Estate of Croft, Matter of
| Decision Date | 12 February 1986 |
| Docket Number | No. 85-146,85-146 |
| Citation | 713 P.2d 782 |
| Parties | In the Matter of the ESTATE OF Willard Jennings CROFT. Denis CROFT, Appellant (Contestant), v. Gordon W. TAYLOR, Sr., Personal Representative and Executor of the Estate of Willard Jennings Croft, Deceased, Appellee (Petitioner), Elizabeth J. Hall and Debra L. Young, (Contestees). |
| Court | Wyoming Supreme Court |
Clay R. Jenkins and Bruce P. Badley of Badley & Rasmussen, P.C., Sheridan, for appellant.
I. Vincent Case, Jr., Douglas, for appellee.
Frank R. Chapman, Casper, for contestee Elizabeth J. Hall.
Before THOMAS, C.J., ROONEY *, BROWN, CARDINE and URBIGKIT, JJ.
Appellee executor (hereinafter referred to as "Estate") presented for probate the last will and testament of Willard Jennings Croft, deceased (hereinafter referred to as "Croft"), together with the first and second codicils thereto. Appellant, Croft's only child, contested the validity of the second codicil. The will was dated October 26, 1981. It consisted of nine articles, and it designated appellant as executor and as residuary beneficiary. The first codicil was dated March 29, 1982, and only changed the executor from appellant to a friend, Gordon W. Taylor, Sr. The second codicil was dated September 16, 1983. It recited in part:
"I amend my Last Will and Testament of April 16, 1982, by adding thereto Article No. X, which reads as follows: * * * "
It then devised a cabin and land (by legal description) in Teton County "to my friend, Elizabeth 'Betsy' Jane Hall."
Appellant contends the second codicil was void inasmuch as it referred to a will dated April 16, 1982, which will was not presented for probate. 1 Its existence was not indicated other than by the reference to it in the codicil. Both parties moved for a summary judgment, and appellant appeals from the denial of his motion and the granting of the motion of the Estate.
We affirm.
By its very designation as a "will," a last will and testament is an expression that its existence is to express and accomplish the intent of the testator--to do that which he "wills" to be done with his estate. In Dainton v. Watson, Wyo., 658 P.2d 79, 81 (1983), we said:
" (Emphasis added.)
"The sole purpose of the court in construing a will is to ascertain the actual intention of the testator as the same appears from a full and complete consideration of the entire will when read in the light of the surrounding circumstances.
* * * " 4 Bowe-Parker: Page on Wills, § 30.6 (1961).
and Section 2-1-301(a), W.S.1977 (July 1980 Replacement), provides in part:
In this case, we must ascertain Croft's intent as expressed in the second codicil. The obvious primary intent expressed therein is to direct the setting over of specifically described real property to a friend, Elizabeth "Betsy" Jane Hall. This intent is plainly and unambiguously set forth. A will of Croft dated October 26, 1981, had been submitted for probate. It contained nine articles. The second codicil directed the addition of "Article No. X" to the testator's last will and testament. There was a first codicil to the October 26, 1981, will. The codicil with which we are here concerned was designated a second codicil. If the words "of April 16, 1982" were not in the second codicil, there could be no question about the fact that the second codicil was to the October 26, 1981, will, and the probate would proceed accordingly with full deference to the testator's intent.
But the words "of April 16, 1982" were in the second codicil. A will of April 16, 1982, was not produced. The probate court could properly conclude that the codicil was not clear and not unambiguous with reference to that which it amended. Its meaning was obscure in this respect, there being present the potential for one of two meanings. The intent of the testator could not be given effect from that said in the second codicil. An instrument is ambiguous " 'which is obscure in its meaning, because of indefiniteness of expression, or because a double meaning is present.' " Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463, 465 (1980), quoting from Bulis v. Wells, Wyo., 565 P.2d 487, 490 (1977). To fulfill its obligation to liberally construe and apply the Wyoming Probate Code so as to promote the purpose and policy thereof through discovering and making effective the intent of Croft ( § 2-1-102(a)(ii)), the probate court properly received extrinsic evidence relative to such intent. Taggart v. United States, 306 F.Supp. 430 (D.C.Wyo.1969), aff'd 430 F.2d 1388 (10th Cir.1970); Spencer v. Gutierrez, 99 N.M. 712, 663 P.2d 371, cert. denied 99 N.M. 644, 662 P.2d 645 (1983); White v. Conference Claimants Endowment Commission of the Idaho Annual Conference of the Methodist Church, 81 Idaho 17, 336 P.2d 674 (1959).
Affidavits were received in connection with the motion for summary judgment for this purpose. Mark R. Stewart, attorney at law, Glenrock, prepared the will, the first codicil, and the second codicil. In his affidavit, he said that he had not prepared a will for Croft dated April 16, 1982, and that the April 16, 1982, date in the codicil "is the result of inadvertance [sic] and is in error." He explained that he maintains a form file in his office, and "[a]fter learning of the error in Mr. Croft's Second Codicil to his Last Will and Testament, I examined the form file for Codicils to Last Will and Testaments, and discovered the form in that file bearing the date of April 16, 1982. * * * "
Mr. Stewart's affidavit points out that the October 26, 1981, will had nine articles, and that the codicil reflected the amendment to add "Article No. X."
Appellant contends that these affidavits were hearsay and conclusionary and, therefore, not proper for consideration in connection with a motion for summary judgment. The recitations in the affidavits, however, were concerning that which Mr. Stewart and Ms. Webb had personal knowledge. They knew which instruments were prepared by them for, and executed by, Croft; that there was a form file in the office containing a codicil form with the date April 16, 1982, as the date of the will being amended; and that a will dated April 16, 1982, was not prepared by Mr. Stewart. Ms. Webb had personal knowledge that she typed April 16, 1982, on the codicil instead of the correct date of October 26, 1981. Such are not statements made by someone else which are now being repeated to prove the truth of such statements. 3
The extrinsic evidence was substantial that the date "April 16,...
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