Dainton v. Watson

• Decision Date: 11 February 1983
• Docket Number: No. 5744,5744
• Citation: 658 P.2d 79
• Parties: Elizabeth DAINTON, Appellant (Defendant), Wayne Dainton and Juanita Sorem (Defendants), v. Minerva C. WATSON, Executrix of the Estate of Verlie O. Altman, Deceased, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 79

658 P.2d 79

Elizabeth DAINTON, Appellant (Defendant), Wayne Dainton and Juanita Sorem (Defendants), v. Minerva C. WATSON, Executrix of the Estate of Verlie O. Altman, Deceased, Appellee (Plaintiff).

No. 5744.

Supreme Court of Wyoming.

Feb. 11, 1983.

Dennis C. Meier of Meier & Donovan Law Office, Lusk, signed the brief and appeared in oral argument on behalf of appellant.

Alfred G. Kaufman, Jr., Lusk, signed the brief and appeared in oral argument on behalf of appellee.

Before ROONEY ^*, C.J., and RAPER, THOMAS, ROSE ^**, and BROWN, JJ.

RAPER, Justice.

This is an appeal from the judgment of the district court declaring a $20,000 bequest to Elizabeth Dainton (appellant) forfeited and denied pursuant to the terms of a no-contest or in terrorem clause ¹ in the will of Verlie O. Altman. The provision of that clause was invoked as a result of appellant's unsuccessful attempt to contest the validity of the will of Verlie O. Altman, deceased. We have already reviewed the will contest proceeding and have affirmed the jury's decision upholding the validity of the will. Matter of Estate of Altman, Wyo., 650 P.2d 277 (1982). The issue raised here is whether the district court erred in enforcing the terms of the will's in terrorem clause without first considering whether appellant contested the will in good faith and with probable cause to believe the will was invalid.

We will affirm.

Verlie O. Altman died testate on May 4, 1981, at the ripe old age of eighty-five. Mr. Altman was unmarried and without issue at the time of his death. Nine days after his death, on May 13, 1981, appellee admitted Verlie O. Altman's Last Will and Testament to probate in Niobrara County, Wyoming. That will had been executed by Mr. Altman on July 7, 1977. The will was subsequently contested by appellant, Mr. Altman's sister, on the grounds of improper execution, incompetency of the testator, and undue influence. After a jury trial, the contest failed and the validity of the will was upheld and affirmed by this court as noted.

After appellant's action to contest the will failed, appellee filed a petition for forfeiture in the district court asking that the bequest to appellant, appearing in the will, be forfeited pursuant to the in terrorem clause of the will. Additionally, appellee asked that the bequests to Wayne Dainton and Juanita Sorem also be forfeited under the same clause for appearing as witnesses in the will contest proceeding in behalf of appellant. Verlie Altman's bequests to Wayne Dainton and Juanita Sorem were not forfeited by the district court. That decision is not on appeal in that the attempted cross-appeal was dismissed for failure of the cross-appellant to timely file her brief. From the judgment of the district court ordering that appellant's bequest be forfeited and denied, appellant brings this appeal.

Verlie Altman, in his will, made quite a number of specific bequests to family members and friends. Included in those bequests was one for $20,000 to his sister, appellant. Mr. Altman also included a no-contest or in terrorem clause in his will which is at issue here. It provided:

"SIXTH, I hereby direct that if any person entitled to any legacy, bequest, interest or estate shall directly contest or dispute the probate of this Will, or institute or become a party to instituting any proceedings, or act in the interest of any person who shall institute any proceedings, suit or action for the purpose of changing the effect of this Will wholly or in part, then and in that event all the legacies, bequests, estate or remainder interest declared in favor of such person by this Will or herein provided, shall immediately thereupon be revoked, cease and determine and become wholly void and of no effect."

Specifically on appeal, appellant would have this court adopt a rule governing the enforcement of a no-contest or in terrorem clause similar to the rule found in § 3-905 of the Uniform Probate Code (U.P.C.). That section provides:

"A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings."

Appellant argues that public policy demands that such a rule be applied to this and similar cases where a will is contested in good faith and with probable cause to question the will's validity. Appellant contends that the district court erred in not reaching the question of appellant's motive in contesting the will before strictly construing the terms of the no-contest clause.

