Dowd v. Dowd

• Decision Date: 26 June 1941
• Docket Number: 6866
• Parties: DAVID G. DOWD, GERTRUDE DOWD BARTLETT, JENNIE DOWD BENTHIN, CHARLES A. DOWD and GEORGE H. DOWD, Appellants, v. IDA LEONORE DOWD, Respondent
• Court: Idaho Supreme Court

115 P.2d 409

62 Idaho 631

DAVID G. DOWD, GERTRUDE DOWD BARTLETT, JENNIE DOWD BENTHIN, CHARLES A. DOWD and GEORGE H. DOWD, Appellants, v. IDA LEONORE DOWD, Respondent

No. 6866

Supreme Court of Idaho

June 26, 1941

REHEARING DENIED JULY 21, 1941.

WILLS-SUPPRESSION OF WILL-ESTOPPEL.

1. The statute requiring every custodian of a will to produce it within 30 days after receipt of information of the death of the maker thereof, and to deliver it to the probate court or to the executor named therein, declares a "public policy" involved in the establishment of every legally executed last will. (I. C. A., sec. 15-201.)

2. Where surviving widow knew of husband's will which was executed before divorce proceedings after which the parties had remarried, but procured appointment of herself as administratrix on allegations that there was no will, and made same allegations in action to recover a large sum from the estate, surviving widow was "estopped" after her claim had been materially reduced, and there would be something for deceased's children by former marriage, to have probated such will which left children only nominal sums. (I. C. A., sec. 15-201.)

REHEARING DENIED JULY 21, 1941.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

From judgment of district court, reversing judgment and decree of probate court, ordering will admitted to probate, plaintiffs appeal. Reversed, with direction to trial court to affirm order of probate court denying probate of will.

Judgment reversed, with direction. Costs awarded to appellants.

O. A Johannesen, Ralph L. Albaugh and W. K. Naylor, for Appellants.

Where it is shown that there has been no obstacle to the assertion of a right to probate a will, a party may, by his conduct estop himself from subsequently having a will probated. (10 R. C. L., 819; 57 L. R. A. 260, note.)

The respondent-proponent, by reason of having with-held the alleged will from probate for an unreasonable length of time with full knowledge of its existence, is now estopped from securing its probate and from claiming any interest thereunder. (Foote v. Foote, 28 N.W. 90; Conzet v. Hibben, 112 N.E. 305, Ann. Cases, 1918A, 1197; In re Lyman's Will, 36 N.Y.S. 117; Hayes v. Simmons, 277 P. 213.)

"Where a person has two inconsistent remedies for the enforcement of a right, and pursues one, such person is estopped from pursuing the other." There has been an election of remedy. (10 Cal. Jur. 3, 4; J. I. Case etc. v. Copren, 187 P. 772, per Hart; Herdman v. Hanson, 189 P. 440, per Lennon; 9 R. C. L. 957, 961.)

Otto E. McCutcheon, for Respondent.

There is no question of res adjudicata here. The Idaho statute, sec. 15-360, provides that "if, after granting letters of administration on the ground of intestacy, a will of a decedent is duly proved and allowed by the court the letters of administration must be revoked, and the power of the administrator ceases, and he must render an account of his administration within such time as the court shall direct."

The order admitting the will to probate and providing for the appointment of an executor supersedes per se all former administrations of the estate, and the new order operates not by overthrowing the former order but it does operate against the parties otherwise benefited by the mistake. (I. C. A., sec. 15-360; McCauley v. Harvey, 49 Cal. at 505; Re Estate of William Walker, 117 P. 510, 36 L. R. A. N. S. 89 at 90.)

These provisions apparently indicate that no importance attaches to a finding of the court theretofore made that decedent died intestate. Also there is no limitation of time prescribed by law for the production of a will and no penalty is prescribed except that the person named as executor waives his right to letters testamentary. (I. C. A., sec. 15-204.)

A failure to present the will makes the person failing responsible for all damages sustained by anyone injured thereby. (I. C. A., sec. 15-201.)

The rule, therefore, is that the establishment of a will necessarily requires a revocation of letters of administration granted on a supposition of intestacy. (Kane v. Paul, 14 Pet. 33, 10 L.Ed. 341 at 343; Cairns v. Donahey, 59 Wash. 130, 109 P. 334; Wollard v. Peterson, 143 Kan. 566, 56 P.2d 476.)

AILSHIE, J. Morgan and Holden, JJ., concur. GIVENS, J., Chief Justice Budge, (Dissenting).

OPINION

AILSHIE, J.

