Hawkey v. Williams, 2585

• Decision Date: 08 September 1953
• Docket Number: No. 2585,2585
• Citation: 261 P.2d 48,72 Wyo. 20
• Parties: HAWKEY, v. WILLIAMS et al.
• Court: Wyoming Supreme Court

Page 48

261 P.2d 48

72 Wyo. 20

HAWKEY, v. WILLIAMS et al.

No. 2585.

Supreme Court of Wyoming.

Sept. 8, 1953.

Jack Wolfe, Henry A. Burgess, Sheridan, for appellant.

Burt Griggs, Buffalo, H. Glenn Kinsley, Sheridan, for respondents.

RINER, Justice.

A direct appeal proceeding from a judgment of the District Court of Sheridan County brings this case here for review. The cause was tried by the court no jury being in attendance. The plaintiff, Ethel Hawkey, and the defendant Jennie Williams are sisters. The other defendant is also Jennie Williams but she was sued in her official capacity as executrix of the estate of Nona Williams, deceased. Nona Williams was the mother of these two girls, Ethel and Jennie, who are the only surviving children of Allen and Nona Williams. When the evidence introduced on behalf of the plaintiff was concluded, upon a motion made by the defendants immediately thereafter for an order 'dismissing plaintiff's petition at plaintiff's cost and for a judgment for the defendants both individually and as executrix of the estate of Nona Williams deceased,' the court sustained the motion and entered final judgment as requested by that motion.

The reasons advanced in support of this motion and the terms of judgment entered will be hereinafter set forth. The parties hereto will usually be referred to as designated in the District Court or by their individual names, the plaintiff below being now the appellant and the defendants the respondents here.

The plaintiff's petition summarized is substantially as follows: She alleges that on May 11, 1934, Allen Williams died leaving a will as shown in case No. 2687 of the Probate Files of the District Court aforesaid wherein all the property of said decedent was devised and bequeathed to Nona Williams, his wife, then living, but since deceased and his two daughters, Ethel and Jennie. The terms of that will are then recited verbatim. The 'Second' paragraph of that instrument reads, as pleaded (after directing payment in the 'First' paragraph thereof of all expenses of last illness, funeral, testamentary expenses and 'just debts'):

'Second: All the rest, residue and remainder of my property, whether real or personal and wherever situate, that I may have or own at the time of my death, I hereby give, devise and bequeath to my beloved wife, Nona Williams, and to my beloved daughters, Jennie Williams and Ethel Williams, share and share alike.'

This will was witnessed by Annabel Wolfe and H. Glenn Kinsley, each of these witnesses being stated as residing in Sheridan, Wyoming.

Paragraph '2' of plaintiff's petition sets forth the property of Allen Williams' estate as detailed in the inventory and appraisement in said estate file. Paragraph '3' of plaintiff's petition avers that the ranch properties so described could not be divided into three parts without material injury to the interests of the three beneficiaries above named; that it was the desire of Nona Williams, plaintiff's mother, that said properties should continue operation as one unit so long as she should live. That thereafter about May 28, 1934, Nona Williams and her agents represented and promised the plaintiff that she and her sister Jennie would share equally in all of said ranch properties upon Nona Williams' death if plaintiff would assign her one-third interest therein to her mother Nona for life. That at said time, in reliance upon said representations and promise that the plaintiff and her sister would share equally in said ranch properties and in reliance upon the implied obligation that her mother would make no will inconsistent with her said promise and representation and that she would not otherwise dispose of said property, plaintiff assigned her entire one-third interest in such property to her mother, and plaintiff thereby performed all conditions on her part to be performed under said agreement.

Paragraph '4' of plaintiff's pleading stated that there was no other consideration for the aforesaid assignment of plaintiff's one-third interest in said property to Nona Williams other than the said representations that plaintiff and Jennie would share equally in all the aforesaid properties upon Nona's decease.

Paragraph '5' of plaintiff's pleading alleges that plaintiff having become apprehensive that the oral arrangement described in paragraph '3' supra might not be carried out she obtained advice from an attorney who told her that she could have the assignment of her one-third interest set aside if there was any doubt that plaintiff would receive one-half of said ranch properties. That plaintiff was induced not to file suit for the recovery of said properties because she was assured by Nona and her authorized agents that all of said properties would ultimately be divided equally between plaintiff and Jennie and that in effect Nona had so provided in her last will; that in reliance upon these representations plaintiff did forego instituting any proceedings as advised and rested upon these assurances.

