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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 2018-0136

SAMUEL ROGERS

v.

JOSEPH ROGERS

Argued: November 28, 2018

Opinion Issued: February 1, 2019

Greenblott & O’Rourke, PLLC, of Contoocook (Seth W. Greenblott on the 

brief and orally), for the plaintiff.

Bielagus Law Offices PLLC, of Milford (Jason A. Bielagus on the brief and 

orally), for the defendant.

DONOVAN, J. The plaintiff, Samuel Rogers, appeals an order of the 

Superior Court (Nadeau, C.J.) dismissing his complaint against his son, Joseph 

Rogers, upon finding that the circuit court, probate division (probate court),

1

and not the superior court, maintains exclusive subject matter jurisdiction over 

his cause of action. We reverse and remand.

 

1 Although the legislature established the circuit court in 2011 by merging the former probate and 

district courts with the former judicial branch family division, this opinion will refer to the circuit 

court, probate division as the “probate court” to avoid any confusion with our prior decisions 

concerning probate jurisdiction.
2

I. Factual History

The trial court found or the record otherwise supports the following facts. 

The plaintiff’s wife died in March 2012 and the parties’ dispute arose after the 

disposition of her estate. The decedent’s will named the defendant as the 

executor of the estate, which was comprised, in pertinent part, of two 

properties in Hollis — the plaintiff’s marital home and the decedent’s 50% 

ownership interest in 94.3 acres of undeveloped land on Rocky Point Road 

(Rocky Point).

2 In her will, the decedent devised one-third of the estate to the 

plaintiff and devised the remaining two-thirds of the estate to the defendant.

The probate court appointed the defendant as the executor of the estate 

in May 2012 and, pursuant to his duties as the executor, he contracted for 

appraisals of both properties. The defendant’s appraiser valued the decedent’s 

50% interest in Rocky Point at $550,000 and the marital home at $273,000. 

Based upon these valuations, the defendant suggested to the plaintiff that they 

settle the estate by the plaintiff taking title to the marital home, in his name 

alone, in exchange for the defendant assuming the estate’s entire interest in 

Rocky Point. The plaintiff accepted this offer in light of his apparent 

impression that his one-third interest in the estate’s ownership of Rocky Point 

closely approximated the defendant’s two-thirds interest in the marital home.3 

This exchange of property interests was accomplished by way of an exchange of 

fiduciary deeds in September 2012.

At some point in 2015, the plaintiff learned that the Town of Hollis had 

either offered to purchase or agreed to purchase Rocky Point for $2,500,000, 

but, for reasons not established by the record, the sale was never 

consummated. Thereafter, the plaintiff discovered that his son had 

commissioned an appraisal of Rocky Point in 2005 which estimated that the 

value of the property, at that time, was $1,950,000. These valuations 

suggested that following the parties’ exchange of property interests, the

defendant’s interest in Rocky Point would have been worth approximately 

$975,000.

II. Procedural History

Armed with these discoveries, the plaintiff sued the defendant in the 

superior court in September 2016 alleging claims of breach of fiduciary duty, 

fraud, negligence, and unjust enrichment. The defendant moved to dismiss the 

suit in October 2016 arguing, inter alia, that the plaintiff’s claims were barred 

 

2 The remaining ownership interests in Rocky Point are believed to be held by another trust 

created by another relative of the decedent.

3 The defendant’s 2012 appraisals suggested that the plaintiff’s one-third executory devise to 

Rocky Point would have been valued at approximately $183,000 and the defendant’s two-third 

executory devise to the marital home would have been valued at approximately $182,000.
3

by the time limitations set forth in RSA 556:3 (2007), because all claims 

against the estate needed to be filed within six months of the probate court’s 

issuance of the certificate of appointment in May 2012, and barred by the 

doctrines of res judicata and collateral estoppel, because he could have, but

did not, raise these claims in the original probate matter. The Trial Court 

(Ignatius, J.) denied the motion upon finding that: (1) the defendant 

mischaracterized the nature of the plaintiff’s claims as against the estate rather 

than the defendant, personally; and (2) the res judicata doctrine did not apply 

because the plaintiff could not have previously litigated his claims in the initial 

probate matter since he did not become aware of the defendant’s actionable 

conduct until 2015, three years after the probating of the estate.

