CHAPTER 109
SB 488 – FINAL VERSION
2008 SESSION
03/09
SENATE BILL 488
This bill clarifies the jurisdiction of probate courts, including matters over which the probate court and the superior court exercise concurrent jurisdiction.
This bill is a request of the supreme court.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
08-2836
03/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eight
AN ACT relative to jurisdiction of the probate courts and superior courts.
Be it Enacted by the Senate and House of Representatives in General Court convened:
109:1 Authority of Selectmen to Sell Land; Reference Added. Amend RSA 41:14-a, II(c) to read as follows:
(c) Any real estate that has been given, devised, or bequeathed to the town for charitable or community purposes except as provided in RSA 498:4-a or RSA 547:3-d.
109:2 Cy Pres Doctrine. Amend RSA 498:4-a to read as follows:
498:4-a Cy Pres Doctrine.
I. The superior court shall exercise jurisdiction pursuant to RSA 498:4-a through RSA 498:4-e only where the claims or defenses raised are related to a matter otherwise pending before or within the jurisdiction of the superior court. In all other cases involving the doctrine of cy pres, jurisdiction shall lie in the probate court.
II. If property is or has been given in trust to be applied to a charitable purpose, and said purpose or its application is or becomes impossible or impracticable or illegal or obsolete or ineffective or prejudicial to the public interest to carry out, the trust will not fail. Upon petition by the trustee or trustees or the attorney general, the superior court may direct the application of the property to some charitable purpose which is useful to the community, and which charitable purpose fulfills as nearly as possible the general charitable intent of the settlor or testator. In applying the doctrine of cy pres, the court may order the distribution of the trust assets to another charitable trust or to a charitable corporation to be held and administered by it in accordance with the terms of the governing instrument as said terms may be modified by the application of cy pres under this section and RSA 498:4-b.
[II.] III. Prior to any court proceeding under this chapter on the intent to offer for sale or change the use of any land, buildings, or both, given, devised, or bequeathed to the town for charitable purposes, the municipality shall hold at least one public hearing with no less than 14 days notice.
109:3 Probate Court Jurisdiction. Amend RSA 547:3, II-III to read as follows:
II. The probate court shall have concurrent jurisdiction with the superior court over the following:
(a) Subject to RSA 498:4-a, cases involving charitable uses and trusts other than those trusts described in RSA 564-A:1, I, over which the probate court has exclusive jurisdiction as provided in RSA 547:3, I(c) and (d).
(b) Durable powers of attorney under RSA 506:6 and 506:7.
(c) Waivers for marriage of minors pursuant to RSA 457:6-457:7.
(d) Ancillary matters as defined in RSA 547:3-l.
(e) Petitions for partition pursuant to RSA 547-C.
III. The probate court shall have concurrent jurisdiction with the district court over ancillary matters as defined in RSA 547:3-l.
IV. Nothing in this section shall be construed to confer upon the probate court any additional authority over [intervivos] inter vivos trusts beyond that authority exercised by the superior court prior to the adoption of this section.
109:4 Probate Courts; Equity Jurisdiction. Amend RSA 547:3-b to read as follows:
547:3-b Equity Jurisdiction. The probate court shall have the powers of a court of equity in all cases within its subject matter jurisdiction in which there is not a plain, adequate, and complete remedy at law [involving partition, guardianships, conservatorships and the probate of an estate and in all other like cases cognizable in a court of equity arising under RSA 547, RSA 547-C and RSA 552:7. The probate court shall have concurrent jurisdiction with the superior court in cases involving charitable uses and trusts other than those trusts described in RSA 564-A:1, I, over which the probate court has exclusive jurisdiction as provided in RSA 547:3, I(c) and (d)]. The court may hear and determine such cases according to the course of equity, and may grant writs of injunction whenever the same are necessary to prevent fraud or injustice.
109:5 Cy Pres Doctrine. Amend RSA 547:3-d to read as follows:
547:3-d Cy Pres Doctrine.
I. If property is or has been given in trust to be applied to a charitable purpose, and said purpose or its application is or becomes impossible or impracticable or illegal or obsolete or ineffective or prejudicial to the public interest to carry out, the trust shall not fail. Upon petition by the trustee or trustees or the attorney general, the probate court may direct the application of the property to some charitable purpose which is useful to the community, and which charitable purpose fulfills as nearly as possible the general charitable intent of the settlor or testator. In applying the doctrine of cy pres, the court may order the distribution of the trust assets to another charitable trust or to a charitable corporation to be held and administered by it in accordance with the terms of the governing instrument as said terms may be modified by the application of cy pres under this section and RSA 547:3-e.
II. Prior to any court proceeding under this chapter on the intent to offer for sale or change the use of any land, buildings, or both, given, devised, or bequeathed to the town for charitable purposes, the municipality shall hold at least one public hearing with no less than 14 days notice.
109:6 New Section; Probate Courts; Jurisdiction over Ancillary Matters. Amend RSA 547 by inserting after section 3-k the following new section:
547:3-l Jurisdiction over Ancillary Matters. Ancillary matters are claims for liquidated or non-liquidated damages or for the recovery of money or property brought on behalf of an estate, trust, conservatorship, or guardianship against a third party or brought by a third party against an estate, trust, conservatorship, or guardianship including claims against a fiduciary bond and entry or possessory actions; provided, however, that with respect to any such claims in which the right to trial by jury exists and is demanded by any party, or any claims for penalties or other relief under a statutory or regulatory enactment providing for enforcement through or review by the superior court, the superior court shall have exclusive jurisdiction.
109:7 Disputed Partition of Real Estate; Petition. Amend RSA 547-C:2 to read as follows:
547-C:2 Petition. A petition may be filed by such person in the superior or probate court in the county in which the property or any part of the property lies or is then located, particularly describing the property, the names of all owners or persons interested, if known, and the share or interest of the petitioner in the property and praying for partition or division of the property; provided, however, where there is a related pending matter in either court, jurisdiction for the related partition action shall lie with the court having jurisdiction over the underlying matter; and provided further that in any such case where the right to a trial by jury is guaranteed by the constitution and is claimed by any party, jurisdiction shall lie exclusively in the superior court. Upon petition [by the administrator] or upon its own motion, the court may cause any property to be partitioned or divided and awarded or assigned in accordance with procedures described in this chapter. Nothing in this chapter is intended to abrogate common law or statutory authority of the superior and district courts to adjudicate issues of personal property between parties engaged in litigation before those courts.
109:8 Undisputed Partition of Real Estate; Petition. Amend RSA 547-C:19 to read as follows:
547-C:19 Petition. If there is no dispute, a petition for partition shall be filed [with the judge of probate for] in the county where the property or the greater part thereof lies or is then located[, who]. The judge shall appoint a time and place of hearing on the petition.
109:9 Unequal Division and Sale. Amend RSA 547-C:30 to read as follows:
547-C:30 Construction. Proceedings under this chapter shall be remedial in nature. The provisions of this chapter are to be liberally construed in favor of the exercise of broad equitable jurisdiction by the [probate] court in any proceeding pending before it.
109:10 Repeal. The following are repealed:
I. RSA 547:3, I(k), relative to jurisdiction over petitions for partition.
II. RSA 547-C:3, relative to partition appeals.
109:11 Effective Date. This act shall take effect 60 days after its passage.
Approved: May 28, 2008
Effective Date: July 27, 2008