Foster v. Kragh

• Decision Date: 07 April 1941
• Docket Number: 14923.
• Citation: 107 Colo. 389,113 P.2d 666
• Parties: FOSTER v. KRAGH.
• Court: Colorado Supreme Court

113 P.2d 666

107 Colo. 389

FOSTER v. KRAGH.

No. 14923.

Supreme Court of Colorado, En Banc.

April 7, 1941

Rehearing Denied May 26, 1941.

Error to District Court, Weld County; Frederic W. Clark, Judge.

Proceeding in the matter of the estate of Iver N. Kragh, also known as I. N. Kragh, deceased, wherein Niels Kragh offered purported last will of deceased for ancillary probate, which was opposed by Clay Foster, as administrator in the matter of the estate of Kate M. Kragh, deceased. To review a judgment of district court, confirming order of the county court admitting the will to probate, the objector brings error.

Reversed and remanded with directions.

KNOUS J., and FRANCIS E. BOUCK, C.J., dissenting.

Herbert E. Mann, of Greeley, for plaintiff in error.

Clay R Apple, of Greeley, for defendant in error.

OTTO BOCK, Justice.

This controversy related to the right of an interested party to contest, or preliminarily object to a petition for the admission of a foreign will to probate in this state.

Plaintiff in error, to whom we hereinafter refer as objector, as administrator of the estate of Kate M. Kragh, a devisee under the will in question, prior to its admission to probate, and as such administrator, filed objections to its probation in the county court of Weld county, Colorado. These objections were overruled, and the will was duly admitted to probate. Thereafter objector appealed from the order and judgment of the county court to the district court. There defendant in error, Niels Kragh, hereinafter designated as proponent, filed a motion to strike the objections, which motion was treated by the trial court as a general demurrer was sustained, and the order and judgment of the county court affirmed. Objector is here by writ of error to reverse this judgment. We have decided to dispose of the matter on objector's application for supersedeas.

The facts, for our purposes here assumed to be true, appearing from the written objections, so far as necessary to a determination of the questions presented, are as follows:

November 7, 1936, the last will and testament of Iver N. Kragh was executed in California, in which provision was made for the support and maintenance of his wife, Kate M. Kragh, with the remainder over to proponent, Niels Kragh and Christian Kragh. It appears that July 8, 1937, a petition was filed in the county court of Weld county which disclosed that Kate M Kragh had been committed to an insane asylum in California April 20, 1937, on the application and affidavit of Christian Kragh, and that he participated in said proceeding. Pursuant to this petition said county court appointed objector conservator of the estate of Mrs. Kragh. Upon proper court authorization, objector brought a suit in the district court of Weld county, numbered 9600, wherein certain assignments and conveyances of said Kate M. Kragh to her husband, Iver N. Kragh, were sought to be set aside. In this case Christian Kragh appeared as a party defendant, and Niels Kragh subsequently became an intervener. After judgment was entered in this proceeding against objector, he sued out a writ of error in this court, and June 3, 1940, we reversed that judgment. Foster v. Kragh, 106 Colo. 249, 103 P.2d 480, 484. In our opinion we there said: 'The failure to probate it [Iver N. Kragh will] and make the trust effective in its purpose to support Kate Kragh during her lifetime, would be a failure of consideration, * * *.' In case No. 9600 the trial court, and subsequently this court, determined that certain assignments and deeds from Kate Kragh to her husband, Iver N. Kragh, were predicated upon an agreement, the consideration of which was that the will should provide for her support and maintenance during her lifetime. In reversing the judgment as above noted, we remanded, the cuase for further proceedings not inconsistent with our decision. Subsequently thereto, and after the filing of an intervention petition by Niels Kragh, the district court of Weld county in said case, September 19, 1940, found 'that said Iver N. Kragh died on March 6, 1937, leaving surviving him his widow, Kate Kragh, who departed this life at Stockton, California on August 2, 1939, and that said purported Last Will and Testament was offered for probate in the Superior Court of Fresno, California on September 22, 1939. * * * That such failure to probate said purported Last Will and Testament during the Kate Kragh's lifetime constituted a failure of consideration in its purpose of support her during her lifetime.' The legal effect of the holding of the trial court was, 'that said purported Last Will and Testament of Iver N. Kragh, deceased, was wholly invalid and ineffectual as a basis of claim of ownership by claimants thereunder in so far as same affects property derived from or through said Kate M. Kragh, deceased, and that as to said property, her estate was and is entitled thereto.'

