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DUGGAN, J. The petitioners, the guardians of Phuong Phi Thi Luong, appeal orders of the Hillsborough County Probate Court (Patten, J.) rejecting two estate plans they proposed for Phuong Phi Thi Luong pursuant to RSA 464-A:26-a (2004) and adopting an alternative estate plan drafted by a court-appointed referee. We hold that the probate court was within its discretion to reject the estate plans proposed by the petitioners, but find that the court went beyond its authority in adopting the estate plan drafted by the court-appointed referee. Accordingly, we affirm in part, reverse in part, and remand.

The plaintiff files this malicious prosecution action seeking damages he claims were caused as a result of the defendant's previous filing of two law suits against him and the Terry C. and Terry M. Bennett Charitable Remainder Unitrust (the trust) in Rockingham County. Specifically, the plaintiff claims that the defendant filed the lawsuits without probable cause and with the primary purpose of interfering with the plaintiff's lawful business activities. The defendant denies the allegations and argues, among other things, that the doctrines of res judicata and collateral estoppel preclude the plaintiff from recovering damages in the present case. For the reasons stated in this order, the court finds for the plaintiff in the amount of $434,000.

Plaintiffs are all of the children and grandchildren of Helen V. Meding, and are the sole income and remainder beneficiaries of the Helen V. Meding Trust (the Trust). The Trust names two cc-trustees, Attorney John L. Fairbanks and Dartmouth National Bank, the predecessor of defendant Fleet Bank - NH. The will appoints John Fairbanks as executor, and Dartmouth National Bank as alternate executor if Fairbanks dies or otherwise fails to qualify. On December 28, 1989, John Fairbanks was indicted by the Sullivan County- grand jury for theft. He immediately disappeared and has not yet been apprehended. There appears little doubt that Fairbanks, as executor, stole significant assets from the Meding Trust. Plaintiffs seek damages from defendant for the funds stolen by Fairbanks arguing that the Bank, as co-trustee, breached its fiduciary duties to-them as beneficiaries of the trust.