Hartt's Estate, In re
| Decision Date | 10 April 1956 |
| Docket Number | 2685,Nos. 2684,s. 2684 |
| Citation | 75 Wyo. 305,295 P.2d 985 |
| Parties | In the Matter of the ESTATE of John K. HARTT, Deceased. Clarenee A. BRIMMER and Robert Bible, Executors of the Estate of John K. Hartt, Deceased, Clarence A. Brimmer and Robert Bible, as designated Trustees under the Last Will and Testament of John K. Hartt, Deceased, and Marjorie Higley, Appellants, v. Pearl HARTT, Pearl Holmquist, Marie Harrison, Frances Louise Mitchell, Catherine Keffeler, and Dorothy Okey, Respondents. Pearl HARTT, Plaintiff and Respondent, v. Clarence A. BRIMMER and Robert Bible, Executors of the Estate of John K. Hartt, Deceased, Clarence A. Brimmer and Robert Bible, as designated Trustees under the Last Will and Testament of John K. Hartt, Deceased, Defendants and Appellants, Pearl Holmquist, Marie Harrison, Frances Louise Mitchell, Catherine Keffeler, and Dorothy Okey, Defendants and Respondents, and Marjorie Higley, Defendant and Appellant. |
| Court | Wyoming Supreme Court |
Clarence A. Brimmer, Jr., Rawlins, Lathrop & Lathrop and Carleton A. Lathrop, Cheyenne, for appellants Brimmer and Bible in each case.
Smith & Nicholas and W. A. Smith, Lander, for appellant Higley in each case.
Pence & Millett, Laramie, Johnson and Miles, Rawlins, Senior & Senior, Salt Lake City, Utah, Alfred M. Pence and George J. Millett, Laramie, for respondents in each case.
John K. Hartt of about 78 years of age, hereinafter named generally as the testator, made his last will and testament on March 14, 1951. We shall set out only the essential parts involved in this case. In paragraph 3 he provided:
'I give, devise and bequeath all of my property, real, personal and mixed, whereof I may die seized or possessed, wheresoever situate and of whatsoever kind, after the payment of all of my just debts, expenses of administration and the family allowance, as follows, to-wit:'
He then devised certain real estate consisting of the home in Rawlins and an adjoining tract of land to his wife, Pearl Hartt of about the age of 72 or more, and he devised other real estate to his six daughters, namely, Pearl Holmquist, Marie Harrison, Marjorie Higley, Frances Louise Mitchell, Catherine Keffeler, and Dorothy Hartt.
In paragraph 4 of his will, he provided:
'All of the rest, residue and remainder of my estate, being all of the balance of my said estate, to Clarence A. Brimmer and Robert Bible, all of the City of Rawlins, County of Carbon, State of Wyoming, to have and to hold the same, they, their heirs and assigns, in trust--nevertheless, for the uses and purposes, with the powers and in the manner hereinafter mentioned, namely, two-wit:
'(a) I hereby authorize, empower and direct the said trustees above named, and their survivors and successors, to adjust and settle all accounts and transactions relating to my business or investments; to leave my said estate, real, personal and mixed, invested as it then is at the time of my decease, or, should they deem it for the best interests of my estate, to lease, mortgage, sell or dispose of any or all of said estate, real, personal or mixed, whatsoever or wheresoever, either by public or private sale, for the best prices that can be obtained for the same, and by proper deed or deeds, mortgage or mortgages, conveyances or assurances in the law, to be duly executed, acknowledged and perfected by them, to grant, convey and assure the same to the purchaser or purchasers thereof; to invest the proceeds thereof in stocks or bonds or put the same out on interest at good security, or invest in such other manner as they may deem best, and they shall not be liable for any shrinkage in value by reason of the exercise of the discretion thereby reposed in them.
'(b) I do further authorize, empower and direct the said trustees and their survivors and successors to appropriate the net annual income of my said trust estate to the support of my wife during her lifetime; said monies to be appropriated for that purpose from time to time at regular intervals;
'(c) And I do further authorize, empower and direct the said trustees above named, and the survivors and successors of the said trustees, in case they shall deem it expedient and necessary, to appropriate the whole or any part of the principal of my said estate, real, personal or mixed, to the maintenance and support of my said wife.'
