In re Black's Estate

• Decision Date: 17 July 1923
• Docket Number: 1025
• Citation: 30 Wyo. 55,216 P. 1059
• Parties: IN RE BLACK'S ESTATE; v. STATE ET AL HALL ET AL.
• Court: Wyoming Supreme Court

216 P. 1059

30 Wyo. 55

IN RE BLACK'S ESTATE;

HALL ET AL. v. STATE ET AL

No. 1025

Supreme Court of Wyoming

July 17, 1923

ERROR to District Court, Big Horn County; PERCY W. METZ, Judge.

Proceedings by David Hall and others to determine the rights of heirs to the estate of James Black, deceased, in which the State of Wyoming intervened. There was a judgment entered on a finding that petitioners failed to introduce sufficient proof to establish their heirship to the estate and they bring error.

Reversed and Remanded.

Roderick N. Matson and Shouse and Rowland for plaintiffs in error.

Plaintiffs in error, claim as heirs-at-law of James Black, deceased; the Trial Court held their evidence insufficient to establish their relationship to the deceased. While the law applicable to the question of sufficiency of evidence to establish heirship covers a wide range, plaintiffs contend that the ruling and judgment of the court in this case is contrary to the evidence and contrary to law; claimants own testimony has been sufficient to prove relationship. (Smith v White, 165 Mo. 590.) The question was considered in the following cases. (In re Clarke's Estate, 13 Cal.App. 786, 110 P. 828; Adie v. Comm. 25 Grat. (Va.) 712; In re Colbert's Estate, 59 Mont. 455 153 P. 1022; Richmond v. Taylor, 159 N.W. 435.) Common reputation in the family as to who are members when no superior evidence is obtainable to prove pedigree, legitimacy and marriage has been held sufficient. (In re Picken's Estate, 123 Pa. 14, 25 L. R. A. 477.) All testimony introduced tending to prove that James Black deceased was a member of the same family as Kizzie Black, was material. (Selman v. Lee, 6 Bush (Ky.) 215; Rogers v. Park, 4 Hump (Tenn.) 480.) No other claims of heirship were filed; An escheat to the estate will not be awarded unless it be clear that there are no heirs of deceased to be found. (In re Sullivan's Estate, 48 Wash. 631, 94 P. 483; University v. Harrison, 90 N.C. 385.) It is true that memory of witnesses as to dates was vague, but this is not strange considering the time which has elapsed. (McKeown v. Brown, 167 Ia. 489.) In analyzing the testimony there will appear no discrepancy tending to disprove that plaintiffs in error are the next of kin of deceased. The court erred in striking out testimony of the witness Charles as to statements of his wife's mother regarding members of her family, such statements being admissible to establish pedigree. (Cuddy v. Brown, 78 Ill. 415; Stein v. Mentz 94 S.W. 447; In re Kennedy, 143 N.Y.S. 404; Smith v. Smith, 140 Wis. 599; Wolf v. Wilhelm, 146 S.W. 216.) Statements made by deceased as to his plans and intentions were material and admissible on the question of his identity and the court erred in striking out the testimony of the witness Harris with respect thereto. (Smith v. Smith supra; In re Kennedy supra.)

W. L. Walls, Atty. General for defendant in error.

The proofs offered by plaintiffs in error in support of their claim of relationship to deceased were so indifferent and uncertain as to afford the trial court little or no information as to whether the decedent, James Black was related to them; the question of kinship and of the right of plaintiffs in error to inherit if such right exists, would seem to be a question susceptible of at least some degree of intelligent proof. The cases cited by them do not sustain their contention. Smith v. White, 65 S.W. 1013, is one where a jury had found on the controverted fact of relationship. There is nothing showing that the finding is based upon the sole testimony of the plaintiff, the same may be said of Keary v. Barritt, In re Clark, Addy v. Comm. and all of the other authority cited. The state does not contend that there are no heirs of James Black, deceased, but does contend that these plaintiffs in error are not his heirs and this conclusion is sustained by the record. In the case at bar they must recover on the unsupported testimony of F. A. Charles, which is contradicted by one of their own witnesses and frequently by the witness himself. We agree with all of the authorities cited, and it is unnecessary to discuss them individually; the testimony of Hall was not excluded to grant the prayer of either of the plaintiffs in error in view of the state of the record it would not be in accordance with justice.