Respondent and David F. Dowd intermarried December 26, 1914. November 11, 1915, David F. Dowd made and executed his will, disposing of his entire estate, in words as follows:

"LAST WILL AND TESTAMENT OF DAVID F. DOWD.

"Realizing the uncertainty in the length of life and desiring to make disposition of may property while in sound mind and body, I, David F. Dowd, hereby declare and publish this my last will and Testament.

1. I desire that my funeral expenses and debts, if any, be settled early as convenient after my death.

2. I will, devise, and bequeath to my wife Ida Leanore Dowd to have and to hold for her and her heirs and assigns forever all of my property of every kind and nature, both real and personal of which I may be possessed at the time of my death.

3. I will, devise and bequeath to my five children as follows: To D. G. Dowd, the sum of $ 25.00 in cash. To H. F. G. Dowd, the sum of $ 25.00 in cash. C. A. Dowd, the sum of $ 25.00 in cash. Jennie K. Dowd, the sum of $ 25.00 in cash and to Mrs. Mary Gertrude (Dowd) Bartlett, the sum of $ 25.00 cash.

4. I request that the said Ida Leanore Dowd be appointed executrix of this my last will and testament and that she may be permitted to serve without bond.

In Witness Whereof I have hereunto set my hand this 11th day of November A. D. 1915 in the presence of

witnesses called by me to witness the signing of my will.

David F. Dowd"

(Duly witnessed)

July 26, 1933, Dowd and wife entered into an agreement settling their property rights and thereafter and on the same date, a decree of divorce was entered, dissolving the bonds of matrimony existing between the parties and dividing and disposing of the property in accordance with their agreement, as follows:

"IT IS FURTHER ORDERED, adjudged and decreed that the following described property, situated in Bonneville County, Idaho, be, and the same is hereby declared to be the separate property and estate of the plaintiff, [Mrs. Dowd] to-wit:

Lots One and Two, Block One, of the Townsite of Milo, Idaho, and the West Half of the Northwest Quarter of Section Nine, Township 3 North, Range 39 East, Boise Meridian, containing 84 acres, more or less, according to Government Survey, together with 24 shares of stock in the Harrison Canal & Irrigation Company, representing 120 inches of water.

Also those certain store fixtures heretofore used by the plaintiff in her millinery business carried on at Idaho Falls, Idaho.

"IT IS ALSO FURTHER ORDERED, ADJUDGED AND DECREED that the following described property, situated in Bonneville County, State of Idaho, be, and the same is hereby, declared to be the sole and separate property and estate of the defendant [Mr. Dowd], to-wit:

Lots Four, Five and Six in Block 23 of Railroad Addition to the town of Idaho Falls, formerly Eagle Rock, as per the recorded plan and plat thereof.

Also that all mining property, claims, filings, etc. wherever situated in the State of Idaho, or elsewhere, standing of record in the name of the defendant, or in which the defendant has any interest, however such interest may be evidenced, and together with any and all personal property of every kind and description held by the defendant, or by any person holding the same for him, is hereby declared to be the sole and separate property and the estate of the said defendant, and this court does hereby decree the same to be the sole and separate property and estate of said defendant, and that the plaintiff has no interest therein whatsoever, excepting.

That the plaintiff is the holder of a valid junior mortgage given to her by the defendant upon the property situated in said Block 23 in Railroad Addition to Idaho Falls, herein previously described, which mortgage is her sole and separate property."

November 3, 1933, the parties remarried. April 6, 1938, David F. Dowd died, leaving an estate consisting of real and personal property which was subsequently appraised at about $ 20,000. April 11, 1938, (the day following the funeral) Leanore Dowd (whom we will hereafter refer to as respondent) removed the will from the lock box at the bank and took it to a lawyer for advice, and was informed that it "was doubtful about the will" being in force and effect.

It is also conceded that all parties to the proceedings, that is, respondent and the appellants (five children of David F. Dowd by a former marriage), were notified of the existence of the will, although there is some dispute as to whether or not two of them were apprised, before the appointment of an administratrix, of the contents of the will. All parties to this action acted upon the theory that there was no will, or rather, that there had been a revocation of the will. In respondent's petition for letters of administration, she alleged, inter alia:

"That due search and inquiry have been made to ascertain if said deceased left any will and testament, but none has been found; and according to the best knowledge, information and belief of your petitioner, said deceased died intestate."

No opposition was made to the petition of respondent, for appointment as administratrix of the estate, and accordingly on April 26, 1938, an order was entered in the probate court adjudging that David F. Dowd died intestate and that respondent was his widow and appointing her as administratrix of the estate. April...