In re Mullin

169 N.H. 632

155 A.3d 555

IN RE ESTATE OF Kathleen MULLIN

No. 2016–0177

Supreme Court of New Hampshire.

Argued: November 17, 2016

Opinion Issued: February 15, 2017

Barradale, O'Connell, Newkirk & Dwyer, P.A., of Bedford (Pamela J. Newkirk and Laura T. Tetrault on the brief, and Ms. Newkirk orally), for the appellant.

McLane Middleton, Professional Association, of Manchester (Ralph F. Holmes and Henry R. Klementowicz on the brief, and Mr. Klementowicz orally), for the appellee.

J. Stanley Mullin, Jr., self-represented party, filed no brief.

Michael Mullin, self-represented party, filed no brief.

LYNN, J.

The appellant, Patricia M. Jakle, administrator of the estate of Kathleen Mullin, appeals an order of the Circuit Court (Quigley, J.) denying her motion for declaratory judgment. We affirm.

I

The pertinent facts are as follows. The decedent, Kathleen Mullin, a resident of Hancock, New Hampshire, died intestate on November 26, 2014. Her heirs at law are her three siblings: Michael Mullin, J. Stanley Mullin, Jr., and the appellant. All of the heirs at law are California residents, as is the appellee Laura Bushley. From 2008 until her death, the decedent lived in Hancock and owned real property there valued at $235,000. She also owned real property in California, where she had lived for many years prior to 2008, as well as personal property valued at $2,531,164 at the time of her death.

Although the decedent did not have a will, in 2012, while in California, she executed a trust document (Trust) that had been drafted by a California attorney. Schedule A of the Trust lists as Trust property some of the decedent's personal property and all of her real property. She also executed an "Assignment of Property to Trust" (Assignment) that purported to transfer to the Trust all of her real property and some of her personal property.¹ The Trust contains the following choice of law provision:

The laws of the State of California in force from time to time shall govern the validity, construction, and administration of this Trust, except that all matters relating to real property shall be governed by the laws of the situs of that real property. This article shall apply regardless of any change of residence of the Trustee or any beneficiary, or the appointment or substitution of a Trustee residing or doing business in another state.

Prior to her death, the decedent was the beneficiary of the Trust. The terms of the Trust provide that, upon the decedent's death, approximately 88 percent of the Trust property is to be distributed to charitable organizations.

Laura Bushley, the appellee, is trustee of the Trust. After the decedent's death, the appellee became administrator of the Trust. That same month, the appellee filed in the circuit court a petition for estate administration, which was subsequently granted. In May 2015, the appellee resigned as estate administrator and the appellant was appointed as the successor administrator.

In July, the appellant filed an Inventory of Fiduciary listing the decedent's estate as consisting of approximately $2.5 million worth of real estate and personal property. In August, the appellee filed an objection to the Inventory, claiming that it listed property that was owned by the Trust.

In October, the appellee commenced an action in the California Superior Court. Titled a "Petition for Order Transferring Title to Real and Personal Property to Living Trust" (Petition), it referenced the ongoing probate proceedings in New Hampshire, but asserted that, under California law, the Assignment was sufficient to transfer the decedent's property to the Trust. The appellee also asserted in the petition that the California court "has authority and general subject matter jurisdiction over the decedent's property" and "the power to resolve claims over title" to the property.

Shortly thereafter, the appellant filed a motion for declaratory judgment in the circuit court to determine title to the decedent's property. In the motion, the appellant requested that the court declare: (1) that it had "exclusive jurisdiction to determine all claims to the title of property listed on the Inventory"; (2) that the "situs of the property listed on the Inventory is New Hampshire"; and (3) that both "legal and equitable title to the property ... was held by Kathleen Mullin at the time of her death." The appellee objected to the motion, arguing, among other things, that a declaratory judgment could be rendered only after the filing of an equity petition, the completion of discovery, and the presentation of evidence. The appellee also argued that the validity of the decedent's transfers to the Trust should be determined "by a court in California, under California law," with the exception of the transfer of the New Hampshire real estate, which the appellee acknowledged could be decided by the California court under New Hampshire law.