In January 2017, the defendant filed another motion seeking to dismiss 

the plaintiff’s complaint, or in the alternative, to transfer the matter to the 

probate court. In his pleading, the defendant argued that “[a]ll of [the]

[p]laintiff’s claims are related to the [e]state, and the administration of the 

[e]state, and the values of estate assets, and the disbursement of the estate 

assets” and, therefore, the probate court has exclusive jurisdiction over the 

parties’ dispute pursuant to RSA 547:3 (Supp. 2018). In March 2017, the trial 

court denied the defendant’s motion, citing its previous ruling that the 

defendant had mischaracterized the nature of the plaintiff’s claims.

Undeterred, the defendant moved to consolidate the plaintiff’s action with 

a petition he filed in the probate court against the plaintiff seeking to enforce 

his mother’s will. In his motion, he again argued that the probate court 

maintained jurisdiction over the parties’ disputes.4 The plaintiff objected, 

arguing that: (1) the court had already determined this issue; and (2) the 

superior court was the proper forum to determine the plaintiff’s tort claims and 

the probate court was the proper forum to decide the defendant’s enforcement 

action. In December 2017, the trial court denied that motion.

The defendant moved to reconsider, arguing that the court had not yet 

decided the issue of jurisdiction under RSA 547:3. On this occasion, the Trial 

Court (Nadeau, C.J.) granted the motion and dismissed the plaintiff’s superior 

court claims. The trial court found that the plaintiff’s action “clearly relates to 

an estate and will” because he alleges that the defendant purposely 

misrepresented the value of Rocky Point “during the administration of [the 

decedent’s] estate.” (Emphasis in original.) The trial court further found that 

the probate court has exclusive jurisdiction over the dispute because the 

parties reached their agreement during the administration of the estate and the 

 

4 The record suggests that, in response to the plaintiff’s superior court complaint, the defendant 

filed a motion in the probate court seeking to reopen the original estate and to enforce a nocontest clause set forth in his mother’s will. The defendant withdrew his probate action once the 

superior court dismissed the plaintiff’s claims in the matter now before us. The probate court 

then closed the case.
4

plaintiff is suing the defendant in his capacity as the administrator of the 

estate. The plaintiff moved to reconsider, but the trial court denied that motion 

without comment. This appeal followed.

III. Appellate Arguments

On appeal, the plaintiff maintains that the superior court erred, as a 

matter of law, in finding that the probate court has exclusive jurisdiction over 

his claims, because he is not seeking a re-administration of the estate or 

challenging the allocation of the property distribution. Instead, he argues that 

his complaint asserts tort claims for which he seeks damages based upon his 

son’s violations of his common law obligations. The plaintiff further argues 

that, given the absence of a change in circumstances and the substantial 

litigation that has occurred in this case, the superior court erred in reversing 

its own ruling.

The defendant counters that his father cannot meet his burden of 

demonstrating reversible error by the superior court because: (1) RSA 547:3 

confers exclusive jurisdiction to the probate court over the plaintiff’s action 

given that all of the plaintiff’s claims concern the administration, settlement 

and distribution of estate assets; (2) whatever rights the plaintiff has to the 

estate’s Rocky Point interests arise from his capacity as a beneficiary of the 

decedent’s will; and (3) granting the plaintiff’s requested relief would lead to 

absurd results by which any beneficiary could challenge the administration of 

an estate years after the final settlement, contrary to New Hampshire law.

IV. Analysis

A. Subject Matter Jurisdiction of the Probate Court and 

Superior Court

The parties’ competing jurisdictional claims require that we analyze the 

subject matter jurisdiction of both the superior and probate courts to 

determine whether the dispute before us falls exclusively within the probate 

court’s jurisdiction. A court lacks the authority to hear or determine a case 

concerning subject matters over which it has no jurisdiction. Daine v. Daine, 

157 N.H. 426, 428 (2008). The probate court is not a court of general 

jurisdiction; rather, “[i]ts powers are limited to those conferred upon it by 

statute.” Petition of Cigna Healthcare, 146 N.H. 683, 688 (2001) (quotations 

omitted). By contrast, the superior court is a court of general jurisdiction and 

has authority to entertain actions in equity, when there is no adequate remedy 

at law, State v. Simone, 151 N.H. 328, 331 (2004), as well as “civil actions and 

pleas, real, personal, and mixed, according to the course of the common law.” 

RSA 491:7 (Supp. 2018).
5

Determining the jurisdiction of the probate court is a matter of statutory 

interpretation which presents a question of law subject to our de novo review. 

