Hoff v. Armbruster

• Decision Date: 16 October 1950
• Docket Number: No. 16347,16347
• Citation: 122 Colo. 563,226 P.2d 312
• Parties: HOFF v. ARMBRUSTER et al.
• Court: Colorado Supreme Court

Page 312

226 P.2d 312

122 Colo. 563

HOFF v. ARMBRUSTER et al.

No. 16347.

Supreme Court of Colorado, en Banc.

Oct. 16, 1950.

Opinion Adhered to Jan. 15, 1951.

Isaac Mellman, Denver, for plaintiff in error.

Harold B. Wagner and Carl A. Wyers, Denver, for defendants in error.

MOORE, Justice.

Minnie S. Phillips died January 8, 1948. Gladys A. Armbruster qualified as administratrix of her estate on January 15, 1948. Plaintiff in error, to whom we hereinafter refer as petitioner, on July 20, 1948, filed her petition in the said estate proceedings, in which she sought to have admitted to probate a will alleged to have been duly executed by decedent May 15, 1936.

Defendants in error, hereinafter designated as caveators, are heirs at law of the deceased Minnie S. Phillips. They filed their caveat in which they objected to the probate of the alleged will upon the following grounds: 1. that the instrument tendered as the will of the deceased was not executed by deceased as her will; 2. that the instrument was delivered to decedent immediately after it was prepared and she retained it in her custody and control at all times until she revoked it; 3. that if said instrument was executed by the decedent as her will, she revoked it.

The cause was tried upon these issues in the county court, resulting in a judgment adverse to petitioner. On appeal to the district court, a jury was empaneled and the cause proceeded to trial, in which petitioner also was unsuccessful.

The undisputed evidence established that on May 15, 1936, Minnie S. Phillips executed a will which was prepared at her request by her attorney. Immediately following the due execution of this will the said instrument was delivered to decedent and, so far as appears from the record, was not seen at any time thereafter. Mr. Hugh B. Kellogg, the attorney who drew the will in 1936, prepared the papers, which resulted in the opening of the estate as an intestate estate. He testified: 'I have never found any evidence at all that there is any will. I have never seen the original since the day I handed it to her, and we couldn't find it.' Mr. Kellogg identified petitioner's Exhibit 1 which was an unsigned duplicate carbon copy of the will executed by decedent on May 15, 1936. Thereupon the following offer of proof was made by the attorney for petitioner:

'I expect to offer Exhibit 1, which has been identified as a carbon copy of the will executed by Minnie S. Phillips which was properly executed and properly attested and witnessed. That is, the original was properly executed, attested and witnessed. Then I expect to offer or expect to have identified Exhibit 2 as the last will and testament of William L. Phillips and have Mr. Kellogg testify as to the execution and witnessing, and have Mrs. Daly testify to that, and I expect to offer that Exhibit 2 and also to show that subsequent to the death of William L. Phillips, his will was lodged with the Clerk of the County Court in Denver by Mrs. Phillips, and on the basis of their being mutual wills, we respectfully submit to the Court we have made a prima facie case, and it would be up to the caveators to show a proper revocation of the will, the original of Exhibit 1, by the testatrix.'

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'We expect to prove that identical wills were executed on the 15th, that the next day Mr. Phillips made a slight, minor change, which was prepared by Mr. Kellogg, and the will, Exhibit 2, was executed by Mr. Phillips and witnessed and based upon the language being identical in the two wills as to the major parts thereof, that they are mutual and reciprocal wills, and therefore, when Exhibit 2 was lodged by Mrs. Phillips, the original of Exhibit 1 was still in force legally at her death, and we will have made a prima facie case at that time.'

In response to the suggestion of the trial court that the offer of proof be made more definite in certain particulars the attorney for petitioner further offered to prove that William L. Phillips, the testator in Exhibit 2, died in November, 1946, and within a day or so thereafter Minnie S. Phillips lodged his will with the clerk of the county court; that the said will of Mr. Phillips was not admitted to probate; and that, subsequent to the death of William L. Phillips part of the will was carried out by Minnie S. Phillips 'in that she sent a thousand dollars to one of the legatees mentioned in the will of William L. Phillips.'

The petitioner's attorney, having indicated that the proof offered would conclude the evidence on her behalf, counsel for caveators objected to the proof offered upon the ground of irrelevancy, and moved that the petition for probate of the alleged will be denied. In ruling upon this motion the court said:

'So the record will be clear, I will consider the offer of proof as being evidence that would be in should the Court rule on the motion for non-suit, and considering that offer of proof as evidence for the purpose of ruling on the motion, I think the motion for dismissal was good.

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* * * 'Exhibit 1 will be admitted for the purpose of the record, and Exhibit 2, likewise, under the statement that I just made.'

The court discharged the jury and entered formal judgment which includes the following:

'B. That the evidence presented by the appellant whether actually adduced from witnesses or tendered in the appellant's behalf by her counsel as an offer of proof is insufficient as a matter of law to prove that the will offered for probate by the appellant was ever executed by the decedent in the manner provided by the Colorado statutes and said evidence is likewise insufficient to prove that said alleged will was in existence at the time of decedent's death;

'C. That the order of the County Court of the City and County of Denver denying probate of said will be and it is hereby affirmed;

'D. That the appellant's said petition for probate be and it is hereby dismissed;' Petitioner seeks reversal of this judgment by writ of error.

Questions to be Determined.

First: Assuming that the will executed on May 15, 1936, by decedent and the will...