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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham County Probate Court
No. 97-059
MARY P. HOPWOOD
v.
ROBERT J. PICKETT & a.
August 23, 2000
Chubrich & Harrigan, P.A., of Portsmouth (Michael E. Chubrich on the brief and orally), for the plaintiff.
James E. Ritzo, P.A., of Portsmouth (James E. Ritzo on the brief and orally), for defendant Robert J. Pickett.
McLane, Graf, Raulerson & Middleton, P.A., Trustee, filed no brief.
HORTON, J. The plaintiff, Mary P. Hopwood, appeals the Rockingham County Probate Court's (O'Neill, J.) decision denying her petition for a constructive trust. We vacate and remand.
This case concerns the distribution of the intestate estate of David Pickett, who died on February 3, 1993, from the infliction of an incision wound to his neck by one or more unknown persons. Under the intestate distribution statute, David Pickett's brother, defendant Robert J. Pickett, and his sister, the plaintiff, are heirs at law to his estate. See RSA 561:1, II(c) (1997) (amended 1998).
In 1994, the plaintiff filed a petition in the Rockingham County Probate Court to impose a constructive trust on Robert Pickett's inheritance. The plaintiff alleged that Robert Pickett murdered David Pickett over a property dispute, and she sought distribution of Robert Pickett's inheritance to the remaining heirs at law. The court concluded that the plaintiff failed to prove by clear and convincing evidence that Robert Pickett intentionally killed David Pickett and denied the petition for a constructive trust.
The plaintiff first argues that the probate court erred in applying the clear and convincing evidence standard of proof to her constructive trust claim. The plaintiff's argument presents a question of law, which we review de novo. See Sullivan Cnty. Reg. Refuse Dist. v. Town of Acworth, 141 N.H. 479, 482, 686 A.2d 755, 757 (1996).
In Kelley v. State, 105 N.H. 240, 242-43, 196 A.2d 68, 70 (1963), we held that a constructive trust is the appropriate remedial device to prevent a slayer from enjoying unjust enrichment by inheriting the victim's property. The slayer is unjustly enriched in the sense that he or she hastens acquisition of estate property, thereby avoiding the risk of dying first or being disinherited. 5 A. Scott & W. Fratcher, The Law of Trusts