In re Athena D., 162 N.H. 232, 234-35 (2011). In matters of statutory 

interpretation, we are the final arbiter of the intent of the legislature as 

expressed by the words of the statute considered as a whole. Cigna, 146 N.H. 

at 688. We first look to the statutory language, and whenever possible 

construe that language according to its plain and ordinary meaning. Id. We 

interpret legislative intent from the statute as written and will not consider 

what the legislature might have said or add language that the legislature did 

not see fit to include. In the Matter of McAndrews & Woodson, 171 N.H. ___, 

___ (decided August 10, 2018) (slip op. at 5). When the language of a statute is 

unambiguous, we do not look beyond it for further indications of legislative 

intent. Id.

Pursuant to RSA 547:3, I, the probate court has exclusive jurisdiction, in 

relevant part, over:

(b) The granting of administration and all matters and things of 

probate jurisdiction relating to the composition, administration, 

sale, settlement, and final distribution of estates of deceased 

persons, including . . . claims against the executor or 

administrator for those services related to the prior care and 

maintenance of the decedent . . . [as well as]

(c) The interpretation and construction of wills . . . .

RSA 547:3, I(b)-(c). We have consistently construed this language as plainly 

and unambiguously limiting the exclusive jurisdiction of the probate court. 

See, e.g., In re Estate of O’Dwyer, 135 N.H. 323, 324 (1992) (superseded by 

statute as stated in In re Muller, 164 N.H. 512, 519 (2013)); Hayes v. Hayes, 48 

N.H. 219, 229 (1868); see also Cigna, 146 N.H. at 689-90. On appeal, the 

defendant does not address our previous decisions defining the limited 

jurisdiction of the probate court. Instead, he argues that the probate court has 

exclusive jurisdiction over the plaintiff’s action because all of the plaintiff’s 

claims “concern the administration, settlement, and distribution of estate 

assets.” Essentially, he maintains that because each of the plaintiff’s causes of 

action “relate” to the defendant’s administration of his mother’s estate, as 

contemplated by the language in RSA 547:3, the probate court alone has 

subject matter jurisdiction over the present cause of action. We disagree.

“‘The general policy of the law in this State has been to confine the 

contentious jurisdiction of the probate courts within narrow limits.’” Cigna, 

146 N.H. at 689 (quoting Hayes, 48 N.H. at 229). In Hayes, we interpreted a 

variation of the phraseology “all matters and things of probate jurisdiction 

relating to . . . the estate of deceased persons.” See Hayes, 48 N.H. at 223. At 

that time, we did not construe this same language as granting general 
6

jurisdiction to the probate court to determine, for example, conflicting claims to 

an interest accrued under a trust created by will, because “[i]f the [probate] 

court can do . . . this, it is quite clear that it must be in the exercise of a 

general equity jurisdiction over all trusts created by will.” Id. at 225.

When the legislature has intended to expand the scope of the probate 

court’s jurisdiction, it has done so in explicit terms. For example, in the 

absence of an explicit legislative grant of probate court jurisdiction to 

determine title to real estate, we held that the superior court was the proper 

forum for such a dispute, and the probate court lacked such jurisdiction. See

O’Dwyer, 135 N.H. at 324 (holding that former version of RSA 547:3 (Supp. 

1991) (amended 1992, 1993, 1997, 2005, 2006, 2007, 2008, 2010), conferred 

upon the probate court jurisdiction over all matters and things of probate 

jurisdiction relating to the sale, settlement, and final distribution of estates of 

deceased persons but did not grant jurisdiction to determine title to real estate 

to establish whether it was an asset of the estate). After the O’Dwyer decision,

“the legislature effectively expanded the probate court’s jurisdiction to 

encompass disputes concerning the real estate of a decedent through the 

Omnibus Justice Act of 1993,” which expressly granted the probate court 

“jurisdiction to resolve issues involving real estate of the decedent if the 

property is in the estate of the decedent.” In re Estate of Porter, 159 N.H. 212, 

214 (2009) (quotations omitted); see Laws 1992, 284:49; see also RSA 547:3-b 

(Supp. 2018) (granting probate court equity jurisdiction); RSA 547:11-b (2007) 

(granting probate court jurisdiction over declaratory judgment actions 

regarding title to real or personal property in decedent's estate); RSA 547:11-c 

(2007) (granting probate court jurisdiction over quiet title actions regarding real 

or personal property in decedent's estate).

The legislature is presumed to know the narrow construction that we 

have previously applied to statutes conferring jurisdiction on the probate court. 

