In re Bernheim's Estate
| Decision Date | 05 April 1928 |
| Docket Number | 6185. |
| Citation | 266 P. 378,82 Mont. 198 |
| Parties | In re BERNHEIM'S ESTATE. v. BERNHEIM et al. HAHN et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Suit by Martha Hahn and Judith Green against Leo Bernheim, David Bernheim, individually and as executor of the last will and testament of Louis Bernheim, deceased, Augusta Bernheim, and others, to determine heirship and to revoke the probate of the will of deceased. From a judgment for plaintiffs, all defendants named, except Leo Bernheim, appeal. Modified and affirmed.
Frank & Gaines, William Meyer, and Harry Meyer, all of Butte, for appellants.
H. J Freebourn, Binnard & Rodger, and John A. Shelton, all of Butte, for respondents.
In this cause, on motion for rehearing, the opinion of the court delivered heretofore and on the 21st day of February, 1928 is withdrawn, and the following is substituted as the opinion of the court:
About February 20, 1925, Louis Bernheim, a resident of Silver Bow county, Montana, died, leaving estate in that county. He left surviving him a widow, Augusta G. Bernheim (called Augusta Bernheim in the title of this case and proceedings therein) and collateral relatives. He left a holographic will, executed February 7, 1925. The nominative and dispositive parts of it are as follows:
A petition for the probate of the will was filed in the district court, and, March 14, 1925, the will was admitted to probate, and there was made an order appointing David Bernheim as the executor thereof.
Thereafter, Martha Hahn and Judith Green (mentioned in the will), as heirs, filed in the district court a petition to determine heirship of Louis Bernheim, deceased, and, as plaintiffs, a complaint to have revoked the probate of the will and have declared void the instrument admitted to probate as a will and to have established heirship and have declared the rights of all persons in and to decedent's estate. Later, an amended complaint was filed. Leo Bernheim, Anna Bernheim, Val Sheres, David Bernheim, and Augusta Bernheim were named therein as defendants. The amended complaint consists of two counts.
In the first count it is alleged substantially: That decedent, a resident of Silver Bow county, Mont., died intestate, and left estate in that county; that plaintiffs had filed, in the matter of the estate, a petition to determine heirship and now file therein an amended complaint; that March 14, 1925, there was admitted to probate a purported will of decedent; that, according to the terms thereof, after certain bequests, the remainder of the estate is not disposed of and descended, by the law of succession, to the heirs, and that the terms of the purported will are so contradictory the bequests cannot be given effect; that the heirs are those named, and their relationships to decedent are as stated; that the purported will is ineffective, and the estate passed, by operation of law, to the heirs, and the share vesting in each is as stated. In the second count somewhat different allegations are made, but substantially to the same effect, with the same result in view.
A copy of the purported will is attached to the amended complaint and made a part thereof.
The prayer asks that the order admitting the will to probate be annulled, and that the will be declared void, or, if it be not held void in toto, that it be held void except as to the provisions appointing an executor and revoking all former wills; that the persons whose names are set forth be declared to be the heirs of decedent and entitled to share in the estate in the proportions named.
The order of court provided for in section 10324, Revised Codes 1921, was made, and it appears that notice as in that section required was given and served.
In response to such notice, the following mentioned parties, named in the amended complaint as defendants, appeared and answered and, by answer, set forth their respective claims in and to the estate of decedent: Augusta Bernheim, the widow, in separate answer; David Bernheim, as an individual, in separate answer; Leo Bernheim, Anna Bernheim, and Val Sheres, in joint answer. David Bernheim, as executor, was not named in the amended complaint as a defendant, but he filed an answer, and was permitted to make himself a defendant and to answer. In his answer he alleges that decedent left a will, the one in question, and that it is a valid will; alleges that the will was duly probated, and that he was duly appointed executor of the will, and qualified as such, and is acting as such. He denies invalidity of all or any part of the will, and seeks to uphold the will in its entirety, and says it is necessary that his duties in the distribution of the estate be determined by judgment of court.
A reply to the joint answer of Leo Bernheim, Anna Bernheim, and Val Sheres was made.
These pleadings being filed, Augusta Bernheim moved for judgment on the pleadings; David Bernheim, as executor, and David Bernheim, as an individual, did likewise, jointly; and plaintiffs did the same.
Thereafter the court made an order in the premises. It holds that Louis Bernheim died testate, owning real and personal property in Silver Bow county, Montana. It names his heirs. The list includes all parties to this proceeding, and sets forth their respective relationship to decedent, in his lifetime. The order holds that the dispositive provisions of the will, aside from the specific bequests made, are void; that the dispositive parts of the will are so interdependent that injustice would be done and the intention of the testator would be disregarded, if the clauses making bequests were retained and given effect, and the other provisions rejected; that therefore the will, in so far as it attempts to dispose of property, is invalid, and that upon final distribution, the widow should have one-half of the estate. It names each of the other relatives entitled to participate, and sets forth the share each should receive.
Whereupon the court rendered judgment, adjudging and decreeing the will to be invalid as to all of the dispositive provisions thereof, and that the entire estate be distributed according to the law of succession. It recites that it is further adjudged and decreed that, after payment of debts of decedent and expenses of administration, the estate be distributed to the heirs, according to their respective interests, as set forth in the judgment.
From the judgment, appeals were taken by Augusta Bernheim, the widow; David Bernheim, as an individual; David Bernheim, as executor.
In this court, joint motion was made by all of the respondents (the plaintiffs and defendants Leo Bernheim, Anna Bernheim, and Val Sheres) to dismiss each of the appeals.
The motion to dismiss the appeal of Augusta Bernheim was made on the ground that appellant is not a party aggrieved by the judgment.
The motion to dismiss the appeal of David Bernheim, as an individual, was made on the ground that appellant did not file an undertaking on appeal.
The motion to dismiss the appeal of David Bernheim, as executor, was made on two grounds: (1) That the record does not show that there was made any objection by the appellant to the entry of the judgment; (2) that appellant is not a party aggreived by the judgment.
The motions to dismiss were argued orally, upon the argument of the cause in this court. In addition, extensive briefs for and against the motions were filed, aside from the briefs on the merits of the cause.
We consider, first, the motions to dismiss appeals, and of them we take up, first, the motion to dismiss the appeal of Augusta Bernheim, made on the ground that she is not an aggrieved party. The right of appeal is purely statutory. In re Searles, 46 Mont. 322, 127 P. 902; City of Miles City v. Drum, 60 Mont. 451, 199 P. 719. Only an aggrieved party may appeal. Section 9730, Rev. Codes 1921. Under the statute respecting the right of appeal (section 9730, supra), the proper general rule is that any party to an action or proceeding having an interest, recognized by law, in the subject-matter, which is injuriously affected by the judgment, is a party aggrieved within its meaning. Hornbeck v. Richards, 80 Mont. ---, 257 P. 1025. Is Augusta Bernheim aggrieved by the judgment?
Careful inspection of the pleadings and the judgment shows conclusively that Augusta Bernheim was awarded by the judgment all she sought by her answer. She was required by order of court and by statute (section 10324, supra) to appear and assert her interest in the estate of her deceased husband. She complied; she appeared; and, by her answer, she asserted her interest to be one-half. Her answer alleged that decedent left a will, and that the will was valid, and asserted that her interest under the will was one-half of the estate, and further asserted that, if the will...
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