Frasier v. Frasier
| Decision Date | 24 July 1964 |
| Docket Number | No. 9290,9290 |
| Citation | 87 Idaho 510,394 P.2d 294 |
| Parties | Lena C. FRASIER, one of the legatees in the Will of John W. Frasier, deceased, Plaintiff-Appellant, v. Hal D. FRASIER and John W. Frasier, Jr., Executors of the Last Will and Testament of John W. Frasier, deceased, and Elsie Grossen (sometimes called Irene Grossen), a devisee and legatee under the Last Will and Testament of John W. Frasier, Deceased, Defendants-Respondents. |
| Court | Idaho Supreme Court |
D. L. Carter, Weiser, Earl E. Reed, Nampa, for appellant.
James B. Donart, Weiser, for respondent.
Appellant, a devisee and legatee named in the will of John W. Frasier, deceased, seeks to set aside a district court order dismissing her appeal from a probate court decree of distribution in the matter of decedent's estate.
Decedent, sometimes referred to herein as Frasier, died testate in Washington County March 8, 1960. His survivors are appellant, his widow, and two sons and a daughter by a former marriage who are the respondents. Frasier's estate consisted of both separate and community property. His will was admitted to probate in the Washington County probate court April 8, 1960, and respondents Hal D. Frasier and John W. Frasier, Jr., were appointed executors.
The controversy involved in this cause, although not germane to the precise issues raised on appeal, arose by virtue of alternative testamentary clauses contained in the will regarding appellant's inheritance thereunder. The will recites that certain devises and bequests to appellant, exceeding the value of her share of the community property, are conditioned upon her waiving her interest in the community property in order that all of Frasier's separate property and all of the community property be distributed in accordance with the terms of the will; but that her refusal to accept such provision of the will would work a revocation of all the devises and bequests made to her; that in such event she would be entitled only to her interest in the community property.
June 2, 1961, respondent executors filed a petition for distribution of Frasier's estate. Appellant had not acted under the alternative testamentary provisions of the will. The petition recited the alternative testamentary provisions and the effect upon distribution of the property in the event appellant filed the waiver, or failed to file the waiver; the petition prayed that the estate be distributed accordingly.
By order entered June 2, 1961, the probate court fixed June 8, 1961, as the day for hearing the petition and directed that five days' notice thereof be given by posting a copy of the notice at the courthouse and by mailing a copy, together will a copy of the petition for distribution, to appellant at Weiser, Idaho, at least five days before June 8, 1961. See I.C. § 15-1116. Copy of notice was posted, and a copy with a copy of the petition was mailed on June 2, 1961, as required by the order, and received by appellant on June 5th.
Appellant did not execute a waiver by or on June 8, 1961. On that date, after the hearing as noticed, the probate court entered a decree of distribution decreeing to appellant only her community interest in the community property. Appellant neither appealed from that decree of distribution, I.C. § 17-204, nor sought to have it set aside, I.C. § 5-905; I.R.C.P. 60(b).
In November, 1961, it was discovered that the decree of distribution entered June 8, 1961, did not with particularity describe Frasier's separate real property distributed to respondents under the residuary clause of the will. The residuary clause did recite, however, that all of decedent's property not specifically disposed of be distributed to respondents in equal shares. For the purpose of correcting this discrepancy in the original decree and to recite with particularity the decreed ownerships of Frasier's separate property, an amended decree of distribution was entered November 24, 1961. That amended decree was identical with the original decree except for the insertion of three and one-half pages of legal description of Frasier's separate real property. There is nothing in the record to show that appellant was given notice of the proceedings held for the purpose of amending the decree of distribution.
January 20, 1962, appellant, through her attorneys, mailed to respondents' attorneys a notice of appeal from the amended decree of distribution entered November 24, 1961. The notice of appeal was addressed to 'HAL D. FRASIER AND JOHN W. FRASIER, JR., ADMINISTRATORS OF THE ESTATE OF JOHN W. FRASIER, DECEASED.' The original of the notice of appeal was filed in the probate court on January 22, 1962.
