371 A.2d 1176
No. 7627Supreme Court of New Hampshire Probate Court, Hillsborough County
Decided March 31, 1977
1. Courts — Probate Courts — Jurisdiction It was not for the probate court to decide whether common law widow had an equitable title in decedent’s real estate, but rather, it was for the superior court to decide under its equity jurisdiction.
2. Executors and Administrators — Sale of Property — License Given the wide discretion vested in it, it was not improper for the probate court to grant petition for license to sell decedent’s real
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estate, other assets not being sufficient to pay debts and expenses of the estate, where no sufficient reason had been advanced by common law widow why she could not protect any interest she might have had by attachment of the real estate under a writ in aid of her bill in equity.
Peter J. Bourque, of Manchester, by brief and orally, for the estate.
Wiggin Nourie, of Manchester, and Hedley G. Pingree, Douglas R. Chamberlain, and Kenneth Bouchard (Mr. Bouchard orally) for Dessie B. Houlne.
MEMORANDUM OPINION
James M. Stavrou died on March 19, 1976, having record title to real estate located in Manchester, subject to a mortgage which has been paid from mortgage insurance on his life. His sister was appointed administratrix and petitioned for a license to sell the real estate, the other assets not being sufficient to pay debts and expenses of the estate. Dessie B. Houlne duly filed a claim as common law widow of the deceased and claimed equitable ownership of the real estate by reason of a resulting trust, and in October 1976, she filed a bill in equity in Hillsborough County Superior Court alleging a resulting trust in her favor in the real estate giving her title thereto. She claims that the granting of the license to sell the property was unlawful while her adverse claim is pending and seeks a stay pending final adjudication of her claim.
It is not for the probate court to decide whether Dessie B. Houlne has an equitable title but is rather a matter for the superior court under its equity jurisdiction. In re Bunker Estate, 110 N.H. 285, 266 A.2d 114
(1970). Given the wide discretion vested in it, we cannot say that it was improper for the probate court to grant the petition for a license to sell. See Badger v. Story, 16 N.H. 168 (1844). No sufficient reason has been advanced why Dessie B. Houlne cannot protect any interest she may have by attachment of the property under a writ in aid of her bill in equity. RSA 498:16-20.
Appeal dismissed.
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