In re Estate of Marc F. Thurrell

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

3rd Circuit Court-Ossipee Probate Division
Case No. 2023-0528
Citation: In re Estate of Thurrell, 2024 N.H. 66

IN RE ESTATE OF MARC F. THURRELL

Submitted: June 6, 2024
Opinion Issued: December 10, 2024

Sager & Smith, PLLC, of Ossipee (Weston R. Sager and Donald M. Smith
on the brief), for the petitioner.

Harman Law Offices, of Exeter (Terrie Harman and Kathleen McKenzie on
the brief), for the respondent.

BASSETT, J.
[¶1] The respondent, Linda P. Thurrell, appeals two orders from the
Circuit Court (Moran, J.) ruling that RSA 551:12, New Hampshire’s anti-lapse
statute, applies to the will of the decedent, Marc F. Thurrell. On appeal, the
respondent argues that the trial court erred in applying the anti-lapse statute
to the will because the decedent intended that, if the two named beneficiaries
predeceased him, the will would lapse, and he would die intestate. We affirm.
 [¶2] The trial court found, or the record supports, the following facts. In
1997, the decedent executed a two-page will, which provides in relevant part:

SECOND: I give, devise and bequeath all the rest, residue and
remainder of my estate, real, personal and mixed, wherever found
and however situate, including property over which I have the
power of appointment or disposition, to my father . . . . If I am not
survived by my father . . . , I give, devise and bequeath all of said
rest, residue and remainder of my estate to [my uncle].

THIRD: I have, except as otherwise provided in this Will,
intentionally and with full knowledge, omitted to provide for my
heirs who may be living at the time of my death, including any
person who may become my heir or heirs by reason of marriage or
otherwise after the date of the execution of this Will.

¶3 Following execution of the will and prior to the decedent’s death, the
decedent’s uncle and the decedent’s father both died. At the time of the
decedent’s death, three of the uncle’s children were alive, and one of the
father’s children was alive. The father’s living child is the decedent’s sister and
the respondent in this action.

¶4 In 2022, the petitioner, Francis E. Lord, filed a petition for estate
administration in the trial court. The petition listed the uncle’s children as the
children of a deceased person who was not required to survive the decedent in
order to inherit. The respondent was listed in the petition as a sibling of the
decedent who was not named as a beneficiary in the will. The trial court
granted the petition and appointed the petitioner as executor of the decedent’s
estate.

¶5 The respondent objected and filed a motion to set aside the petition
because it did not name her as a person to inherit under the will. She argued
that the estate should pass to her pursuant to RSA 551:12, the anti-lapse
statute, because the father predeceased the decedent and she is the sole
surviving lineal descendant of the father. See RSA 551:12 (2019) (“The heirs in
the descending line of a legatee or devisee, deceased before the testator, shall
take the estate bequeathed or devised, in the same manner the legatee or
devisee would have taken it if he had survived.”); cf. Merrow v. Merrow, 105
N.H. 103, 106 (1963) (explaining that “lineal descendants of the deceased . . .
include children”). Alternatively, she argued that, because the father and the
uncle predeceased the decedent, the estate should pass through intestacy to
her as the sole heir.

¶6 The trial court denied the respondent’s objection and motion, ruling
that the bequest to the decedent’s father lapsed because the will required him
to survive the decedent in order to inherit from the will. In contrast, the trial

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court determined that the bequest to the uncle did not lapse because the will
did not require him to survive the decedent to inherit and, therefore, the anti-
lapse statute applies to the bequest to the uncle. Applying the statute, the
court ruled that the bequest to the uncle passes to the uncle’s children as his
lineal descendants. The respondent unsuccessfully moved for reconsideration.

¶7 The respondent then filed a motion to determine heirs. She argued
that unless the will specifically provided otherwise, the decedent intended to
omit his heirs from the will. Accordingly, the respondent asserted that, in
order to prevent omitted heirs from inheriting under the will, the trial court was
required to determine the identity of the decedent’s heirs. The trial court
denied the motion. This appeal followed.

¶8 Our standard of review of a circuit court probate division decision is
determined by statute: “The findings of fact of the judge of probate are final
unless they are so plainly erroneous that such findings could not be reasonably
made.” RSA 567-A:4 (2019). Consequently, we will not disturb the probate
division’s decree unless it is unsupported by the evidence or plainly erroneous
as a matter of law. In re Estate of Couture, 166 N.H. 101, 105 (2014). We
review the trial court’s interpretation of a statute de novo. DeLucca v.
DeLucca, 152 N.H. 100, 103 (2005).

¶9 The primary issue on appeal is whether the trial court erred when it
applied the anti-lapse statute to the decedent’s bequest to the uncle and
concluded that, pursuant to the statute, the uncle’s children are the
beneficiaries of the will. The respondent argues that the trial court erred
because its ruling contravenes the intent of the decedent as expressed in the
will. She asserts that the decedent intended that, in the event that his father
and his uncle predeceased him, the anti-lapse statute should not apply, the
will should lapse, and the decedent should die intestate. We disagree.

