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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough County Probate Court
No. 2002-117
IN RE ESTATE OF J. DOUGLAS KING
Argued: January 14, 2003
Opinion Issued: March 6, 2003
McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Charles A. DeGrandpre & a. on the brief, and George T. Campbell, III orally), for the petitioner.
Rath, Young and Pignatelli, P. A., of Concord (Andrew W. Serell and Rose Marie Joly on the brief, and Mr. Serell orally), for respondents Rebecca King Felmet and Rachel King.
Robert Howard Law Office, of Henniker (Robert R. Howard, III on the brief) for respondent Jason King.
DUGGAN, J. The petitioner, the Estate of J. Douglas King, appeals an order of the Hillsborough County Probate Court (Cassavechia, J.) declaring the decedent to be intestate because the petitioner could not produce an original will. The petitioner argues that the probate court erred by relying upon the presumption of revocation even though the estate produced an original codicil to the original will. Alternately, the petitioner argues that it presented sufficient evidence in the probate court to overcome the presumption of revocation, and that the court relied upon inadmissible hearsay in finding otherwise. We reverse and remand.
The decedent, J. Douglas King, executed a will in 1994 that left his estate to his second wife of fifteen years, Laurel King, with whom he had two minor children. Douglas also had three adult children (Rebecca King Felmet, Rachel King and Jason King) from a previous marriage. The will conditioned bequests to these three children upon Laurel predeceasing Douglas. On July 24, 1997, after presenting a copy of the will to Ellen Peterson, a Massachusetts attorney, Douglas executed a codicil to the will. The codicil made no substantive changes to the will, but merely altered provisions for appointing the executor and trustees, and otherwise reconfirmed the 1994 will. Peterson retained the original codicil and the copy of the will.
Douglas died suddenly and unexpectedly in a motorcycle accident on September 10, 2000. The original 1994 will, last known to be in Douglas’ possession, was never found. Instead, Laurel obtained the 1997 original codicil and copy of the will from Peterson, and filed them with the probate court. Rebecca, Rachel, and Jason contested these documents, arguing that a presumption of revocation applied to the missing will. The probate court agreed that the presumption must be invoked, and conducted an evidentiary hearing to determine the likely fate of the will. See In re Estate of Fuller, 119 N.H. 132, 135 (1979).
Much of the testimony at the hearing concerned Douglas’ relationship with his family. Evidence established that Douglas’ marriage with Laurel, although generally loving, featured a series of arguments, separations and reunions. Many of these incidents concerned Douglas’ problems with alcohol and prescription drugs. On one occasion in 1989, Laurel filed for divorce, but withdrew the filing after Douglas promised to change. In 1993 or 1994, she consulted an attorney about a separation. Douglas and Laurel had another argument on September 2, 2000, shortly before Douglas’ death, after which Douglas wrote a missive to himself lamenting that his "life has come to an end." Laurel, however, testified that they reconciled, and had planned to renew their wedding vows in October of 2000.
The witnesses agreed that throughout his second marriage, Douglas was close to his children from the first marriage with the exception of his oldest son, Jason, who had a substance abuse problem and was estranged from his father until 2000, when they reconciled. Douglas lavished gifts on these children, including direct financial assistance, a house, and several cars. Douglas assisted his children in this manner both before and after the execution of the 1994 will. Laurel testified that Douglas was generous to his adult children because he only intended to provide for them while he was alive.
Other testimony concerned Douglas’ financial plans. Douglas, who was not always a wealthy man, realized a major accession to his wealth between 1994 and 1997, at which time the joint estates of Douglas and Laurel were valued at approximately eight million dollars. Douglas purchased a home in Hillsborough, which he intended to be a communal family estate for all of his children. He consulted with three different attorneys, from 1996 to 1999, about the possibility of revising the testamentary plan in his will to minimize tax liability, although no evidence of any new will exists save the 1997 codicil. In 1999 Douglas and Laurel undertook to divide their marital assets, although they subsequently placed their assets back into a joint account.