He further provided that upon the death of his wife, if she should survive him, the income from the estate then remaining should be paid over to his six daughters in equal shares and that the principal of the estate then remaining should be paid over to these six daughters after the expiration of eight years. In paragraph 8 of his will, Mr. Hartt provided as follows:
Robert Bible, named as one of the executors in the will above mentioned, has been admitted to practice law in this state but in the main he is a banker and president of the First National Bank at Rawlins, Wyoming. Clarence A. Brimmer is an attorney at law, having practiced for approximately forth years. The pleadings and testimony in this case show: 'That for many years prior to the death of John K. Hartt, Clarence A. Brimmer as his attorney and Robert Bible as his financial adviser, consulted with and advised the testator in practically all of his legal and financial problems and assisted him in the determination of policy and management of the Cow Creek and Pioneer Sheep Companies as well as other interests of the decedent and devoted all the time necessary for such purpose.' It is further shown by the testimony that both Bible and Brimmer had large experience in connection with livestock companies. The personal property left by the deceased was valued at more than $800,000 and consisted mainly of the controlling stock in three sheep companies, namely, Yellowstone Sheep Company, Cow Creek Sheep Company and Pioneer Sheep Company.
John K. Hartt died on July 14, 1952. His funeral was held on July 16, 1952, after which a meeting was held at the home of the testator and his widow, Pearl Hartt. There were present at that time the widow and five of the daughters of the testator as well as Robert Bible and Clarence A. Brimmer. The will of the testator was read and Robert Bible gave a synopsis of the property which was left by the testator. The will was duly admitted to probate in the district court of Carbon county, Wyoming, on August 14, 1952, and Bible and Brimmer were duly appointed as executors. All of the beneficiaries of the will were apparently satisfied with the will of the testator for approximately a year. But in the fall of 1953 after consultation with counsel, Pearl Hartt commenced an action in equity to permit her to dissent from the will of testator, although at that time the statutory period permitting her to dissent had expired. Mrs. Hartt and five of her daughters also commenced an action to remove the executors appointed in the will. Mrs. Hartt also set out another cause of action in which she claimed she was entitled to her statutory share of the estate, that is to say one-half thereof as well as that provided in the will. These causes of action were consolidated by the court for trial and we shall consider them together in the order named. All these causes or proceedings have been argued in great detail and extensively by counsel on both sides. We have for instance before us one of the briefs in connection with two of these cases on the part of counsel for Mrs. Hartt and her daughters consisting of 300 closely printed pages and citing us to approximately 300 authorities. In view of the minute and extensive briefs in the case, we feel compelled, much against our will, to make our opinion in these cases somewhat exhaustive, following the footsteps of counsel in these cases. We must apologize for the length of the opinion but the questions involved are new and important.
The action in equity heretofore mentioned to permit the widow to dissent from the will was brought by Pearl Hartt, widow of testator, on November 4, 1953. She alleged in substance that she did not know of her right to elect to take against the will of the deceased; that she did not know the extent and value of the estate; that she was ignorant of the impact of Federal taxes on the estate; that she was not advised of her rights by the executors of the estate in whom the testator and plaintiff had reposed trust and confidence, nor was she advised of her rights by any one else. All of the daughters of testator and Pearl Hartt, except Marjorie Higley, filed their answer admitting the allegations of the petition, and consented to the court granting the relief prayed. Marjorie Higley, a daughter, and the executors answered and in substance denied the right of the widow to dissent from the will after the expiration of the time fixed by statute. For convenience, Pearl Hartt and the daughters joining her in her petition will frequently be referred to as respondents.
The court, by decree dated July 16, 1954, granted the widow the right to elect to take against the will, which she did on July 20, 1954. From the decree Marjorie Higley and the executors have appealed.
The statute, § 6-301, W.C.S.1945, so far as applicable here, reads as follows:
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