Appellant made a similar public policy argument before the district court which that court rejected when it concluded as a matter of law:

"1. That the sixth paragraph of the Last Will and Testament of Verlie O. Altman, deceased, is valid. The law of origin of the Will contest portion of the Wyoming Probate Code is the state of California, and the state of California has held that similar provision in Wills provided for forfeiture of legacy in the event of a contest of Will by a legatee was not contrary to public policy, was valid and binding upon the legatee, and was to be given effect according to the intent of the testator.

Counsel for Defendants argue that Section 3-905 of the Uniform Probate Code provides that such a provision is unenforceable if probable cause exists for instituting proceedings. The State of Wyoming has not adopted the Uniform Probate Code, nor has the legislature seen fit to adopt Section 3-905 of said code."

We agree with the position taken by the district court.

In the first place, in considering a will, it is the long-accepted position of this court that intent of the testator must govern. Kortz v. American Nat. Bank of Cheyenne, Wyo., 571 P.2d 985 (1977); Hammer v. Atchison, Wyo., 536 P.2d 151 (1975); In re Gilchrist's Estate, 50 Wyo. 153, 58 P.2d 431, reh. denied 50 Wyo. 153, 60 P.2d 364 (1936). In determining the testator's intent, we can only determine that intent from what the will says; we are not free to write terms in the will that do not, in reality, appear there. Kortz v. American Nat. Bank of Cheyenne, supra; Hammer v. Atchison, supra; Churchfield v. First Nat. Bank of Sheridan, Wyo., 418 P.2d 1001 (1966). We will not supply words for a testator where the will is clear and unambiguous. Kortz v. American Nat. Bank of Cheyenne, supra; Matter of Estate of Lendecke, 79 Wyo. 27, 329 P.2d 819 (1958).

In the case before us, the testator, Verlie O. Altman, quite unambiguously expressed his intent that anyone entitled to a bequest under his will who instituted proceedings contesting the validity of any part of the will would have his bequest revoked. Under our aforementioned rules governing the interpretation of wills it is quite obvious that the district court did not err in declaring the testator's bequest to appellant forfeited and denied. It would have been error for the district court to have done otherwise. The no-contest or in terrorem clause in Verlie Altman's will did not exempt those who challenged the will in good faith and with probable cause from its provisions. The will clearly said anyone who challenged the will would lose his or her share. Therefore, to have applied the terms of the will in the manner in which appellant suggests would require judicial construction where such construction would be clearly improper.

We also note, as did the district court, that the will contest provisions found in the Wyoming Probate Code ² were taken from the California Probate Code and that those provisions retain their similarity. See, Gaunt v. Kansas University Endowment Ass'n of Lawrence, Kansas, Wyo., 379 P.2d 825 (1963). That being the case, this court has previously announced an inclination to follow California's precedent when dealing with will contest matters which are before us for the first time. The issue raised by appellant concerning no-contest clauses is one of first impression for us. The view of the California courts on the enforcement of no-contest or in terrorem clauses is in accord with the position we are taking here. In Estate of Friedman, 100 Cal.App.3d 810, 161 Cal.Rptr. 311 (1979), a California court of appeals, faced with an argument nearly identical to the one made here by appellant, made this statement on the law in California as it regards no-contest clauses:

" * * * Our Supreme Court has repeatedly declared that a provision in a will providing for forfeiture of a legacy in the event of a contest of the will by the legatee is not contrary to public policy, is valid and binding upon the legatee, and is to be given effect according to the intent of the testator. [Citations.] This principle has been consistently applied by the intermediate appellate courts of this state. [Citations.] * * * " Id. 161 Cal.Rptr. at 313.

Although we are not bound by the decisions of the California courts, we are persuaded by their decisions that our holding on the issue is correct.

In reaching our decision, we, like the district court, find additional strength for our position from the fact that our legislature has chosen not to incorporate § 3-905 of the Uniform Probate Code into the recently enacted Wyoming Probate Code. Chapter 54, Session Laws of Wyoming, 1980. The Wyoming legislature and the committee that helped draft the new probate code were no doubt aware of the Uniform Probate Code and all of its various provisions; yet they chose not to incorporate § 3-905 or anything like it into our statutes. Appellant urges us now to do what the legislature chose not to do; that is, to judicially implement the provisions of § 3-905 into the body of the probate law in Wyoming. That we will not do.

Appellant argues that public policy demands that those who contest wills in good faith and with probable cause to believe that a will is invalid should be protected from strict enforcement of the terms of a no-contest clause. To strictly enforce no-contest clauses, ...