Estate of Irvine v. Doyle

• Decision Date: 10 December 1985
• Docket Number: No. 15148,15148
• Citation: 101 Nev. 698,710 P.2d 1366
• Parties: In the Matter of the ESTATE OF Roy D. IRVINE, Deceased, and Lola Bynum (Laute), Appellants, v. Jack DOYLE, Administrator of the Estate of Roy D. Irvine, Respondent.
• Court: Nevada Supreme Court

Page 1366

710 P.2d 1366

101 Nev. 698

In the Matter of the ESTATE OF Roy D. IRVINE, Deceased, and

Lola Bynum (Laute), Appellants, v. Jack DOYLE, Administrator of the Estate of Roy D. Irvine, Respondent.

No. 15148.

Supreme Court of Nevada.

Dec. 10, 1985.

[101 Nev. 699] Smith & Maurer, Las Vegas, for appellants.

Jones, Jones, Close & Brown, Las Vegas, for respondent.

OPINION

PER CURIAM.

This is an appeal from an order of the district court denying a petition requesting the removal of an administrator and the submission of a will to probate. Following appellant Lola Bynum's presentation of evidence at the hearing in this matter, the district court orally granted respondent Jack Doyle's motion for dismissal pursuant to NRCP 41(b). Thereafter, the district court issued the order appealed from which purports to deny the petition on its merits. The district court found that Bynum failed to satisfy the provisions of NRS 136.240(3) concerning lost wills because Bynum could not prove the alleged lost will had been in actual physical existence at the time of the decedent's death. Therefore, the district court concluded that a copy of the purported will could not be probated and denied Bynum's petition. For the reasons set forth below, we reverse and remand for a new hearing.

In reviewing a district court's dismissal of an action pursuant to NRCP 41(b), the evidence and all reasonable inferences that can be drawn from it must be deemed admitted, and the evidence must be interpreted in the light most favorable to the petitioner. Roche v. Schartz, 82 Nev. 409, 419 P.2d 779 (1966); see also Stackiewicz v. Nissan Motor Co., 100 Nev. 443, 686 P.2d 925 (1984); Corn v. French, 71 Nev. 280, 289 P.2d 173 (1955). The evidence when so viewed establishes the following facts.

In 1955, Lola Bynum and the deceased, Roy Irvine, married. While married, they purchased a home in Las Vegas, Nevada. They divorced in 1960, but remained friends. On June 6, 1962, Bynum quitclaimed her entire interest in the Las Vegas property to Irvine.

On January 8, 1973, Bynum and several friends gathered at a local restaurant at Irvine's request. Irvine produced a will which he signed in the presence of these friends. Three of the friends signed the will as witnesses. Irvine gave the original and a copy of the will to Bynum. The members of the group then read and discussed the will. The will left the Las Vegas property to Bynum. The three witnesses to the will predeceased Irvine.

Bynum stored the original will in a box until August 28, 1977, when it was apparently destroyed in a house fire. On July 3, 1982, Irvine died. Because no will was found, the district court declared that Irvine had died intestate and appointed respondent Doyle, a friend of Irvine's, as administrator of the estate. Bynum later found the copy of the will in an old briefcase. She then commenced this action by petitioning the district court to remove Doyle as administrator of the estate and to admit the copy of Irvine's will to probate.

At the hearing in this matter, Bynum attempted to establish that she had quitclaimed the Las Vegas property to Irvine with the understanding that he would leave the property to her in his will. She also attempted to establish that the deceased did in fact execute a valid will leaving the property to her, and that the document presented for probate was an accurate copy of that will. Finally, she attempted to prove that Irvine did not know that the original will had been destroyed in a fire prior to his death. However, the district court refused to allow any of this testimony to be admitted on the ground that it was irrelevant to the issue of whether the original will had been in actual physical existence at the time of Irvine's death. In the district court's opinion, the only relevant question under NRS 136.240(3) was whether the purported lost will had been in actual physical existence at the time Irvine died.