The circuit court denied the appellant's motion, ruling: (1) that the court was "unable to make a ruling on the requests of the [appellant] regarding the legal and equitable title to the property or to declare that the situs of the property ... is New Hampshire without appropriate testimony and evidence"; (2) that jurisdiction over the Trust was "properly before" the California court, and that California law must apply except with respect to the New Hampshire real estate; and (3) that the California court was "a more convenient forum" to hear the matter because "[e]vidence and witnesses would more easily be available" there, the decedent "lived in California for many years and utilized services of a California attorney and California financial advisor," the Trust "was drafted in California," and the "trustee and all three heirs-at-law, including the [appellant], are residents of California." This appeal followed.

II

On appeal, the appellant argues that the circuit court erred by ruling that the courts of New Hampshire do not have exclusive jurisdiction to consider claims regarding the property of the decedent, who was domiciled in New Hampshire at the time of her death. Next, the appellant challenges the circuit court's ruling that the choice of law provision in the Trust dictates that California law governs claims to the decedent's New Hampshire personal property. Finally, the appellant contends that the court erroneously concluded that California is a more convenient forum for adjudicating the claims over the decedent's property. We address these arguments in turn.

A

The appellant first asserts that the circuit court erred by "refusing to declare that [it] has exclusive jurisdiction to decide the underlying dispute"; namely, the validity of the purported inter vivos transfer of the decedent's property to the Trust. The appellant argues that the circuit court had "exclusive" in rem jurisdiction over the decedent's New Hampshire assets because those assets were either located in the state, or were the personal property of a deceased New Hampshire resident. The appellant argues that, by ruling that it did not have exclusive jurisdiction over the decedent's assets, the court acted contrary to over 150 years of precedent and New Hampshire's strong public policy in favor of the expeditious settlement of the estates of its residents.

On issues related to the circuit court's jurisdiction, we apply a de novo standard of review. See Attorney General, Dir. of Charitable Trusts v. Loreto Publ'ns, 169 N.H. 68, 71, 142 A.3d 706 (2016) (noting that we review de novo whether a court has subject matter jurisdiction); Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 453, 130 A.3d 1219 (2015) (reviewing de novo the question of whether a court had jurisdiction to consider a university's appeal of an arbitration decision).

We agree with the appellant's contention that jurisdiction in an in rem proceeding is ordinarily established in the state where the property is located, or, in the case of personal property, the state where the decedent was domiciled. See In re Estate of Rubert, 139 N.H. 273, 276, 651 A.2d 937 (1994). However, the appellant goes further, arguing that the United States Supreme Court's holdings in Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946), and Kline v. Burke Constr. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922), dictate that no other court can assume in rem jurisdiction over the same res. Those cases, however, merely elucidated the appropriate division of state and federal jurisdiction under the federal Judiciary Act of 1789 with regard to probate matters. Markham, 326 U.S. at 494, 66 S.Ct. 296 ; Kline, 260 U.S. at 229, 43 S.Ct. 79. Specifically, the Court stated in Kline that:

[W]here a federal court has first acquired jurisdiction of the subject-matter of a cause, it may enjoin the parties from proceeding in a state court of concurrent jurisdiction where the effect of the action would be to defeat or impair the jurisdiction of the federal court. Where the action is in rem the effect is to draw to the federal court the possession or control, actual or potential, of the res, and the exercise by the state court of jurisdiction over the same res necessarily impairs, and may defeat, the jurisdiction of the federal court already attached. The converse of the rule is equally true, that where the jurisdiction of the state court has first attached, the federal court is precluded from exercising its jurisdiction over the same res to defeat or impair the state court's jurisdiction.

Kline, 260 U.S. at 229, 43 S.Ct. 79.

Although the appellant points to a ruling by the Nevada Supreme Court, interpreting Nevada law, that extended Kline's first-to-the-courthouse rationale to a situation in which multiple states possess concurrent jurisdiction over a probate matter, see Bergeron v. Loeb, 100 Nev. 54, 675 P.2d 397, 400–01 (1984), we decline to apply such reasoning in this case. That New Hampshire possesses jurisdiction to probate the decedent's estate does not mean that jurisdiction is...