¶10 It is well settled that the testator’s intent is the sovereign guide in
the interpretation of a will, and, this intent being ascertained, the court must
enforce it unless it is illegal or impossible to do so. King v. Onthank, 152 N.H.
16, 18 (2005). “What we seek is the intention of the testator as shown by the
language of the whole will in the light of all the surrounding circumstances
. . . .” Dennett v. Osgood, 108 N.H. 156, 157 (1967).

¶11 Here, the language of the will does not express the decedent’s
intention that, under these circumstances, the will lapse and the decedent die
intestate. First, the execution of a will creates a presumption that the decedent
intended to die testate. See In re Frolich Estate, 112 N.H. 320, 325 (1972)
(explaining that the “execution of a will indicates that the testator intended to
die testate” and creates a “presumption that a testator intended his entire
estate to pass under his will”). Second, the residuary clause disposing of the
remainder of the decedent’s estate “strengthens the presumption” against a

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purpose of intestacy by the decedent. Id. Therefore, the existence of the will
and its language create a presumption against a purpose of intestacy. See id.

¶12 Nor does the will’s language show that the decedent intended to
render the anti-lapse statute inapplicable to the will; rather, it shows that the
decedent knew how to preclude application of the anti-lapse statute, and
selectively did so. By requiring his father to survive him to inherit, the
decedent expressed an intent that the anti-lapse statute not apply to the
bequest to his father. See Franklin Nat. Bank v. Gerould, 90 N.H. 397, 398
(1939) (per curiam) (explaining that survivorship requirements “prevent the
applicability of the [anti-lapse] statute”). In contrast, there is no survivorship
requirement placed upon the bequest to the uncle, nor does any other
provision in the will evidence an intent for the anti-lapse statute to be
inapplicable to the uncle. This difference in language shows that the decedent
intended that the anti-lapse statute would not apply to the bequest to his
father, but it would apply to the bequest to his uncle. See id.

¶13 The respondent argues that the will’s intentional omission clause
reflects a different intent. The intentional omission clause states that, “except
as otherwise provided in [the] Will, [the decedent] intentionally and with full
knowledge, omitted to provide for [his] heirs who may be living at the time of
[his] death.” The respondent argues that, because the uncle’s children are the
decedent’s heirs, allowing them to inherit under the will is contrary to the
decedent’s intent to omit his heirs as expressed in the clause. We disagree.

¶14 The clause states that the decedent intends to omit current and
potential heirs “except as otherwise provided in this Will.” The will provides for
the father and the uncle by granting them residuary bequests. In addition, the
will provides for the uncle’s children because, as explained above, the will
includes no survivorship requirement on the bequest to the uncle and the anti-
lapse statute applies to that bequest. As a result, the will’s language expresses
an intent that, under these circumstances, the bequest to the uncle will pass to
the uncle’s surviving children “as if [they] had been named in the will.” Estate
of Cloutier, 116 N.H. 326, 328 (1976) (quotation omitted). Accordingly,
allowing the uncle’s children to inherit from the will is consistent with the
language of the intentional omission clause because that inheritance is
“provided in [the] Will.”

¶15 The respondent argues that this result renders the intentional
omission clause ineffective. To the contrary, this construction effectuates the
clause’s purpose. The purpose of the clause is to omit the decedent’s heirs not
provided for in the will, and this construction has the effect of excluding all
heirs other than the father, the uncle, and the uncle’s lineal descendants. For
example, this construction effectuates the decedent’s intent to prevent his
sister — the respondent — and his other heirs-at-law from inheriting the

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estate, as expressed by the will’s language requiring the father to survive the
decedent to inherit his bequest and by the intentional omission clause.

¶16 Accordingly, we agree with the trial court that the bequest to the
uncle did not lapse. Pursuant to the anti-lapse statute, the heirs in the
descending line of the uncle inherit the bequest in the same manner he would
have if he had survived. See RSA 551:12. Here, because the uncle would have
inherited the estate via the residuary clause, the uncle’s living children — as
his lineal descendants — inherit the estate via the residuary clause, and the
bequest does not lapse. See id.; Estate of Cloutier, 116 N.H. at 328.

¶17 Finally, the respondent argues that the trial court erred when it
denied her motion to determine heirs. The respondent argues that it is
necessary to determine heirs because, if the uncle’s children are the decedent’s
heirs, then they are omitted from the will by the intentional omission clause.
However, as explained above, the intentional omission clause omits the
respondent’s heirs “except as otherwise provided” for in the will, and the will
provides for the uncle’s children by application of the anti-lapse statute.
Therefore, the respondent’s motion rested on a flawed premise, and the trial
court properly denied it.

¶18 For the foregoing reasons, we conclude that the trial court did not
err when it applied RSA 551:12 to the residual bequest to the uncle.
Accordingly, we affirm.

Affirmed.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.

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