate did not demonstrate that it had title to, or an in the real estate. In essence, O’Neill argues that the probate division lacked judicial determination of insolvency, the decedent’s estate has no legal interest the trust immediately upon the decedent’s death, and therefore, absent a matter jurisdiction because the New Hampshire real estate at issue passed to Nonet heless, O’Neill argues that the probate division lacked subject

administration should be granted. probate division with the power to determine whether such a petition for RSA p. 5 5 p. 4 47:3, I(b). Therefore, the plain language of RSA 547:3 provides the and it “relat [es] to” the administration and settlement of the decedent’s estate. decedent’s will. T he petition directly involves the “granting of administration,” asserting an interest in New Hampshire real estate, attaching a copy of the decedent’s estate, filed a petition for administration in the probate division 5

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

further proceedings consistent with this opinion. accordingly, we affirm the trial court’s grant of administration, and remand for issues that should be address ed by the probate division in the first instance; O’Nei ll’s arguments. O’Neill’s non - jurisdictional arguments involve substantive ruled on the motion to reconsider, the trial court never address ed the merits of In addition, because O’Neill filed an appeal in this court before the trial court was filed more than two months after the court provided notice of the petition. opposing the grant of administration in his motion for reconsideration, which O’Neill’s arguments. As O’Neill acknowledges, he first raise d arguments granted the petition for administration. We decline to address the merits of subject matter jurisdiction, the trial court committed plain error when it O’Neill also argues that, even assuming that the probate division had

not err when it ruled on the petition. jurisdiction to rule on the petition. Therefore, we find that the trial court did Hampshire, and no objection was filed, the probate division had subj ect matter representation that the estate had an interest in property located in New We conclude that, because th e petition for administration included a

See RSA p. 5 559:18 (20 19). administrator may also sell real estate with the consent of the heirs or devisees. estate be disposed of for any lawful purpose. See RSA 559:17 (20 19). An apply for a license to sell real estate when the decedent’s will provides that real sold even when the estate is not insolvent. For example, an administrator may little sense because real estate listed in a petition for administration may be McAndrews, 171 N.H. at 219 - 20. Moreover, such a requirement would make the statute whe re the legislature did not see fit to include one. See estate insolvent. See RSA 547:3. We decline to read such a requirement into New Hampshire estate must demonstrate that a foreign court has declared the jurisdiction over an ancillary petition for administration of real estate, the non - Nor does RSA 547:3 require that, in order for the probate division to h ave

representation. division is not required to sua sponte question the accuracy of that interest in property in New Hampshire, and no objection is filed, the probate petition for administration includes a representation that the estate has an to all real estate listed in the petition based upon insolvency. Whe n, as here, a unless the estat e demonstrates, at the time the petition is filed, that it has title