Blatt v. Blatt

• Decision Date: 15 February 1926
• Docket Number: 11129.
• Citation: 79 Colo. 57,243 P. 1099
• Parties: BLATT et al. v. BLATT.
• Court: Colorado Supreme Court

243 P. 1099

79 Colo. 57

BLATT et al. v. BLATT.

No. 11129.

Supreme Court of Colorado, En Banc.

February 15, 1926

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

Petition by Lydia M. Blatt for the interpretation and construction of the will of Charles H. Blatt, deceased, in which Etta M Blatt and others filed a cross-petition. From a judgment of the District Court affirming a judgment of the county court in favor of petitioner, cross-petitioners bring error.

Affirmed.

See also, 234 P. 162.

W. L. January and Robert Emmet Lee, both of Denver, for plaintiffs in error.

Frank McDonough, Sr., Frank McDonough, Jr., and Gilbert L. McDonough, all of Denver, for defendant in error.

CAMPBELL J.

In June, 1907, Charles H. Blatt, at that time domiciled in Pennsylvania, made his will at Ellwood City in that state. In 1908 he removed to Colorado, and lived therein continuously until his death, at Denver, March 18, 1922. A Denver bank, custodian of the will, deposited it with the clerk of the county court of the city and county of Denver a few days after Blatt's death. March 24, 1922, Lydia M. Blatt, the widow, as proponent, filed a petition in the county court, setting forth that this was her husband's will, and that the Ellwood City Trust Company, named as executor therein, had ceased to exist as a corporation, and she asked that the will be admitted to probate and letters of administration with the will annexed granted to her. Letters as prayed for were issued to the widow May 15, 1922, and on the same day she filed a petition in the county court for an interpretation and construction of the will, and asked the court to determine who are the heirs at law of the testator, expressly reserving her right of election under the Colorado statute, and also filed that election to take one-half of the decedent's property under the statute, being, in substance, the same election which had theretofore been filed by her. To this petition two brothers, a sister, and a nephew of the testator filed their cross-petition in which they asked that distribution of the estate be made under the laws of Pennsylvania, where, had the will been brobated in that state, they would be next of kin, and as such entitled to onehalf of the remainder of the estate, if the same was not disposed of by the will. They asked that distribution be not made under the laws of Colorado, which, if the same was not devised, would vest the remainder fee in the widow. This cross-petition was replied to, and, upon the hearing by the county court, in which testimony was taken that the testator had been a resident of Colorado continuously from the year 1908 until his death, and that all of the property of the estate, both real and personal, was situate in that state, the findings were in favor of the widow and against the next of kin, and the entire property was awarded to her. Upon an appeal to the district court, the judgment of the county court was affirmed. The next of kin are here asking a review of the judgment of the district court.

The will reads:

'Item. 1. I give, devise and bequeath to my wife Lydia Blatt, all my property, real, personal and mixed, and wherever situate, so long as she shall live, and I hereby authorize my said wife and my executor hereinafter named, or in case it shall for any reason cease to act as my executor, then whoever shall lawfully represent me, whenever in the judgment of my said wife and executor, they shall deem it advisable; to sell said real estate or any part thereof, and I also authorize them to make and deliver all necessary and needful deeds and conveyances for the purpose of conveying the said property, as folly and to the same effect that I might or could do if then living. I also authorize my said wife, whenever it may become necessary for her maintenance or support, or whenever, in her judgment, it shall be advisable; to sell any part or all of my personal property, and to make the necessary and needful transters and conveyances for the same.'

No other disposition of the property of the estate than that contained in the foregoing item was made. There certainly was no express gift of the remainder. The will is entirely silent as to the testator's intention with respect thereto.

1. We think counsel for next of kin are right in saying that the principal question for decision is, By the laws of which state is this controversy to be determined? We must, however, first ascertain if the will has disposed of the remainder, or fee, of the property in which the widow was given a life estate. If, as next of kin contend, the remainder was in fact devised to them by the will, that settles this controversy in their favor, whether the laws of Colorado or Pennsylvania control, subject, of course, to the widow's statutory rights. If the remainder is undisposed of, we must also determine, if there be a conflict in the laws of the two states, which are to be our guide in construction. It is conceded by the parties that, if this will had been proved in Pennsylvania, since the testator left surviving him neither a child nor children nor descendants of a child or children, a one-half interest in this remainder, if not disposed of in the will, would, under the intestate laws of that state, pass to the next of kin and the other one-half to the widow. By our section 5271, C. L. 1921:

'All such estate, both real and personal, as is not devised or bequeathed in the last will of any person, shall descend and be distributed in the same manner as the estate of an intestate, and such intestate estate shall be administered by the executor or administrator, who shall be appointed to administer the testate estate.'

It is thus apparent that there is a conflict in the laws of the two states.

It seems to us altogether clear that this will dispose only of a life estate in all the property by giving it to the widow. The remainder, the fee, one-half of which the next of kin here claim, is not devised or bequeathed to any person; the will being silent with respect thereto. Not being devised or bequeathed in the will, it descends and must be distributed in the same manner as the estate of an intestate. The intestate law of Colorado, section 5151, C. L. 1921, provides that intestate property, both real and personal, shall descend and be distributed to the testator's surviving widow as her absolute estate, subject only to the payment of debts, where the testator leaves no child or children or descendants of a child or children surviving him. Both in their opening and closing briefs counsel for next of kin ingeniously argue that there is no inconsistency in asserting, as they do, that if this will be construed in the light of the Pennsylvania statutes, this residue or remainder, as matter of fact, is devised and bequeathed by this will, yet the very statutes of Pennsylvania, which they say govern, apply only to such property of the testator as is not disposed of by the will. And counsel themselves elsewhere in their argument say that this remainder, not being devised by the will, passes under the intestate laws of Pennsylvania to the next of kin. Nevertheless, counsel here ask this court to enforce what the testator clearly intended, as they say, when, in effect, he said that he left a life estate to his widow and the residue to his next of kin. The same thought they thus express in their reply brief:

'Can this property, which defendant in error claims under the Colorado statute, be regarded as intestate property? or, Is it not under the will, in view of the circumstances under which the will was drawn, to be considered as devised and bequeathed to those who, under the Pennsylvania statutes, would take, if the property had all been situate in Pennsylvania, and if the testator had in fact died intestate as to the same?'

Possibly anticipating that the decision of this court might be against them, and that we might hold that the remainder was not devised, learned counsel in their second breath assert that the remainder was not disposed of by will, and is to be treated as the estate of an intestate. We are constrained to say that the inconsistency in these arguments is not, as counsel contend, merely superficial. It is substantial. The remainder could not be treated both as testate and intestate as disposed of and undisposed of. It is either one or the other; it cannot be both or either as may suit the convenience of counsel in a particular case. True, the intention of the testator is the paramount rule in construction of wills, and our courts in this country avail themselves of decisions and statutes in other jurisdictions as a circumstance in construing a will. Though the intention of the testator is a paramount rule, that intention is to be derived from some expression of the will itself and not mere silence. A devise by implication is never inferred by silence. It must rest on some language in the will which the testator has employed and not upon some language which the testator might have had in mind at the time but did not use. The only language in this will, if any, that might reflect the intention of the testator is not consistent with the claim that his object was to give the remainder of his estate to the next of kin. The express provision in the will, that the executor or widow or both might sell any or all of the property whenever they thought it advisable, is not in harmony with the scheme that all of the remainder or any part of it was to go undiminished to his next of kin. We do not base our conclusion upon this language, but advert to it chiefly to show that it constitutes the only expression of the testator that in any degree, near or remote, refers to any right or interest in the property of the estate other than...