The petitioner produced three witnesses who testified about statements Douglas made regarding the status of the 1994 will. First, Douglas Hatfield, Douglas’ attorney and neighbor in Hillsborough, testified that Douglas King had told him in September of 1999 that he "had an old will that he had amended that left everything to Laurel." Hatfield understood Douglas to mean that this will was still effective at that time. Second, Donna Stafford, a friend of Douglas and Laurel, testified that Douglas told her in June of 2000 that "he had prepared his will, that he had left everything to Laurel, everything was in her name, and he knew that [Laurel] would take care of all of his children." Stafford testified that Douglas told her one week before his death that "your husband will take care of [your stepson], just like Laurel will take care of my five children." Finally, John Zelonis, Douglas’ friend and employee, testified that on August 31, 2000, Zelonis asked Douglas, "What would happen if you died tomorrow?" Douglas replied that "he had his affairs in order for years." Zelonis also testified that Douglas and Laurel, prior to airplane trips, would leave him a list of names to call in the event "anything happens to both of us." This list included Ellen Peterson, the attorney who kept the original codicil and copy of the 1994 will.
Finally, over the petitioner’s hearsay objection, the court admitted the testimony of Rebecca, Rachel and Jason regarding a statement made to them by Andrew Reyes, Douglas’ longtime accountant, several days after Douglas’ death. According to all three, Reyes told them that Douglas had said he had made specific provisions for his children in the event of his death. Reyes did not subsequently contact the children about these "specific provisions." At the time of the hearing, Reyes was missing, and being sought by law enforcement agencies in connection with his suspected embezzlement of over a million dollars from Douglas’ estate.
On December 27, 2001, the probate court issued a written order concluding:
[I]t is as probable as not that Doug[las] destroyed the 1994 will (if he, in fact, did not prepare another which has not been located) knowing that intestacy would promote a degree of equality among his children, and between his children and his wife, that the 1994 will did not. . . . Laurel’s proof is devoid of credible evidence establishing, directly or through reasoned inference, what became of the 1994 original will execution, or to otherwise account for its non-production.
On appeal, the petitioner first argues that the court erred by holding an evidentiary hearing to determine the fate of the missing 1994 original will because the codicil was per se sufficient to prove the will. Second, it argues that it overcame the presumption of revocation at the evidentiary hearing. A third issue regarding the appointment of the administratrix of the estate is raised in the notice of appeal but not briefed, and therefore we deem it waived. See Herman v. Monadnock PR-24 Training Council, 147 N.H. 754, 758 (2002). We consider the preserved arguments in turn.
The petitioner first argues that the 1997 codicil is sufficient to prove the will and to obviate any inquiry into the will’s revocation. The petitioner relies upon the principle that a codicil, when executed with the formalities of a will, republishes the original will as of the date of the codicil’s execution. See Foster v. Farrand, 81 N.H. 448, 451 (1925). Thus, under New Hampshire law, a will is proved by proving a subsequent codicil. See Prob. Ct. R. 97. For example, if a flaw exists in the execution of a will, proof of a subsequent and properly executed codicil to that will validates the will’s provisions. Cf. Tyson v. Henry, 514 S.E.2d 564, 566 (N.C. 1999).
The petitioner interprets these principles to mean that the codicil becomes a separate testamentary instrument. Under this view, the original will, subsequent to the execution of a codicil republishing that will, is no longer relevant, as the codicil replaces the will. Therefore, the destruction of the original will has no legal effect unless accompanied by the destruction of the codicil, because otherwise the codicil instantly revives the revoked will’s terms by its reaffirmation and republication of the will. Under this logic, the petitioner submits that the introduction of the original codicil is sufficient to prove the terms of the 1994 will, regardless of whether Douglas destroyed the original document.
The petitioner cites only one case, In re Estate of Smith, 378 N.W.2d 555, 557 (Mich. Ct. App. 1985), that adopts its reasoning. Smith based its holding upon Michigan law defining a codicil as a "separate and independent testamentary instrument." Id. at 557. The petitioner argues that RSA 21:22 (2000), which states, "[t]he word ‘will’ shall include codicils," compels us to reach the same result.
RSA 21:22, however, is merely a rule of statutory construction that does not apply to this case. See RSA 21:1 (2000). New Hampshire, along with the majority of other jurisdictions, has adopted the alternate view that the codicil and will together function as a single testamentary instrument. See Loveren v. Eaton, 80 N.H. 62, 63 (1921); Jackson v. Thompson, 610 S.W.2d 519, 523 (Tex. Civ. App. 1980). In determining whether the revocation of the will revokes the codicil, the general rule in these jurisdictions is:
[W]here a codicil is of such a character that it may stand independently of the will, the revocation of the will does not affect the codicil. If, however, a codicil is not so complete a testamentary instrument as to stand alone, the revocation of the will to which it is appurtenant automatically revokes it.
79 Am. Jur. 2d Wills