Douglas v. Newell
| Decision Date | 16 May 1986 |
| Docket Number | Nos. 85-105,85-106,s. 85-105 |
| Citation | 719 P.2d 971 |
| Parties | Donna I. Read DOUGLAS, James L. Read and Joanne Read Trumper, Appellants (Plaintiffs), v. Donald L. NEWELL and Earl R. Cherry, Jr., Personal Representatives of the Estate of Elizabeth Newell, Appellees (Defendants). Donald L. NEWELL and Earl R. Cherry, Jr., Personal Representatives of the Estate of Elizabeth Newell, Appellants (Defendants), v. Donna I. Read DOUGLAS, James L. Read and Joanne Read Trumper, Appellees (Plaintiffs). |
| Court | Wyoming Supreme Court |
Eric M. Alden of Jones, Jones, Vines & Hunkins, Wheatland, for appellants (plaintiffs) in No. 85-105 and appellees (plaintiffs) in No. 85-106.
Donald E. Jones of Jones and Graham Law Offices, Torrington, for appellees (defendants) in No. 85-105 and appellants (defendants) in No. 85-106.
Before THOMAS, C.J., and ROONEY, * BROWN, CARDINE and URBIGKIT, JJ.
Plaintiffs (appellants in Case No. 85-105 and appellees in Case No. 85-106) brought an action for declaratory judgment construing the will of Elizabeth Newell (hereinafter referred to as "deceased") with respect to the occurrence or nonoccurrence of the ademption of a specific devise contained in Article X of the will, contending that it did not adeem. Defendants (appellees in Case No. 85-105 and appellants in Case No. 85-106) presented, as an affirmative defense, a contention that Article X had lapsed at the death of deceased's husband. Both parties moved for a summary judgment. The trial court granted plaintiffs' motion on the issue of lapse--i.e., Article X did not lapse--and it granted defendants' motion on the issue of ademption--i.e., Article X did adeem. Both parties appealed from the judgment.
The unanimous court affirms the decision that Article X had not lapsed, and a majority of the court determines that the specific bequest did not adeem, with which determination I dissent.
Deceased and her husband owned real property in Nebraska and Wyoming. Deceased owned a percentage interest in real property in Converse County as a result of inheritance from a brother. The remaining percentage was owned by other relatives of deceased and of her brother.
A Nebraska attorney prepared wills for deceased and her husband which were executed at Mitchell, Nebraska, on September 19, 1969. Article II of deceased's will provided in part:
"I give and devise unto my husband, Louis Newell, if he shall survive me, all my real estate and interest therein, wheresoever situated, except however, any interest I may own in real estate in Converse County, Wyoming, which I inherited from my deceased brother, Frederic S. Read, which is disposed of in Article X of this will * * *."
Article III thereof provided in part:
Deceased's husband did predecease her.
On January 28, 1980, deceased and the other owners of the Converse County property executed a contract for a warranty deed in consideration of payments to be made over a five-year period. Deceased died on May 16, 1982. At that time $192,522 was due to her under the contract for deed. Two more annual payments were made under it, but there was a default on the final payment, which payment was due January 15, 1985.
As noted, the ultimate issue in this case is whether or not the disposition of the Converse County property is controlled by Article X of the will. Article X does control if it did not lapse upon the death of deceased's husband and if an ademption did not occur as to it when the property to which it pertained was sold under the contract for deed. Defendants contend that it did lapse and that Article III controls the disposition of the property. They further contend that if Article X did not lapse, the ademption occurred.
Both parties seem to recognize that there is an ambiguity in the will and that the construction of the will is to be resolved by determining the intent of deceased as such appears from a full and complete consideration of the entire will when read in the light of the surrounding circumstances. We have recently held such to be the law in In re Estate of Croft, Wyo., 713 P.2d 782 (1986). We need not repeat that which was said there.
Defendants construe Article II of the will as designating the Converse County property as that which should not pass to deceased's husband in any event; that such direction is not conditioned on the fact that he survive her; that Article X was intended to relate to, and be a part of, Article II, thus being effective only if the husband survived deceased; and that Article III, therefore, disposed of such property. Plaintiffs contend that Article II and Article X are two distinct provisions and that all of the provisions of Articles II, III and X can be given effect only if this distinction is recognized. They argue that defendants' literal interpretation of Article III would destroy the provisions of Article X.
These contentions evidence the ambiguity. See In re Estate of Lendecke, 79 Wyo. 27, 329 P.2d 819 (1958). Either Article X stands alone in disposition of the Converse County property or Article III disposes of such since deceased survived her husband.
In resolving the ambiguity in this will, we place great weight on the fact that Article III is a general provision whereas Article X is a specific one. In re Estate of Deutsch, Wyo., 644 P.2d 768 (1982).
" 'Where there is an inconsistency between a general and a specific provision, the latter will prevail * * * regardless of the order in which it stands in the will, but especially where the specific follows the general.' " In re Estate of Lendecke, 329 P.2d at 822, quoting from 95 C.J.S., Wills § 621 at 873 (1957).
4 Bowe-Parker: Page on Wills, § 30.11 (1961).
We agree with the trial court's determination that at the time the will was made the original testamentary scheme of distribution and the intent of deceased as expressed in the entire will were to have the real property received by her from her brother pass to plaintiffs under Article X; that the specific provisions in Article X prevail over the general ones in Article III; and that Article X did not lapse upon the prior death of deceased's husband.
This court having determined through the opinion of Justice Rooney that Article X of the will did not lapse, the question is pertinent as to whether or not it was subject to ademption by virtue of the disposition of the subject matter of the devise prior to deceased's death; i.e., whether or not the Converse County property was no longer the property of deceased at the time of her death as a result of the contract for deed.
The interest in question was a 29.17 per cent ranch land ownership inherited by decedent Elizabeth Newell from her brother. That ranch, called the Read lands, was jointly sold by the co-owners by installment contract.
The case contestants are the members of the Read family (nieces and nephews), as the beneficiaries of the special devise in the Read lands, contesting with the grandchildren, who are the residual devisees. The original intent of the decedent at the time of will execution to leave the Read lands to the Read family members is not seriously in question; what is involved is the query: whether the original intent will be abrogated by ademption. 1
Sequentially, the following occurred: September 19, 1969, decedent and her husband executed their will in Nebraska, prepared by a Nebraska attorney. Thereafter, on January 1, 1977, the Nebraska Uniform Probate Act became effective, which abolished ademption for the kind of transaction involved in this case. In the Fall of 1979 and early 1980, the Read lands were sold by the individual interest owners, under a joint installment contract. Prior thereto, on March 6, 1979, Wyoming had enacted its own new probate code, to be effective April 1, 1980, and thereafter, on May 16, 1982, Elizabeth Newell died.
The case in this aspect questions whether the remaining balance of $192,522 due to the decedent on the installment contract should go to the grandchildren or the nieces and nephews.
The pathway in this case, whereby the original intent of the will was avoided by trial-court decision, encompasses the following substantive concerns:
(1) Wyoming, for the first time, would now judicially adopt ademption by extinction through application to this will.
(2) The present probate code, effective April 1, 1980, would generally not be effective as to a will earlier executed.
(3) The application of the equitable conversion classification rule to remaining proceeds of an installment contract would destroy the interest and title to the real estate bequest defined in the will and by definition would cause the devise to extinguish.
(4) Without regard for execution in Wyoming, Wyoming rather than Nebraska law would apply to a construction of the...
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