Enz's Estate, In re

• Decision Date: 28 August 1973
• Docket Number: No. 72--191,72--191
• Citation: 33 Colo.App. 24,515 P.2d 1133
• Parties: In the Matter of the ESTATE of Viola Patricia ENZ, also known as Viola P. Enz, deceased. Donna B. JOHNSTON et al., Caveators-Appellants, v. The COLORADO NATIONAL BANK OF DENVER, Proponent-Appellee, John Rushing Grant and William R. Grant, Proponents, Beneficiaries and Appellees. . II
• Court: Colorado Court of Appeals

Page 1133

515 P.2d 1133

33 Colo.App. 24

In the Matter of the ESTATE of Viola Patricia ENZ, also known as Viola P. Enz, deceased Donna B. JOHNSTON et al., Caveators-Appellants, v. The COLORADO NATIONAL BANK OF DENVER, Proponent-Appellee John Rushing Grant and William R. Grant Proponents, Beneficiaries and Appellees.

No. 72--191.

Colorado Court of Appeals, Div. II.

Aug. 28, 1973.

Rehearing Denied Sept. 18, 1973.

Certiorari Denied Dec. 3, 1973.

L. Joseph Pittroff, Frickey, Cairns & Wylder, P.C., Norton Frickey, Earl S. Wylder, Denver, for caveators-appellants.

Garrett & O'Hara, Peter L. Garrett, Denver, for proponent-appellee, The Colo. Nat. Bank of Denver.

Friedman, Bader & Moore, Davis W. Moore, Jr., Denver, for proponents-beneficiaries, and appellees, John Rushing Grant and William R. Grant.

ENOCH, Judge.

This is an appeal from a judgment admitting a lost will to probate.

Viola Patricia Enz died on April 18, 1970. The Colorado National Bank, as executor, petitioned the probate court to admit for probate a document alleged to be a copy of the lost will of the decedent. Nine of decedent's heirs at law filed caveats contesting admission of the will. Trial of the case was to a jury which returned a verdict in favor of the proponents and beneficiaries of the will. The caveators appeal from the judgment entered on the verdict. We affirm.

On March 19, 1964, the decedent executed her last will and testament which had been prepared by her attorney. The original and one copy of the will was retained by decedent; one copy was retained by her attorney; and another copy was sent to the Colorado National Bank. The will provided certain bequests to several of the decedent's relatives with the residue of the estate to be transferred to two trusts for the benefit of her great-grandnephew, John Rushing Grant. The Bank was named executor of the will.

Subsequent to the execution of the will, decedent, upon the basis of a report of a medical commission, was found by the court to be mentally ill and her attorney was appointed guardian and the Bank was appointed convervator of decedent's estate. Thereafter, several searches failed to produce the original of the will. Following decedent's death, the original was not found. The Bank subsequently filed a copy of the will for probate and was appointed special administrator of the estate.

I.

Prior to the trial, one of the caveators filed a petition to remove the Bank from its position as special administrator of the estate. The court, after a hearing, denied the petition and the denial thereof is asserted as error. It was alleged that under the provisions of C.R.S.1963, 153--10--8(2), the Bank should be removed as fiduciary because it had wasted and mismanaged the estate and conducted itself in such a manner as to endanger the interest of the petitioner by proceeding to admit for probate the purported lost will of the decedent. The Bank had in its possession a copy of the will appointing it executor. C.R.S.1963, 153--5--17(1), provides that it is the duty of the executor of a will, knowing of his being so named and appointed, to begin proceedings to cause such will to be proved. The caveators' contention that this duty does not arise with respect to a lost will is rejected.

It is also argued that the Bank is financing the probate of the will to the detriment of the caveators. This argument is answered by C.R.S.1963, 153--5--17(2), which provides that an executor, when acting in 'good faith' to establish a will, shall be entitled, at the expense of the estate, to employ counsel and incur expenses necessary to prove or attempt to prove the will. The record does not establish that the Bank acted in bad faith in proceeding to establish the lost will. Under the circumstances, the court properly found that the statutory requirements for removal of the Bank as fiduciary were not established.

II.

The caveators stipulated before the trial to three of the requirements for establishing a lost will under 1965 Perm.Supp., C.R.S.1963, 153--5--28. It was stipulated that the will dated March 19, 1964, was validly executed; that the original of the will had been lost or for some other reason was unavailable; and that the contents of the will were established by the Bank's exhibits. The parties stipulated that the only issue to be determined was whether the will was in existence at the time of the death of the decedent.

Upon trial, the decedent's attorney testified to the circumstances surrounding the execution of the will and to various conversations he had had with decedent concerning the whereabouts of the original of the will. He testified to statements by the decedent that the will had not been destroyed and that it would be found in her apartment. Further, he testified that he had read a copy of the will to decedent; that she had approved the will; and that she desired to republish the original will with a minor change.

The caveators contend that this testimony was in violation of the dead man's statute, C.R.S.1963, 154--1--2. The caveators filed a pretrial motion to declare the decedent's attorney incompetent to testify at trial. The trial court, in the exercise of its discretion, ruled that such objection should be made at trial when the witness is called and the alleged objectionable testimony is offered. See Zietz...