Paragraph '6' of said petition avers that Nona died March 19, 1951, leaving a will which bequeathed one dollar ($1.00) to Ethel and all Nona's real and personal estate was devised and bequeathed to Jennie, her sister.

It was alleged in paragraph '7' the inventory and appraisement on file in Nona Williams' estate consisted of certain described personal property valued at $27,645.

Paragraph '8' states that Jennie was on April 30, 1951, duly appointed executrix of Nona's said will, and ever since and now is such executrix.

Paragraph '9' alleges that prior to her death Nona conveyed the real estate mentioned in paragraph '2' hereof (excepting 649.89 acres located in Johnson County, Wyoming, known as the Eva Williams Place and which was previously conveyed to a bona fide purchaser,) to the defendant Jennie Williams. That the conveyance to Jennie was made without consideration for the purpose of defrauding plaintiff and any title the said Jennie now has in said properties should be decreed to be held in trust for the benefit of this plaintiff and subject to the agreement that Ethel and Jennie should share equally in said ranch properties.

Paragraph '10' avers that Nona and Jennie had a joint bank account in which the usual income of the ranch properties aforesaid was deposited from which Jennie received several thousand dollars upon Nona's death and for which the said Jennie should be required to account.

Paragraph '11' alleges that the Allen Williams ranch properties' total value exceeds the sum of $150,000 and that the one-third interest assigned to Nona by this plaintiff as above alleged has a present approximate market value of $50,000.

Specific performance of the agreement that Nona had with Ethel that she should have one-half of the Allen Williams ranch properties was prayed and that defendants be ordered to convey to plaintiff an undivided one-half interest in the said real estate; a one-half interest in the property appraised in Nona Williams' estate and a one-half interest in the joint bank account and that if the defendants refuse to comply with said order the decree should operate as a conveyance as provided in Section 3-3509, W.C.S.1945.

It was also prayed that in the event that the oral promise of Nona Williams could not validly be enforced the defendants be ordered to restore to plaintiff her one-third interest in the Allen Williams properties conveyed to Nona as set forth in paragraph '3' hereof or that plaintiff have judgment for $50,000.

To plaintiff's pleading as thus substantially set forth, defendants on February 8, 1952, filed their joint answer to the petition reviewed as above, wherein they admitted the allegations of that pleading set out in paragraphs numbering 1, 6, 7 and 8 and admitted also that Nona Williams and her daughter Jennie maintained a joint bank account at the date of Nona Williams' death. They denied generally and specifically all the other allegations in plaintiff's petition.

As a further defense it was alleged in defendants' answer paragraph '3' thereof that on or about May 28, 1934, the defendant Jennie and plaintiff Ethel for $1 consideration and other valuable considerations and considerations of love and affection for their mother conveyed to Nona Williams all their right, title and interest as beneficiaries under the last will of Allen Williams, deceased, in all of the real estate of said Allen Williams. That this conveyance was made by quitclaim deed recorded December 13, 1934, in Sheridan County and June 20, 1945, in Johnson County, Wyoming; that a copy of said deed was attached to said answer as exhibit 'A' and made a part of said answer. That this instrument was an absolute conveyance and not one to Nona for life; that it was made without any representations, promises or agreements as to how the grantors would share in the estate of Nona Williams in the event of her decease.

Paragraph IV (Defendants' Answer).

That at some date after the deed to Nona had been executed plaintiff, Ethel, developed a violent and unreasonable dislike of her mother Nona, who had always been a kind mother to her two daughters; that about two years after the execution of said deed plaintiff refused to speak to or recognize her mother, and Ethel and her husband, Walter Hawkey, refused to permit their children to visit Nona Williams, although plaintiff's family resided but a short distance from Nona; that plaintiff though living on an adjoining ranch treated Nona as an absolute stranger without any fault on the part of the latter. That 'this defendant' (Jennie) remained with her mother and assisted her in the operation of the ranch and conduct of her affairs until Nona died.

Paragraph V (Defendants' Answer).

That on July 26, 1941, for the consideration of $1 and other valuable consideration and for love and affection for her daughter 'this defendant Jennie Williams' (this is an error and should read 'Nona Williams') executed and delivered to ...