Estate of Reed, Matter of

• Citation: 768 P.2d 566
• Decision Date: 31 January 1989
• Docket Number: No. 88-137,88-137
• Parties: In the Matter of the ESTATE OF Ross L. REED, Deceased. Sallye REED, Appellant (Plaintiff), v. Margaret D. REED, Executrix and Personal Representative of the Estate of Ross L. Reed, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 566

768 P.2d 566

In the Matter of the ESTATE OF Ross L. REED, Deceased.

Sallye REED, Appellant (Plaintiff), v. Margaret D. REED, Executrix and Personal Representative of the Estate of Ross L. Reed, Appellee (Defendant).

No. 88-137.

Supreme Court of Wyoming.

Jan. 31, 1989.

C.S. Hinckley of Hinckley and Hinckley, Basin and Roy Stoddard, Jr., Cheyenne, for appellant (plaintiff).

John J. Metzke of Hirst & Applegate, Cheyenne, for appellee (defendant).

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Justice.

This appeal is set forth by a daughter as a will contest between herself and her stepmother over her father's estate and questions the propriety of the dismissal of the daughter's contest to the Wyoming probate. The lash of their mutual ill will is well chronicled. The will, which disinherited the daughter in favor of the stepmother, was originally probated in California under The Independent Administration of Estates Act, Cal.Probate Code §§ 591-591.9 (West 1988) ¹ for a minimum estate (alleged $500). The will was then presented for admission in Wyoming as a foreign will to probate the mineral estate here valued in excess of $2 million. The trial court dismissed the daughter's amended complaint as failing to plead with particularity fraud, duress, menace, and undue influence as being both insufficient in text and too late in time to contest.

The daughter (appellant) comprehensively raised several issues. ² We condense the

issues to three dispositive bases: (1) whether the motion to dismiss was converted to a summary judgment; (2) whether the California probate is controlling over real property located in Wyoming; and (3) whether the notice given was insufficient. We reverse and remand.

FACTS

A resident of California at death, former Wyomingite Ross L. Reed died on March 29, 1984 leaving his second wife, Margaret D. Reed (appellee), as surviving spouse and Sallye Reed (appellant) as his sole surviving child from his first marriage. Ross L. Reed had amassed extensive property both in Wyoming and California with much of the California property held in joint tenancy which passed without probate. The remaining California assets of a stated value of $500 were transferred to appellee when the will was offered for California probate, to which appellant did not appear nor contest. Appellee, as personal representative of the estate, then offered the will as a foreign probated will in this jurisdiction under W.S. 2-11-101 through 2-11-303 to administer the extensive Wyoming mineral interests. The District Court of Uinta County, Wyoming admitted the will on October

4, 1985. Therefore, a notice was published in the Uinta County Herald. The notice, will, and Wyoming order admitting the will to probate were contendably mailed, not to appellant, but to a California attorney who had some years before represented appellant. No direct mailing to the heir is alleged or admitted. Eighteen months later, on April 21, 1987, appellee's Wyoming law firm was advised that appellant had not received notice of the Wyoming proceedings. This will contest was instituted on June 8, 1987 and it is from dismissal that this appeal ensued.

MOTION TO DISMISS

Although originally undertaken as motions to dismiss under W.R.C.P. 12(b)(1), (4), (5), and (6) for lack of subject matter jurisdiction; insufficient process; insufficient service of process; and failure to state a claim upon which relief could be granted, this matter was converted to a summary judgment character under W.R.C.P. 56 for our review by the district court's consideration of matters outside the pleadings such as affidavits and memoranda. See W.R.C.P. 12(b); Torrey v. Twiford, 713 P.2d 1160 (Wyo.1986); Kirby Bldg. Systems, Inc. v. Independence Partnership No. One, 634 P.2d 342 (Wyo.1981); and Wyoming Ins. Dept. v. Sierra Life Ins. Co., 599 P.2d 1360 (Wyo.1979). An extended recitation of summary judgment analysis will not be pursued, but at its foundation is the principle that a summary judgment should be granted only when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Also, the record is examined in the light most favorable to the party against whom the motion was sought. See Matter of Estate of Newell, 765 P.2d 1353 (Wyo.1988); Frieden Construction, Inc. v. Lower & Company, 766 P.2d 527 (Wyo.1988); Matter of Estate of Obra, 749 P.2d 272 (Wyo.1988); and Cordova v. Gosar, 719 P.2d 625 (Wyo.1986). Thus, this case will be reviewed as a summary judgment decision with all favorable inferences favoring appellant in evidentiary analysis.