Cigna, 146 N.H. at 690. If legislators intended to grant to the probate court

exclusive jurisdiction over all common law tort claims that “relate,” in any 

sense, to an estate, “‘they would not, we think, have left their intention to be 

inferred from a single doubtful expression . . . but would have conferred the 

authority in plain and explicit terms.’” Id. (quoting Hayes, 48 N.H. at 230). 

Despite the previously referenced amendments to RSA 547:3 and the 

acknowledged expansion of probate court jurisdiction, the legislature has not 

explicitly clarified the “doubtful expression” that remains within the statute or 

otherwise expanded the probate court’s exclusive jurisdiction to include 

common law claims which are, in some manner, related to an estate. Id.

Our reading of the powers granted to the probate courts under the 

current statutory scheme is supported by our canons of statutory 

interpretation. Nothing within RSA 547:3 or RSA 547:3-b (Supp. 2018), by 

which the legislature granted equity jurisdiction to the probate court, reflects a 

legislative intent to grant to the probate court exclusive jurisdiction over tort 
7

claims simply because the claims are related to or occurred during the 

administration of an estate. “We interpret legislative intent from the statute as 

written and will not consider what the legislature might have said or add words 

that the legislature did not include.” In re Muller, 164 N.H. at 519 (quotation 

omitted). We do not read the current version of RSA 547:3 to exclusively place 

jurisdiction in the probate court to determine common law torts based solely 

upon the fact that some of the alleged conduct occurred during or as a part of 

the administration of an estate. Instead, determining the proper forum for the 

plaintiff’s claims here requires an assessment of the nature of his claims. See

DiGaetano v. DiGaetano, 163 N.H. 588, 591 (2012).

Accordingly, we now consider the nature of the plaintiff’s claims to 

determine whether they fall within the narrow limits of the probate court’s 

exclusive jurisdiction. In DiGaetano, we examined the scope of the probate 

court’s jurisdiction with respect to a dispute over a family trust by assessing 

the nature of the dispute or claims to determine whether they fell within the 

probate court’s jurisdiction. Id. In that case, we applied a two-part test that 

examines: (1) whether the action relates to an estate, will, or trust; and (2) 

whether the relief sought is equitable or legal. Id. The defendant suggests that 

the DiGaetano analysis is useful here as well. We agree. He argues, however,

that the probate court has exclusive jurisdiction over the plaintiff’s claims 

because they all relate to the estate, given that they “arose during the probate 

of the [e]state . . . from actions [the defendant] took as [e]xecutor in 

administering the [e]state and distributing [e]state assets.” On this point, we 

disagree.

While the DiGaetano test and the language of RSA 547:3, I(b) both focus 

on a matter’s relationship to a court’s jurisdiction, neither the test nor the 

statute should be construed as broadly as the defendant suggests. As we 

noted earlier, RSA 547:3 must be interpreted narrowly. Thus, the term 

“relating to” in the statute requires a direct connection to the elements of 

probate court jurisdiction, which, as defined by the statute and at issue here, 

concern the “composition, administration, sale, settlement, and final 

distribution” of an estate. RSA 547:3, I(b).

In DiGaetano, we examined a separate statute, RSA 547:3, I(c) (Supp. 

2011), and determined that the nature of the plaintiffs’ claim in that case 

required the interpretation of the meaning and validity of a trust, a “task 

squarely within the exclusive jurisdiction of the probate court under [the 

statute].” DiGaetano, 163 N.H. at 591. Thus, for the purposes of determining 

the nature of a party’s claim in the context of DiGaetano’s jurisdictional 

analysis, it is the manner by which an action relates to an estate that is the 

critical inquiry, not whether a relationship simply exists. Therefore, the 

determination of subject matter jurisdiction in this case depends upon whether 

a direct connection exists between the plaintiff’s claims and the composition, 

administration, sale, settlement, and final distribution of the estate, and 
8

whether the connection relates to the estate or will in a manner that mandates 

the probate court’s exclusive jurisdiction.

Here, the plaintiff’s claims do not require the interpretation of a will or 

trust, nor do they require an assessment of the estate’s administration or seek 

a re-distribution of the estate’s assets. Although the plaintiff’s action may 

pertain, in some measure, to the parties’ settlement of their interests in the 

estate, the dispute does not relate to the manner by which the estate was 

settled. Rather, the estate has been settled and the assets have been 

disbursed with the defendant receiving title to the estate’s entire interest in 

Rocky Point and the plaintiff receiving the entire interest in the marital home. 

