Opinion
No. 4358.
Submitted December 7, 1954.
Decided December 15, 1954.
Upon waiver by a widow of the provisions of her deceased husband's will in her favor, her distributive statutory share in his real estate located in this state is to be determined by the law of this state notwithstanding the fact that he died domiciled elsewhere.
The fact that the widow would receive a larger share of her husband's estate by applying the law of this state where the real estate is located than she would in the domiciliary administration in such other state is immaterial in determining which law should govern.
PROBATE APPEAL, (R. L., c. 365, s. 1) in the estate of Epps E. Sinclair brought by the appellant, brother of the decedent against the appellee, widow of the decedent. The following reserved case was transferred by Griffith, J.
"The appeal is from a decree of the Judge of Probate for the County of Merrimack dated January 7, 1954, setting off and assigning to the widow $10,000 in value of the real estate of the deceased located in Concord, New Hampshire and one-half in value of the remainder thereof and appointing a committee of three persons pursuant to Chapter 361, Revised Laws, to make a division thereof.
"Epps E. Sinclair died domiciled in Rutland, Vermont, on September 6, 1951, leaving no surviving issue. He was survived by his widow, the appellee and by his brother the appellant, who are the sole persons who appear to be interested in his estate. His widow, Edith M. Sinclair, was duly appointed administratrix of his estate by decree of the Probate Court for the District of Rutland, Vermont, dated September 17, 1951. His brother, Quincy V. Sinclair was duly appointed Administrator of his estate in New Hampshire by decree of the Probate Court for Merrimack County, dated October 19, 1951.
"At the time of his death, the deceased owned certain real estate in Concord, New Hampshire, consisting of two tenement properties in Concord proper and an undivided one-half interest in a summer cottage on the Contoocook River.
"The appellee, Edith M. Sinclair, duly filed in the Registry of Probate for Merrimack County, her waiver of dower and homestead and claim to her distributive share in the decedent's real estate in the value of $10,000 outright and one half in value in excess of said sum, remaining after the payment of debts and expenses of administration. This waiver was filed and recorded seasonably within one year after the decease of the decedent.
"By his probate appeal, the appellant has placed in issue the question whether the amount of real estate to be awarded to the appellee as widow is governed by the law of the State of Vermont or the law of the State of New Hampshire.
"It appearing that justice requires the determination of a certain question of law in advance of further proceedings, the following question of law is reserved and transferred without ruling:
"Should the law of New Hampshire or the law of Vermont be applied in determining what share of the real estate of the decedent situated in Concord, New Hampshire, is to be awarded to the widow, Edith M. Sinclair?"
George P. Cofran for the appellant, furnished no brief.
Upton, Sanders Upton and Richard F. Upton for the appellee.
It is a rule of general application that the descent of real property is governed by the law of the state where the property is located. Meader v. Place, 43 N.H. 307; In re Clemmons Estate, 242 Iowa 1248. Since the law of the situs controls, the domicile of the intestate is unimportant. 2 Beale, Conflict of Laws, s. 245.1; Goodrich, Conflict of Laws (3rd ed.) s. 164; see also, the dictum in Anderson v. French, 77 N.H. 509, 511. This rule finds specific application in determining the rights of a widow in the real estate of her intestate husband. "The existence and extent of a common law or statutory interest of a surviving spouse in the land of a deceased spouse are determined by the law of the state where the land is." Restatement, Conflict of Laws, s. 248 (1). While it has been said that there are logical reasons and policy arguments for a different rule, the great weight of authority supports the views of the Restatement. Marsh, Marital Property in Conflict of Laws 136-138 (1952); International Paper Co. v. Bellows Falls Canal Co., 91 Vt. 350.
The widow by proceeding to assert her rights in the ancillary administration in New Hampshire (Clark v. Clement, 33 N.H. 563), obtains a larger share of the value of the real estate than she would in the domiciliary administration in Vermont. R. L., c. 359, s. 11, as amended by Laws 1951, c. 29, s. 4; Vermont Statutes (1947 Revision) c. 144. This fact is immaterial in deciding whether the governing law is in New Hampshire or Vermont. See In re Bassford's Will, 127 N.Y.S. 653. The law of the situs of the real estate has been applied in determining the procedure and time limitations that a widow must conform with in order to claim dower or its statutory equivalent in the real estate of her deceased husband. Bish v. Bish, 181 Md. 621. Although there is limited authority on the point, the cases generally hold that in computing the value or interest due the surviving spouse the value of the real property of the decedent in other states is not to be taken into consideration. Anno. 66 A.L.R. 733. This is based on the proposition that only the state where the land is determines the method, extent and amount of succession thereto. Restatement, Conflict of Laws, s. 470, comment e; Gaskins v. Gaskins, 311 Ky. 59.
While an estate is a single thing for practical purposes and its unitary character should be emphasized for the convenient administration of estates at the domicile, there are persuasive reasons why the law of the domicile has not been applied to determine rights in real estate. "Any supposed desirability or convenience in the administration of estates arising from this would certainly be counterbalanced by the inconvenience of searching title and the impossibility of determining the validity of title if such foreign judgments are considered as directly affecting the title to land . . . The domicil theory would make difficult, even impossible, the tracing of title to land." Stimson, Conflict of Laws and the Administration of Decedents' Real Estate, 6 Vanderbilt L. Rev. 545, 548 (1953). See also, introductory note to chapter 11, Administration of Estates, Restatement, Conflict of Laws 559, 560.
Accordingly we conclude that the appellee's share in the real estate of the decedent is determined by the law of New Hampshire. Stimson, supra, 560; 3 Beale, Conflict of Laws 1444.
Remanded.
All concurred.