Hanna v. Palmer

• Decision Date: 01 April 1882
• Citation: 6 Colo. 156
• Parties: HANNA v. PALMER.
• Court: Colorado Supreme Court

6 Colo. 156

HANNA v. PALMER.

Supreme Court of Colorado

April, 1882

Error to County Court of Arapahoe County.

THE bill of exceptions in this case sets forth the petition of Margaret Palmer, the defendant in error, substantially to the effect 'that she had heretofore renounced under the will of her deceased husband, and elected to take, under the statute, one-half the real and personal estate of the deceased, and that she asks the court now to make an order to divide the personal estate of the deceased, and to direct the plaintiff in error, administrator with the will annexed of said deceased, to pay over in cash to the petitioner (defendant in error) one-half of said personal estate; and further requests the court to so modify the order heretofore made, to wit, on the 17th day of February A. D. 1880, authorizing the said John R. Hanna to sell two hundred shares of stock in the City National Bank of Denver so as not to authorize him to sell petitioner's portion thereof, that is, one hundred shares, but to direct him to turn the same over to petitioner.

'Avers that there are no debts owing by said estate requiring the sale of her portion of said estate, but if so, she stands ready to pay over her one-half thereof.

'The order of February 17th, referred to in the petition, is in substance that on the petition of said administrator requesting an order directing him to sell two hundred shares of the capital stock of the City National Bank of Denver, and upon his showing, to the court's satisfaction, that it will be necessary so to do, in order to pay the debts allowed against the estate, as well as the legacies in the will of the decedent mentioned, it was therefore ordered that he be allowed to sell the same at private sale for the best price obtainable, and report to the court. The bill of exceptions further states that the administrator (plaintiff in error) appeared by counsel and resisted the granting of the order sought by the aforesaid petition of the defendant in error and on the hearing it appeared, and the court so found, that the deceased, Frank Palmer, died testate, leaving a will by which, after providing for the payment of debts, etc., he bequeathed to his widow (the defendant in error) property to the amount of $32,500; made also bequests of specific legacies to several parties, amounting in the aggregate to about $10,000, and the balance of his estate he bequeathed to his brothers, Chester W. and Joseph Palmer, and that the estate was inventoried at $80,000.

'Further that the widow had renounced under the will and elected to take under the statute; that the estate was not fully administered; that beside the legacies, there remained unpaid debts to the amount of about $5,000 already allowed; that there was a claim of about $8,000 preferred by the widow (defendant in error), disallowed in the county court, but still pending and undetermined in the supreme court, with probable expenses of administration amounting to about $1,000, and that these debts could not be paid without a sale of part of this property.

'It further appeared that, after turning over half the stock, as prayed for in the petition, the other half of the personal estate would be sufficient to pay the debts allowed and the expenses of administration, and that if the widow (defendant in error) was allowed one-half of the whole estate, real and personal, of the deceased, without charging any portion of the debts or expenses against her half, and all the debts, legacies and expenses were paid out of the other half of the real and personal estate of the deceased, such half would be entirely adequate therefor.

'It further appeared that the said residuary legatees were residents of the state of New York, and were not before the court in this proceeding. On this state of facts, the petitioner (defendant in error) claimed that she took half of the entire estate of the deceased under the statute, free and clear of all debts and claims against said estate and expenses of administration, and that all claims allowed, or to be allowed, against the estate, and all expenses of administration, should be borne by and paid out of the other half of the estate, and consequently she was entitled to have half of this stock turned over to her.

'The administrator contended that the widow could only be entitled to half the estate after payments of debts, etc., and as this personalty would be required to pay claims, debts, etc., no order to turn over to the widow should be made; also, that the residuary legatees, being vitally interested in this order asked for, the same should in no event be made, except in a proceeding to which they ...