Estate of Hunt, Matter of

• Decision Date: 05 November 1992
• Docket Number: No. 890469,890469
• Citation: 842 P.2d 872
• Parties: In the Matter of the ESTATE OF Reed Dwane HUNT, Deceased.
• Court: Utah Supreme Court

Page 872

842 P.2d 872

In the Matter of the ESTATE OF Reed Dwane HUNT, Deceased.

No. 890469.

Supreme Court of Utah.

Nov. 5, 1992.

Keith F. Oehler, Cedar City, for the Estate and Richard L. Hunt.

Lyle R. Drake, St. George, for Dawna B. Bool, Charlene Brown, Jefferson D. Goulette.

HOWE, Associate Chief Justice:

This is an appeal from an order construing the last will and testament of Reed Dwane Hunt, deceased, and determining his heirs. The trial court concluded that the will failed to dispose of any assets of the deceased and directed that his assets be distributed to his heirs as determined by the intestate succession statutes.

Reed Dwane Hunt died on December 3, 1988, without a surviving wife, children, or parents. He had four stepchildren whom he had not adopted. His nearest heirs are two nieces, Dawna W. Bool and Charlene Brown, and a nephew, Jefferson D. Goulette, appellees herein. One day before his death, the deceased executed a preprinted will form on which he had inserted three typewritten paragraphs.

In the first paragraph, the deceased declared that he was of sound mind and was acting free of any duress and that he revoked all prior wills. The second and third paragraphs of the will provided:

Second: I declare that I am a single man, and that I have four (4) stepchildren. Richard L. Hunt, Delbert Douglas Hunt, Denice Marie Buckley, and Dennis Ray Hunt. If, at any time, any person shall be established by a Court of Law to be a child of mine, then I give and bequeath to each such person the sum of Five Dollars ($5.00) and no more.

Third: I have intentionally and with full knowledge omitted to provide for any and all of my heirs and next of kin who are not specifically mentioned herein, and I hereby generally and specifically disinherit each, any and all persons whomsoever claiming to be or who may be lawfully determined to be my heirs at law, except as otherwise mentioned in this Will; and to any person or persons who shall successfully establish in a Court of competent jurisdiction, that he or she is entitled to any portion of my estate, other than as mentioned in this Will, I hereby give and bequeath to such person or persons the sum of ONE DOLLAR ($1.00) and no more, in lieu of any other share or interest in my estate.

The trial court admitted the will to probate and appointed Richard L. Hunt personal representative of the estate. However, the court held that the will did not dispose of the deceased's assets and that the assets must therefore pass according to the laws of intestate succession to his heirs, the appellees. Hunt filed this appeal, designating himself on the notice of appeal as "Richard L. Hunt, personal representative of the estate of Reed Dwane Hunt." One month later, he resigned that position, and by stipulation of the parties, W. Kent Corry was appointed successor personal representative.

At the outset, we must rule on a motion filed by appellees to dismiss the appeal because Corry, as successor personal representative, has not moved to substitute himself as appellant in this appeal. Instead, Hunt continues to pursue the appeal. We deny the motion to dismiss. When Hunt filed the notice of appeal, he was the personal representative. He later resigned that position. Hunt, as an individual, has standing to pursue the appeal because he claims to be a beneficiary under the will. There is no reason why an appellant cannot move from a representative capacity to an individual capacity without filing a new notice of appeal. Hunt wrote his brief and presented his argument to this court on the basis that he was pursuing this appeal as an individual. We should simply disregard as surplusage the designation on his notice of appeal that he is the personal representative, since he no longer holds that position. Rule 61 of the Utah Rules of Civil Procedure requires us to "disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." This is a classic case for reliance on that rule. ¹ Utah R.Civ.P. 61.