After the death of Kate M. Kragh, August 2, 1939, objector was permitted to appear in case No. 9600 as administrator of her estate, in substitution for his former relationship as conservator. Following the death of Iver N. Kragh, March 6, 1937, Christian Kragh retained possession of his father's will and did not offer it for probate during the lifetime of Kate M. Kragh, nor until September 22, 1937, some fifty days after her death. No notice of this probate proceeding was given to objector.

It is further alleged in the objections that Christian Kragh 'deliberately withheld said Last Will and Testament from probate and failed to notify her said personal representative thereof, with the result no opportunity has heretofore been afforded said personal representative to appear and protect the interests of her estate thereunder'; that the entire estate of said Iver N. Kragh consists of property derived from Kate M. Kragh, all located within the state of Colorado; that the offering of the will for probate in California was for the purpose of concealing the probate thereof from the heirs at law and personal representatives of said Kate M. Kragh, deceased, and for the purpose of fraudulently disposing of the real estate located in Colorado theretofore conveyed by Kate M. Kragh to Iver N. Kragh in consideration of the agreement made by Iver N. Kragh and Christian Kragh to use said property for the care and support of Kate M. Kragh during her lifetime.

After the trial court in case No. 9600 entered its judgment in favor of objector, September 19, 1940, proponent, four days later, commenced the instant proceedings by filing his petition for probate of the will in question in the county court of Weld county.

One of the questions raised by the assignments of error concerns the legal right to contest a foreign will in this state. Whether such a right exists depends primarily upon our statutory laws; and no such question has heretofore been raised in this jurisdiction.

There is no provision in our statutes precluding the contest of a will executed in another state or objection to its admission to probate. The basic law in this state on probate matters is contained in chapter 181, Session Laws of 1903, page 469 (chapter 176, sections 62, 63 and 65, '35 C.S.A.), and all subsequent legislation on matters of probate relate to and spring from this act. Sections 36, 37 and 38 bear directly upon the problem Before us, section 36 being the only section amended since 1903. We will hereinafter again refer to this section. A proper interpretation of the legislative intent in passing these sections requires that they be read together. Section 37 (section 63, c. 176) begins with the following language: 'On or Before the day set for the hearing of the probate of such will * * * any person * * * desiring to contest said will, or object to the validity or legality of all or any portion of the contents thereof, shall file in the county court a caveat or objections * * *.' The words 'such will,' when read in connection with the preceding sections, particularly section 36, evidently include a foreign will. This appears to be the legislative intent. See, Dibble v. Winter, 247 Ill. 243, 93 N.E. 145. This construction also is in harmony with the spirit of our law, which, to satisfy due process, permits a hearing Before any substantial rights are jeopardized.

Counsel for proponent contends that the objections here interposed are, under the circumstances, foreclosed by section 1, article IV, of the federal Constitution, to which reference is commonly made as the full faith and credit clause. No authority is cited to sustain this contention; and a number of states expressly provide for the contest of foreign wills. Opp v. Chess, 204 Pa. 401, 54 A. 354; Woodville v. Pizzati, 119 Miss. 442, 81 So. 127; Hines v. Hines, 243 Mo. 480, 147 S.W. 774; Evansville Ice & Cold Storage Co. v. Winsor, 148 Ind. 682, 48 N.E. 592. Moreover, no foreign probate court has jurisdiction over the subject matter, real estate, located in another state. Bancroft's Probate Practice, vol. 1, § 140. To permit the contest of a foreign will in another state, where the real estate affected by the will is located, does not violate the full faith and credit clause of the federal Constitution. Selle v. Rapp, 143 Ark. 192, 220 S.W. 662, 13 A.L.R. 494.

Counsel for proponent contends that section 62, chapter 176, '35 C.S.A., as amended by chapter 271, Session Laws of 1937, page 1370, gives such an effect to a will executed in another state as...