SITUS OF PROPERTY

Appellee contends that the California probate is conclusive as to the validity and effect of the will for the ancillary administration ³ of the Wyoming mineral estate. We disagree. Wyoming has been faced with this conflict of laws dilemma previously and held for many years that the lex loci rei sitae controls as to real property within this state. Justice Blume exhaustively examined this subject in In Re Ray's Estate, 74 Wyo. 317, 287 P.2d 629, 633-34 (1955) (quoting Annotation, Decree of Court of Domicil Respecting Validity or Construction of Will, or Admitting it or Denying its Admission to Probate, as Conclusive as Regards Real Estate in Another State Devised by Will, 131 A.L.R. 1023, 1026 (1941)) and summarized the situation:

"Subject to statutory provisions to the contrary, express or by construction, and a few cases to the contrary, some of which are explainable on statutory grounds, it may be stated generally that the great weight of authority favors the rule that a judgment or decree of a court of a decedent's domicil passing (expressly or by implication from admission to probate) upon the validity or construction of his will, devising real property in another state, is not conclusive as to that question, so far as it concerns such real property, in the courts of the other state, either upon parties or nonparties to the proceeding in which the judgment in the former state is rendered, whether considered under the full faith and credit provision or the doctrine of res judicata or estoppel by judgment or upon general grounds as to conclusiveness of judgments."

Consequently, for over forty-five years it has been "settled law that the devolution of real property in this state and the effect of the decedent's will must be determined by the laws of this state." In Re Ray's Estate, 287 P.2d at 635. See also Rivermeadows, Inc. v. Zwaanshoek Holding and Financiering, B.V., 761 P.2d 662, 667 (Wyo.1988); Matter of Miller's Estate, 541 P.2d 28, 33-34 (Wyo.1975); In Re Estate of Gibbs, 73 Wyo. 425, 280 P.2d 556, 559-60 (1955); and In Re Smith's Estate, 55 Wyo. 181, 97 P.2d 677 (1940). Justice Brown, dissenting in Matter of Estate of Harrington, 648 P.2d 556, 575 (Wyo.1982), concisely explained that "[t]he rule exists because it is particularly important that there be certainty, predictability and uniformity of result and ease in the determination and application of the law to be applied concerning transactions of land." An ascertainment of Wyoming law reveals that clearly through common law, Wyoming has adopted the lex loci rei sitae principle. Although not considered by either party in brief, that universal rule has been statutorily addressed by W.S. 2-6-104 ⁴ which provides:

The meaning and legal effect of a disposition in a will is determined by the law of the state in which the will was executed, unless the will otherwise provides or unless the application of that law is contrary to the public policy of this state otherwise applicable to the disposition.

The Reed will was executed in California without any provision stating which law should be applied; thus, California law must be examined to determine how real property located in California devolved under a foreign probated will would be treated. Our detour through California law need only be brief because California recognizes the lex loci rei sitae controls as to real property without any statutory modification. See In Re Estrem's Estate, 16 Cal.2d 563, 107 P.2d 36, 38 (1940); In Re Reynolds' Estate, 217 Cal. 557, 20 P.2d 323, 325 (1933); In Re Bowditch's Estate, 189 Cal. 377, 208 P. 282, 283 (1922); Muth v. Educators Sec. Ins. Co., 114 Cal.App.3d 749, 170 Cal.Rptr. 849, 854 (1981); Thatcher v. City Terrace Cultural Center, 181 Cal.App.2d 433, 5 Cal.Rptr. 396, 407 (1960); In Re Brace's Estate, 180 Cal.App.2d 797, 4 Cal.Rptr. 683, 686 (1960); and In Re Estate of Patmore, 141 Cal.App.2d 416, 296 P.2d 863, 865 (1956). Consequently, with California law and Wyoming law substantially the same--the law of the situs of the real property controls--it is not necessary to pursue a further analysis of W.S. 2-6-104 nor determine if the public policy of Wyoming would be violated. Douglas v.

Newell, 719 P.2d 971, 981 (Wyo.1986); Matter of Estate of Campbell, 673 P.2d 645, 647 n. 3 (Wyo.1983). See Lipe v. Lipe, 728 P.2d 1124 (Wyo.1986) for consideration of foreign jurisdiction interpretation of its own law. Historically, California was the source of much of the early Wyoming statutory law on probate as 1890 Wyo.Sess.Laws ch. 70. See Rice v. Tilton, 14 Wyo. 101, 82 P. 577 (1905).

NOTICE

With determination that Wyoming law governs as to real estate, analysis is directed to the notice compliance for this probate under the Wyoming statutes. ⁵ At the basis of the contest action and implicit in the district court's dismissal was the conclusion that the Wyoming notice published in the newspaper was sufficient to meet W.S. 2-7-201 ⁶. The propriety of any contest hinges on the validity of the notice which starts the three months limitation time for will contest. The sufficiency of the published notice is also dispositive as to any contended mailed notice under W.S. 2-7-205(a) ⁷ because any notice allegedly sent to appellant was the same as the published notice. The published notice stated:

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