Estate of Thomas E. Neily, Sr. v. Town of Canaan

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0089, Estate of Thomas E. Neily, Sr. v.
Town of Canaan, the court on October 26, 2021, issued the
following order:

Having considered the brief, memorandum of law, and record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup. Ct.
R. 18(1). The plaintiff, the Estate of Thomas E. Neily, Sr., appeals an order of the
Superior Court (Bornstein, J.) granting summary judgment in favor of the
defendant, the Town of Canaan, with respect to the estate’s petition to quiet title
to three parcels of land that the Town had acquired by tax deed for nonpayment
of taxes. We affirm.

The properties at issue are located at 16 Depot Street in Canaan. Prior to
his death in September 2007, Thomas E. Neily, Sr. was the sole owner of the
properties. His will — which was proved and allowed by the probate court in
January 2008 — devised the properties to Linda Ware and Richard Watkins, Jr.,
as follows:

To Linda Ware and Richard Watkins, Jr., I give and devise the land
associated with the Canaan Cash Market, including all land and
buildings I own on the westerly side of Depot Street, including
property acquired from Northern Railroad and land behind the store
acquired from John Dow, subject however to the condition that if my
wife, Priscilla E. Neily, survives me, Linda Ware and Richard
Watkins, Jr., shall pay Priscilla E. Neily $1,500.00 per month until
she dies or until January 1, 2022, whichever occurs first.

In or about October 2007, Priscilla Neily gave written notice to the Town,
which she also filed in the probate court, of the devise to Ware and Watkins. See
RSA 554:18-a (2019). Although the probate court returned the notice to Priscilla
Neily in or about November 2007, the Town was not notified of that fact prior to
this litigation. Based upon the notice, the Town began sending biannual
property tax bills to Ware, Watkins, and, subsequently, to Watkins’ purported
grantee, Regina Jacobson. From 2007 through 2010, the Town received timely
tax payments. However, beginning in 2011, the taxes were no longer being paid,
and, in 2014, the Town acquired the properties by tax deed pursuant to RSA
chapter 80.

In or about December 2017, the estate, which had never been fully
administered, filed a petition to quiet title to the properties. Primarily, the estate
argued that, because title to the properties had never passed to Ware and
Watkins pursuant to the will, title remained with the estate, and, therefore,
because the estate was not given notice pursuant to RSA chapter 80 of the
impending tax liens and deeds, the Town’s tax deeds were invalid. The parties
filed cross-motions for summary judgment, and, in an order issued in January
2021, the trial court granted summary judgment in favor of the Town. The trial
court found, among other things, that, under well-established New Hampshire
law,

title to the Subject Property passed to Ware and Watkins upon the
Testator’s death. The undisputed material facts establish that the
Testator’s estate was not insolvent and had no debts and that the
devisees’ title was not subject to defeasance. They further show that
the Testator’s will was proved and allowed, or probated, on January
22, 2008. Consequently, it was effective to pass title to the devisees.

See, e.g., 7 Charles A. DeGrandpre, New Hampshire Practice: Wills, Trusts and
Gifts § 16.20, at 220 (4th ed. 2003) (observing that “[i]t is a well-established
common law rule in New Hampshire that title to real estate is vested in the heirs
or devisees immediately upon death of the owner, subject to the necessities of
administration such as the payment of debts, and no further action is required to
perfect title in the heirs or devisees” (quotation omitted)). Further, the trial court
found that “[n]either the widow’s failure to complete administration of her
husband’s estate nor the return to her of the Notice to Towns and Cities [under
RSA 554:18-a] vitiates to any degree the passage of title to the Subject Property
to the devisees.” The trial court explained that “[t]he Notice to Towns and Cities
does not operate, like a deed, to transfer title to the devisees,” but rather, “[i]t
simply notifies municipalities” of the transfer. See RSA 554:18-a. The trial court
denied the estate’s motion for reconsideration, and this appeal followed.

On appeal, the estate advances several arguments challenging the trial
court’s decision. “In reviewing a trial court’s rulings on cross-motions for
summary judgment, we consider the evidence in the light most favorable to each
party in its capacity as the non-moving party,” and, “if no genuine issue of
material fact exists, we determine whether the moving party is entitled to
judgment as a matter of law.” Langevin v. Travco Ins. Co., 170 N.H. 660, 663
(2018). “If our review of that evidence discloses no genuine issue of material fact
and if the moving party is entitled to judgment as a matter of law, then we will
affirm the grant of summary judgment.” Id. “We review the trial court’s
application of the law to the facts de novo.” Id.

As the appealing party, the estate has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the estate’s challenges to it, the
relevant law, and the record submitted on appeal, we conclude that the estate
has not demonstrated reversible error. See id.

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 In addition, we note that the estate argues that the trial court erred when it
found: (1) that the devise to Ware and Watkins was not subject to defeasance
based on the condition that they pay a monthly stipend to Priscilla Neily; and (2)
that, even if the devise was subject to defeasance based on that condition, there
was no admissible evidence tending to show that the condition had been
breached — in other words, that there was no admissible evidence tending to
show that Priscilla Neily had not received all of the specified payments during her
lifetime. Even if we were to agree with the estate that the trial court’s findings
were in error, we would nevertheless reach the same result.

Assuming, without deciding, that the devise to Ware and Watkins was
subject to defeasance based on the condition, the parties agree that any resulting
future interest in the properties would have been held by Priscilla Neily, not by
the estate. Indeed, the estate observes that “[n]either Priscilla, Ware or Watkins
appear to have regarded Mr. Neily’s will as creating a condition subsequent,” and
that “[i]t doesn’t appear that Mr. Neily wanted ‘to hold a string’ that he could use
to pull back the title to the subject real estate in the event [of] a breach of the
condition.” See Red Hill Outing Club v. Hammond, 143 N.H. 284, 287 (1998)
(stating that “[a] fee simple subject to condition subsequent is a conveyance of
land in which the grantor expressly retains the right of re-entry upon breach of a
stated condition, the exercise of which results in a forfeiture of estate for the
grantee,” and observing that we view such conditions with disfavor because of
their potential to cause a forfeiture of land (emphasis added)). Rather, the estate
contends that Thomas Neily intended for “Priscilla to have a power of sale
mortgage/the right of re-entry if the condition(s) in his will were broken.”
(Emphasis added.)

Accordingly, because the estate does not represent the interests of Priscilla
Neily — who, the trial court found, was aware of her rights under the will yet
never asserted a breach of the condition prior to her death in 2010 — the estate
lacks standing to challenge the validity of the Town’s tax deeds by asserting
Priscilla Neily’s rights. See Duncan v. State, 166 N.H. 630, 642-43 (2014)
(observing that, generally, standing “requires parties to have personal legal or
equitable rights that are adverse to one another, with regard to an actual, not
hypothetical, dispute, which is capable of judicial redress” (citations omitted)).

To the extent that the Town requests an award of attorneys’ fees with
respect to this appeal, its request is denied. See Sup. Ct. R. 23. To the extent
that the Town requests an award of costs incurred with respect to this appeal, its

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request is denied without prejudice to its filing a properly-supported motion for
same pursuant to Rule 23.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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