Hoecker v. United Bank of Boulder

• Decision Date: 29 March 1973
• Docket Number: No. 72-1170.,72-1170.
• Citation: 476 F.2d 838
• Parties: Robert L. HOECKER, Trustee in Bankruptcy of Anthony Colacci, Bankrupt, Plaintiff-Appellant, v. UNITED BANK OF BOULDER, Administrator C. T. A. of the Estate of Mike Colacci, a/k/a Michael Archangelo Colacci, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

476 F.2d 838 (1973)

Robert L. HOECKER, Trustee in Bankruptcy of Anthony Colacci, Bankrupt, Plaintiff-Appellant, v. UNITED BANK OF BOULDER, Administrator C. T. A. of the Estate of Mike Colacci, a/k/a Michael Archangelo Colacci, et al., Defendants-Appellees.

No. 72-1170.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 20, 1972.

Decided March 29, 1973.

As Amended on Denial of Rehearing April 23, 1973.

Frederick T. Berhenke, Denver, Colo., for plaintiff-appellant.

Don P. Stimmel, Boulder, Colo. (Paul A. Dupler, Boulder, Colo., on the brief), for defendants-appellees.

Before PHILLIPS, SETH and HOLLOWAY, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

This is an appeal from a judgment dismissing the complaint, D.C., 334 F.Supp. 1080, on the ground that it did not state a claim upon which relief could be granted, in an action brought by Hoecker in his official capacity as trustee of the estate of Anthony Colacci, bankrupt. The defendants were the bankrupt; his brother, Joseph Colacci; his children, Toni Musgrove, Mary Motto, Patty Dondelinger, and Sally Colacci; and the United Bank of Boulder, Administrator C.T.A. of the estate of Michael Colacci, the deceased father of the bankrupt.

For the purpose of deciding the issues presented on this appeal, we must accept as true the facts, but not the conclusions of law alleged in the complaint.

We next set out the facts so alleged:

On March 4, 1970, Mike Colacci died while domiciled in Boulder County, Colorado, leaving a last will and testament by which he devised and bequeathed all of his property to his two sons, Anthony Colacci and Joseph Colacci, in equal shares.

The will provided that should either of the two sons predecease the testator, the share that would have gone to the predeceased son would go to his children, per stripes.

On August 26, 1970, and within one year prior to the time Anthony Colacci filed his voluntary petition in bankruptcy, he executed an instrument which he filed on August 27, 1970, in the District Court of Boulder County, Colorado, the court which had jurisdiction of the estate of the testator. By such instrument, he disclaimed irrevocably the property he otherwise would have received under such will.

At the time of the execution and filing of such disclaimer, there were existing creditors of the bankrupt who had provable claims against the estate of the bankrupt under the Bankruptcy Act.

The bankrupt did not receive fair consideration for the execution and filing of such disclaimer, and in fact, received no consideration therefor.

The fair salable value of the bankrupt's property, exclusive of the share of the testator's estate devised and bequeathed to him by the will, was less than the amount required to pay his debts, and without such share he was insolvent.

The trustee sought a decree adjudging that the disclaimer was null and void and the claim of the children of the bankrupt to one-half of the estate which was devised and bequeathed to him was invalid, and requiring the Bank of Boulder to transfer and deliver to the trustee such one-half of the estate, or if the Bank had disposed of such one-half of the estate, requiring it to account to the trustee therefor.

Section 67(d) (2) of the Bankruptcy Act, 11 U.S.C.A. § 107(d) (2), in part here pertinent reads:

"Every transfer made and every obligation incurred by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent (a) as to creditors existing at the time of such transfer or obligation, if made or incurred without fair consideration by a debtor who is or will be thereby rendered insolvent, without regard to his actual intent; * * *."

Section 1(30) of the Bankruptcy Act, 11 U.S.C.A. § 1 (30), reads:

"`Transfer\' shall include the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security, or otherwise; the retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by such debtor."

At the time of the death of Mike Colacci and the filing of the disclaimer by the bankrupt, Colorado Revised Statutes 1963, 153-5-43, as amended in 1965, in part here pertinent provided:

"Disclaimer—filing period.—(1) Any person who may be entitled to receive any property * * * under any will * * * shall have the right to disclaim irrevocably the whole or any part of such property * * *.

"(2) (a) In the case of an interest receivable under a will * * * if such disclaimer is made in writing and filed in the county court in which the estate is pending not later than six months after such will has been admitted to probate, * * * such disclaimer shall be made retroactive to the decedent\'s death, and in such case such property * * * so disclaimed shall pass in the same manner as if the person so disclaiming had predeceased such decedent, unless otherwise provided by the will in which case the will shall be controlling.

* * * * * *

"(5) Unless a disclaimer under subsection (1) of this section is filed or delivered within the six months\' period to make it retroactive to decedent\'s death * * * then such disclaimer shall be construed as an assignment of the interest disclaimed to those persons who would be entitled to take had the person disclaiming predeceased such decedent * * *."

The disclaimer was in writing and was filed in the county court in which the administration of the estate was pending, prior to the expiration of six months after the will had been admitted to probate.

With respect to the meaning of the word "transfer," as used in § 67(d) (2) of the Bankruptcy Act, 11 U.S.C.A. § 107(d) (2), federal law is controlling.¹

Moreover, the term "transfer" has been given an extremely broad meaning in the adjudicated cases and has been construed to include every method of disposing of or parting with property or possessions. See Pirie v. Chicago Title and Trust Company, 182 U.S. 438, 21 S.Ct. 906, 45 L.Ed. 1171.

The term "transfer" would include the disclaimer filed by the bankrupt, if the effect of such disclaimer was to transfer from him to his children the property devised and bequeathed to him by the will.

But the right to testamentary disposition and the right to succession by will of property within the jurisdiction of a state exists only by statutory enactment by such state so providing, and may be regulated, limited, conditioned, or wholly abolished by such state.²

Hence, the answer to the question we shall next set out, and which will determine the precise issue presented in this appeal, must be derived from a construction of the Colorado statute set out, supra, which is controlling.

That question, then, is whether under such statute, notwithstanding the disclaimer was filed within six months after the will was admitted to probate, one-half of the property that was devised and bequeathed to the bankrupt by the will passed to him when he filed the disclaimer, or passed to him at any other time, so that the effect of the disclaimer was to transfer such one-half from him to his children.

We think it perfectly clear from the...