POTTER, Chief Justice. Blume and Kimball, JJ., concur.

OPINION

POTTER, Chief Justice.

This case is here on error for the review of an order of the District Court in Big Horn County, in the probate proceeding for the administration of the estate of James Black, deceased, upon a hearing of a petition of the plaintiffs in error herein praying that the court "ascertain and declare the rights of all persons in and to said estate, and all interests therein, and to whom distribution thereof should be made," and that if said petitioners are found to be the sole and lawful heirs of said decedent that an order be made directing distribution to them.

The material facts of the procedure, preceding the order complained of, are as follows: On July 16, 1918, an order was made in said court appointing H. H. Hime as administrator of the estate of James Black, deceased, upon the petition of said Hime, an alleged creditor of the deceased; the order reciting that the said James Black had died in the state of Arkansas on or about said date, and that he was a resident of said Big Horn County at the time of his death, leaving an estate in said county and within the jurisdiction of said court. On August 28, 1918, the administrator's first report was filed, stating among other things: That said James Black died at the town of Edgemont, Arkansas, where he was "sojourning on account of ill health;" that in collecting the estate it was necessary for the administrator to go to Arkansas, where he settled all accounts for the burial of deceased and expenses of his last sickness That "so far as he has been able to discover, the deceased has no relatives residing in Wyoming, but your administrator has been informed and now believes that the heirs of this estate reside in the state of Kansas and consist of one brother and nephews and nieces." On June 14, 1919, the aforesaid petition for declaration of heirship was filed, being entitled: "In the Matter of James Black, Deceased. Petition for decree of heirship and order of distribution." It alleges in substance that the parents of said James Black, deceased, departed this life many years ago, in Woodruff County, Arkansas, leaving as their only children and heirs at law the said decedent and a daughter, Kizzie Black; that said James Black was never married, and died intestate near Sandiff, Cleburne County, in the State of Arkansas, on July 9, 1918, leaving as his sole heirs the said petitioners, descendants of his said sister, Kizzie Black. That petition was not verified but appears to have been signed by Shouse & Rowland as attorneys for David Hall, Bell B. Waters, and Dora F. Wheeler, three of the persons named as petitioners, and by Harry M. Woods as attorney for James Charles and J. K. Charles, the two other persons named as petitioners.

On August 1, 1919, an order was made in the matter of said estate, reciting that the cause came on to be heard upon the suggestion of the administrator that persons residing in the State of Arkansas had filed claims that they were the legal heirs at law of the said James Black, deceased; that the court having read said claims and the proofs attached thereto is in doubt as to the legality thereof and deems it for the best interests of said estate, and all persons concerned therewith, that further investigation thereof be made, and that it will be necessary for the administrator and his attorney to make a personal investigation of said claims. And it was thereby directed that the said administrator make further and complete investigation of claims of heirship now on file in the court, to take such proceedings as he deems necessary to fully investigate said claims, including a trip to such points in the state of Arkansas and to other places as in his judgment may be necessary, taking with him the attorney for the estate, the expenses of such investigation to be borne by the estate. As will be shown when referring to the evidence, the administrator shortly after the date of said order, went to Arkansas as directed and while there stipulated through his attorney for the taking of certain depositions which appear to have been taken in his presence, and they were offered and received in evidence on the hearing.

On November 17, 1919, another order was made in the same matter, reciting that the cause came on to be heard upon the report of the administrator, showing that certain named persons had made claims of heirship to the estate, naming the said petitioners and the State of Wyoming, and fixing the 15th day of December, 1919, as the time for "hearing of all claims of heirship in this estate," and directing all persons interested to appear on said date and set forth their claims. It directed also the mailing of the order by registered mail to all persons "appearing of record and claiming heirship," that a copy be forwarded to the Attorney General of this state, and that "the notice be published for four consecutive weeks in the Basin Republican."

There is no proof in the record of the publishing of said last mentioned order or the serving of any notice of it. An unofficial copy of the entries on the appearance docket has been furnished which might be made part of the record, if necessary, by proper authentication; but it contains no entry of the filing of any such proof. It would be material only upon a question to be discussed relating to the procedure in such cases prescribed by statute. So far as these...