Bynum presented two witnesses whose testimony was severely limited by the district court. Consequently, Bynum elected not to call her remaining witnesses, but made an offer of proof. These witnesses included persons who had been present when the will was executed and others who had known Irvine and could testify concerning his intent to devise the Las Vegas property to Bynum. The district court refused to hear the witnesses because they could not testify as to whether the will was in actual existence at the time of Irvine's death. Thereupon, Doyle made a motion to dismiss based on NRCP 41(b), and the district court granted the motion. This appeal followed.

The question presented for review is whether NRS 136.240(3) requires a lost will to be in actual physical existence at the time of the testator's death in order to be admitted to probate. NRS 136.240(3) provides:

No will shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the death of the person whose will it is claimed to be, or be shown to have been fraudulently destroyed in the lifetime of such person, nor unless its provisions shall be clearly and distinctly proved by at least two credible witnesses. (Emphasis added.)

Doyle urges this court to interpret the word "existence" in the statute to require that a will be in actual physical existence at the time of the testator's death to be admitted to probate, as did the district court. According to Doyle, any other interpretation does violence to the English language and to the statutory scheme designed to prevent the probate of spurious wills. Some of our sister states have construed similar statutes to require actual physical existence. See In re Estate of Lane, 7 Cal.App.3d 402, 86 Cal.Rptr. 620 (Ct.App.1970) ; In re Estate of Strickman, 247 Cal.App.2d 469, 55 Cal.Rptr. 606 (Ct.App.1966); In re Kerckhof's Estate, 13 Wash.2d 469, 125 P.2d 284 (1942). Doyle further urges this court to construe "fraudulently destroyed" to require some "intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right," relying on the definition of fraud in Black's Law Dictionary 594 (rev. 5th ed. 1979). While this may be a good definition of "fraud" in some contexts, we refuse to give NRS 136.240(3) such a narrow construction.

The problem with the construction argued for by Doyle is that it has the result of creating a valid yet unenforceable document. NRS 133.110-133.150 provide the possible methods of revoking a will in Nevada. Nowhere is it provided that a will is deemed revoked if it is lost or accidentally destroyed without the testator's knowledge. Further, NRS 136.240(3) does not purport to be an additional method of revoking a will. Therefore, under the construction of NRS 136.240(3) proposed by Doyle, a lost or accidentally destroyed will, although valid, could not be enforced even if the terms of the will could be objectively proved or a valid copy of the will could be produced. A testator could die thinking his affairs in order only to have his desires frustrated by a legal technicality. Even more anomalous under Doyle's interpretation of the statute is the fact that a will which was surreptitiously destroyed could be admitted to probate if proved by other evidence, while the same will, if accidentally destroyed, could not be probated regardless of whether the testator knew of the will's destruction prior to his death. Similar considerations prompted the Colorado Supreme Court to comment:

There is no good reason a testator should be decreed to have died intestate, and his wishes, solemnly committed to writing, be defeated by the loss or destruction of what is, after all, merely the best, and not the only, evidence of his desires.

In re Eder's Estate, 94 Colo. 173, 29 P.2d 631, 634-635 (1934). To ignore a testator's desires when the testator has done all in his power to comply with the laws concerning wills would be an injustice. We do not believe the legislature intended such a result.

Other jurisdictions with statutes similar to NRS 136.240(3), moved by these policy considerations, have construed the term "existence" in their statutes to mean "legal existence." A will is said to be in legal existence if it has been validly executed and has not been revoked by the testator. Thus, a will lost or destroyed without the testator's knowledge could be probated because it was in legal existence at the testator's death. See In re Eder's Estate, 94 Colo. 173, 29 P.2d 631 (1934); In re Estate of Enz, 33 Colo.App. 24, 515 P.2d 1133 (Ct.App.1973); In re Havel's Estate, 156 Minn. 253, 194 N.W. 633 (1923); Matter of Estate of Wheadon, 579 P.2d 930 (Utah 1978). ¹

Doyle argues, however, the acceptance of the legal existence theory effectively amends the words "fraudulently destroyed" out of the lost wills statute. According to Doyle, a fraudulently destroyed will would remain unrevoked and would therefore have been "in existence" at the time of death under the legal existence theory. Thus, "fraudulently destroyed"...