In re Estate of Gault

Memorandum Opinion This is a petition for instructions filed following a proposed decree of distribution in the estate of Elizabeth B. Gault and certified to this court under the provisions of RSA 547:30 by the Probate Court (Copadis, J.) The decedent Elizabeth B. Gault died intestate survived by two grandnieces and two grandnephews (descendants of the only known sibling of the decedent who left issue) and one first cousin. The report of the guardian ad litem indicates that a half-brother [526] of the decedent, born in 1859, was last heard of in Fort Worth, Texas, prior to 1901. Advertisements seeking information concerning the brother or any heirs of the brother in New Hampshire and Fort Worth newspapers were unproductive, as was a search undertaken by a Boston genealogical service. The questions transferred ask us to determine whether the one half of the estate which would have been payable to the brother had he survived should be paid to the State treasurer under the provision of RSA 561:10; or the entire estate distributed in equal shares to the grandnephews and grandnieces; or whether the cousin shares equally with the grandnephews and grandnieces? The probate file in this case indicates that after allowance of the final account, there remains in excess of $100,000 for distribution to the heirs. Counsel have entered appearances in the probate court for the grandnephews and grandnieces and separate counsel appeared there for the first cousin. From a cursory review of the questions transferred, it appears they may involve substantial questions of law. We are not disposed to determine the law in this case involving adversary interests in the absence of any briefs. See McNamara v. MacCormac, 113 N.H. 540, 309 A.2d 916 (1973); Chasan v. Chasan, 115 N.H. 613, 347 A.2d 178 (1975); Connecticut Valley Constr. Co. v. State, 115 N.H. 247, 339 A.2d 11 (1975). See also In re Peterson Estate, 104 N.H. 508, 190 A.2d 418 (1963). The petition in this case will be dismissed November 1, 1976, unless briefs have been filed before that date. Dismissed nisi. Grimes, J., did not sit.