Respondents moved the district court to dismiss the appeal on three grounds: (1) that the notice of appeal was served upon respondents' attorneys and not upon respondent executors as allegedly required by I.C. § 17-204; (2) that the notice of appeal was addressed to respondent executors in their official capacity and not to respondent Elsie Grossen, respondents contending that the notice should also have been addressed to respondents individually since they are distributees under Frasier's will; and (3) that the appeal was not timely, in that, though the notice of appeal was filed within 60 days after the date of entry of the amended decree, it was not filed within 60 days after the date of entry of the original decree of distribution which, respondents contend, is the true and controlling decree.
On October 12, 1962, the district court entered its order dismissing appellant's appeal on the stated grounds that it had 'no jurisdiction to hear the appeal because of insufficiency in the matter of notice of appeal and service thereof * * *'; and that statement, according to respondents, represents the issues for determination on appeal.
The first question to be answered is whether in interpreting I.C. § 17-204, 1 service upon respondents' attorneys and not upon respondent executors was sufficient to meet the requirements of the statute. Estate of Peterson, 38 Idaho 195, 220 P. 1086 (1923), cited by respondents, as authority for the proposition that the executors themselves must be served, is not in point.
Frasier's will contains a directive to the effect that the firm of Donart and Donart be employed as legal counsel in the probate of the will. It reads:
'I hereby specifically direct my executors and each or either of them to employ the firm of Donart and Donart, Attorneys at Law, Weiser, Idaho, as their legal counsel in the probate of this my Last Will and Testament.'
Respondents also concede that notice of the appeal was served upon and accepted by their attorneys of record.
Respondents interpret I.C. § 17-204 to require that notice of appeal must be served upon decedent's personal representative and that service upon his attorney of record is not sufficient. They concede that service upon the attorneys for 'all other parties interested' would be sufficient. Appellant, on the other hand, contends that the phrase 'or upon their attorneys' applies equally to all parties involved, i. e., decedent's personal representative, and all other interested parties who appear in the proceeding desired to be reviewed.
Webster's Third New International Dictionary (1961) defines the word 'or' as follows:
'* * * used as a function word to indicate (1) an alternative between different or unlike things, states or actions * * * (2) choice between alternative things, states, or courses * * *.'
Black's Law Dictionary (4th ed. 1957) thus defines 'or':
'A disjunctive particle used to express an alternative or to give a choice of one among two or more things.'
and 67 C.J.S., Or (1950) contains the language:
'In its elementary sense, the word 'or' * * * in ordinary use and in its accurate and natural meaning, is a disjunctive particle * * *.
I.C. § 17-204, viewed in the light of the definitions of the word 'or' and its general use in the English language, requires service upon both of two classifications of parties, as named in separate clauses, or in the alternative upon another classification referred to in such section of the statute as 'their attorneys'; and when regarded in the light of the conjunctive and disjunctive particles of speech contained therein, its simple meaning is that notice of appeal must be served upon decedent's personal representative and upon other interested parties who appeared in the proceeding desired to be reviewed, or upon their attorneys. Such interpretation also conforms with the procedure required to be observed in appealing from the district court to the supreme court, I.C. § 13-202. Applicable case law also supports our conclusion in the premises. In In Re Bratcher's Estate, 76 N.D. 194, 34 N.W.2d 825, 829 (1948), the Supreme Court of North Dakota held that notices of appeal from the county court to the district court 'may not be served upon attorneys of record but in order to confer jurisdiction upon the appellate court must be served upon the parties themselves' in the absence of a statutory provision for service upon the attorney.
In In Re Ashbrook's Estate, 110 N.W.2d 184 (N.D.1961), the North Dakota court had occasion again to discuss the statutes dealing with service of process in probate proceedings and its former decision in the Bratcher case, stating:
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