Turning now to the merits of the appeal, we observe that the will does not expressly bequeath or devise any property to anyone. Hunt contends that the intent of the deceased to leave his entire estate to his four stepchildren named in paragraph two may be determined by implication. While paragraph two does name and identify the stepchildren, it is completely devoid of any language making them beneficiaries of the estate. The paragraph falls short of expressing any intent on the part of the testator to leave them anything. The second sentence of paragraph two does not manifest any dispositive intent but simply disinherits any person who might claim to be a child of the deceased. Paragraph three recites that the testator has intentionally omitted any provision for "any and all of my heirs and next of kin who are not specifically mentioned herein." Again, this paragraph is not helpful in ascertaining the testator's intent since the stepchildren named in the second paragraph are neither heirs nor next of kin. After analyzing these two paragraphs, we conclude that the will is incomplete and fails to reveal the testator's intent as to the disposition of his estate.

We have in at least two prior cases struggled with interpreting a will where a testator failed to indicate a dispositive intent. First, in In re Beal's Estate, 117 Utah 189, 214 P.2d 525 (1950), the testator devised and bequeathed to his wife, if she survived him, all of his estate except his professional library. In a separate paragraph, he provided that in the event he and his wife perished in a common disaster, his estate should go to his and his wife's brothers and sisters of the full blood. However, his wife did not survive him, and they did not die in a common disaster. He simply outlived her by fourteen months. This court affirmed a trial court judgment that distributed the estate in accordance with our statutes of intestate succession. In that case, as in the instant case, the appellants relied upon two rules of construction as the basis for seeking reversal of the trial court's judgment: that we construe a will according to the intention of the testator and that of two modes of interpreting a will, that mode is preferred which prevents intestacy. This court held, however, that even after applying those rules of construction, the void in the will could not be overcome. We stated:

In the instant case, the express language of the will covers only two of three possible fact situations respecting the time of the testator's death in relation to the time of his wife's death. Had the testator's wife survived him or had she perished with him in a common disaster, the testator's intent as to the disposition of the estate is clear. But the testator's intention in the advent of the death of his wife prior to his demise is not expressly made known nor can it fairly be implied from a language of the will. The rule of construction that the intent of the testator must be carried out does not authorize courts to make a new will to conform to what they think the testator intended, but the intent of the testator must be ascertained from the will as it stands. In re Estate of Sowash, 62 Cal.App. 512, 516, 217 P. 123. Nor does the rule that testacy rather than intestacy is preferred relieve courts from the obligation to construe the language of the will according to the legal effect of the words used. In re Searl's Estate, 29 Wash.2d 230, 186 P.2d 913, 173 A.L.R. 1247. There is absolutely nothing in the will that can justify the appellants' contention that the testator intended the estate to be distributed to his and his wife's heirs of the full blood in the event that she predeceased him. Ingenious conjecture would have to be indulged in if we were to hold with the appellants. The will is silent upon the possibility of the wife predeceasing the testator.

117 Utah at 193, 214 P.2d at 527. We further noted in that case that in ascertaining the intent of the testator, we were limited to what he had written. As a result, we rejected the appellants' invitation to find by implication what we thought would have been the testator's desire had he expressed it in the will.

In the second case, In re Estate of Lewis, 738 P.2d 617 (Utah 1987), the testator executed a holographic will which provided in part: "The first request in this last will and testament is in behalf of my wife Rhoda. Insure for her comfort, security and her fair portion. There are more than ample funds, chattels and tangibles to provide this." Id. at 618. The trial court found this provision to be inadequate to give his wife any entitlement under the will. On appeal to this court, she relied upon a number of rules of construction, including the preference against intestacy. We affirmed the trial court, however, stating that when the testator's "intention can in no way be determined from the face of the will or from the surrounding facts and circumstances, the Court will not speculate as to a testator's intention." Id. at 621 (footnote omitted). We concluded that the language of the will quoted above was merely precatory in nature, stating:

This conclusion is not in conflict with the probate code. The presumption against intestacy used when construing testamentary instruments is based upon the assumption that by executing a will, the testator intended for his property to pass testate. To this end, a will first and foremost must be construed according to the intent of the testator as expressed from the words of the will and circumstances under which it was executed. In this case, testator's will merely expressed his intent that his wife be properly cared for, but did not dispose of any property or create any power of appointment.

Id. at 620 (footnote omitted).

In the...