The plaintiff seeks monetary damages, not a re-opening of the estate’s 

administration or a redistribution of estate property. Resolution of the parties’ 

dispute does not depend upon an analysis of “the composition, administration, 

sale, . . . and final distribution of [the decedent’s] estate[]” or “the interpretation 

and construction of wills.” RSA 547:3, I(b)-(c). The plaintiff’s claims challenge 

the defendant’s conduct and representations made during the negotiation of 

the settlement. Thus, the litigation of this dispute requires fact-finding 

regarding the parties’ intent, their representations to one another, and their 

knowledge of the value of Rocky Point garnered before, during, and after the 

probate of the estate.

The plaintiff’s claims are common law tort and equitable claims against 

the defendant in his personal capacity based upon the defendant’s allegedly 

fraudulent conduct. While the plaintiff may have been a beneficiary of the will, 

his claims are personal in nature and arise from alleged conduct that is 

incompatible with a proper administration or settlement of an estate. See Frost 

v. Frost, 100 N.H. 326, 327, 329 (1956) (plaintiff’s claim for services rendered 

to decedent which were refused by the executor during estate administration 

constituted a claim against the executor personally and not the estate). The 

facts and circumstances surrounding the plaintiff’s claims may have a 

relationship to the estate, but the plaintiff is suing his son and not the estate. 

More specifically, the plaintiff is challenging the defendant’s conduct in a 

manner that does not require the probate court’s expertise or its jurisdiction 

because he is challenging the defendant’s representations concerning the value 

of an estate asset and not the manner by which he administered, sold, settled 

or distributed estate assets. Consequently, the manner by which these claims

relate to the decedent’s estate and will is tangential, not direct, and thus, the 

plaintiff’s claims do not fall within the probate court’s exclusive jurisdiction.

B. Defendant’s Claim of “Absurd Results”

The defendant nonetheless argues that an interpretation of the statute in 

the manner indicated above will lead to absurd results which enable “a 

beneficiary to sue an executor in Superior Court several years after probate is 

closed . . . [,] contrary to New Hampshire law.” Similarly, the defendant 
9

maintains that granting the plaintiff relief here would convert the superior 

court to an appellate court with jurisdiction over probate matters, because a 

party dissatisfied with the findings of a probate court could “bring an action 

against the executor or administrator in Superior Court, at any time.” We find 

the logic behind the defendant’s claimed absurdities to be flawed.

First, the superior court here will have no occasion to review or assess 

the probate court’s prior rulings and findings. Rather, upon remand, the trial 

court will be required to assess the conduct of the executor and determine the 

parties’ knowledge and intent before, during, and after the probate court 

proceedings. Second, our interpretation of RSA 547:3, I(b) and our ruling on

the nature of the plaintiff’s claims will not permit the re-opening of stale 

probate claims years after the administration of an estate. Instead, our 

decision identifies the proper forum in which an aggrieved beneficiary may

pursue his claims after discovering allegedly unlawful conduct by an executor. 

We conclude that depriving an aggrieved beneficiary of a forum in which to 

pursue claims which accrued outside the strict time limits applicable to 

probate actions and to seek damages when an executor has wrongfully 

liquidated, sold, or misappropriated estate assets would itself be an absurdity 

that the law cannot condone.

Applying the defendant’s expansive interpretation of the term “relates” in 

RSA 547:3, I(b) would require a beneficiary of a will who has incurred losses as 

a result of the negligence of the attorney who drafted the instrument to pursue 

his or her claims in probate court simply because the claim “relates” to a will. 

The same rationale would similarly require that an executor who engages in 

fraudulent conduct by improperly distributing estate property to a nonbeneficiary, or another third party for the executor’s benefit, be sued in probate 

court. Our canons of statutory construction do not permit or countenance an 

interpretation of a statute that would lead to these absurd results. See State v. 

Brawley, 171 N.H. ___, ___ (decided September 18, 2018) (slip op. at 3) (“We 

construe all parts of a statute together to effectuate its overall purpose and 

avoid an absurd or unjust result.”). Accordingly, the superior court, as a court 

of general jurisdiction, is a proper forum in which the parties’ dispute may be 

heard and determined. In light of this ruling, we need not reach the plaintiff’s 

remaining appellate arguments.

Reversed and remanded.

LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ., 

concurred.