Gaunt v. Kansas University Endowment Ass'n of Lawrence, Kan.

• Decision Date: 25 March 1963
• Docket Number: No. 3121,3121
• Citation: 379 P.2d 825
• Parties: Mame Avery GAUNT, Maurice P. Avery, Bruce W. Avery, Wilder L. Avery, and J. Glenn Sidlow, Appellants (Contestant-Plaintiffs below), v. The KANSAS UNIVERSITY ENDOWMENT ASSOCIATION OF LAWRENCE, KANSAS, A Non-profit Educational Corporation et al., Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 825

379 P.2d 825

Mame Avery GAUNT, Maurice P. Avery, Bruce W. Avery, Wilder L. Avery, and J. Glenn Sidlow, Appellants (Contestant-Plaintiffs below), v. The KANSAS UNIVERSITY ENDOWMENT ASSOCIATION OF LAWRENCE, KANSAS, A Non-profit Educational Corporation et al., Appellees (Defendants below).

No. 3121.

Supreme Court of Wyoming.

March 25, 1963.

J. Byron McHale, Greybull, for appellant.

Ernest J. Goppert, of Goppert & Fitzstephens, Cody, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Can a will admitted to probate in Wyoming be attacked in an action brought in a district court when the action is not made a part of the probate proceedings in which the will is being probated? Such is the question presented for our consideration in this case.

The will involved was admitted to probate in Big Horn County on May 5, 1961. On November 4, 1961, barely within six months, parties seeking to set aside the will filed a petition in the District Court of Big Horn County alleging the maker of the will was not of sound mind and memory at the time such will was made and praying that it be revoked.

Beneficiaries under the will, mostly charitable institutions, were named as defendants. A citation was issued requiring these defendants to show cause why the will should not be revoked. Service, however, was made by publication upon those defendants who were nonresidents of the state. The parties designated as contestant-plaintiffs claim to be cousins of the testator.

The petition was dismissed January 18, 1962, by the district court, upon the motion of defendants. The reason for dismissal was that the action had not been filed in the probate court of Big Horn County, and the contest of a will was considered strictly a probate matter. The dismissal is vital to contestants, because their right to commence a contest in the probate proceedings expired one day after the filing of their petition and prior to the court's ruling.

Section 2-83, W.S.1957, which is a part of the Wyoming probate code, provides:

'After a will has been admitted to probate, any person interested may, at any time within six months after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked.'

Proceedings for disproving or contesting a will were unknown to the common law. The right of contest is a creature of statute and a contestant has such rights and only such rights as the law gives him. 1 Bancroft, Probate Practice, § 162, p. 392 (2d Ed.). See also In re Martinez' Will, 47 N.M. 6, 132 P.2d 422, 423; In re Walters' Estate, 89 Cal.App.2d 797, 202 P.2d 89, 90; and In re Kane's Estate, 20 Wash.2d 76, 145 P.2d 893, 896.

The portion of our probate code having to do with contests was taken from California, and this jurisdiction has been inclined to follow decisions in that state on this subject. See Merrill v. District Court of Fifth Judicial Dist., 73 Wyo. 58, 272 P.2d 597, 593.

In the Merrill case the court quoted with approval from Fisher v. Superior Court in and for Ventura County, 23 Cal.App.2d 528, 73 P.2d 892, 896, to the effect that under our codes probate proceedings are entirely separate and distinct from actions either at law or in equity. The California court, in the Fisher case, concluded the filing of a separate action, even though it be within the six-month period and in the same court, is not in itself a sufficient compliance with the statutory requirements for filing a contest after probate of a will.

It is apparent in the instant case that the contestant-plaintiffs followed the exact letter of probate statutes to the extent that they filed an instrument designated 'petition' instead of 'complaint,' which ordinarily is used in connection with the commencement of a civil action. Moreover, they caused a citation to be issued instead of the usual summons. This was in keeping with § 2-84, W.S.1957, a part of the probate code. Additionally, the petition contained allegations against the validity of the will and prayed that the probate be revoked, as required in § 2-83.

Thus, the only consideration left for our determination is whether the petition was filed 'in the court in which the will was proved,' within the meaning of § 2-83. The question involved is not by any means a matter of first impression with us.

In State ex rel. State Board of Charities & Reform v. Bower, Wyo., 362 P.2d 814, 820, rehearing denied 363 P.2d 791, we had occasion to refer to the civil arm and the probate arm of the district court, saying: 'These two courts are not the same, as they function in different capacities and each possesses different powers within its separate jurisdiction.'

Rulings to the same effect have been made by this court in these cases: Slover v. Harris, 77 Wyo. 295, 314 P.2d 953, 957; Hartt v. Brimmer, 74 Wyo. 356, 287 P.2d 645, 649; Merrill v. District Court of Fifth Judicial Dist., supra, at 272 P.2d 598; Denver Joint Stock Land Bank of Denver v. Preston, 52 Wyo. 132, 70 P.2d 584, 587; and Church v. Quiner, 31 Wyo. 222, 224 P. 1073, 1074.

Looking specifically at some of the expressions contained in these cases, we point out that in the Slover case a decree admitting a will to probate was said not to be subject to collateral attack, but to stand as final if not revoked by a 'direct' proceeding or reversed on appeal. In the Hartt opinion it was reaffirmed that a court of equity cannot set aside an order admitting a will to probate since the probate of a will is a matter exclusively within the jurisdiction of the probate court.

Chief Justice Blume, writing for the court in the Merrill case, said a proceeding to revoke the probate of a will is not a civil action, but a proceeding provided for in our probate code. As...