In re Determination of Survivorship of Bergman

• Decision Date: 05 September 1944
• Docket Number: 2281
• Citation: 60 Wyo. 355,151 P.2d 360
• Parties: IN THE MATTER OF THE DETERMINATION OF SURVIVORSHIP OF DANIEL BERGMAN, DECEASED, CLARA BERGMAN, Petitioner and Appellant, v. THE AMERICAN NATIONAL BANK OF CHEYENNE, WYOMING, SPECIAL ADMINISTRATOR OF THE ESTATE OF DANIEL BERGMAN, DECEASED, Objector and Respondent
• Court: Wyoming Supreme Court

151 P.2d 360

60 Wyo. 355

IN THE MATTER OF THE DETERMINATION OF SURVIVORSHIP OF DANIEL BERGMAN, DECEASED, CLARA BERGMAN, Petitioner and Appellant, v. THE AMERICAN NATIONAL BANK OF CHEYENNE, WYOMING, SPECIAL ADMINISTRATOR OF THE ESTATE OF DANIEL BERGMAN, DECEASED, Objector and Respondent

No. 2281

Supreme Court of Wyoming

September 5, 1944

Appeal from District Court, Laramie County; Sam M. Thompson, Judge.

Proceedings in the matter of the determination of survivorship of Daniel Bergman, deceased, on petition of Clara Bergman decedent's widow, for a decree adjudging that decedent and petitioner were owners of an estate by the entirety, and that title to such property vested solely in the petitioner upon death of decedent. The American National Bank of Cheyenne, Wyo., special administrator of the estate of Daniel Bergman, deceased, appeared specially to object to jurisdiction of court. From a judgment sustaining the objection and dismissing the petition, petitioner appeals.

Affirmed.

For the petitioner and appellant there was a brief by Walter Q Phelan and John C. Pickett, both of Cheyenne, Wyo., and oral argument by Mr. Pickett.

POINTS OF COUNSEL FOR APPELLANT

Clara Bergman and Daniel Bergman, husband and wife, acquired real estate by warranty deed, thus creating in them an estate by entireties. Peters v. Dona, 49 Wyo. 306, 54 P. 2d 817. Thereafter the husband died and the wife filed this action to determine the estate, complying with the requirements of Sec. 88-917 W.R.S. 1931 and giving two weeks' notice as specified therein. There is no other provision in this law for any other kind of notice. Where the statute provides for the giving of notice, the Court has jurisdiction. Where the Court does not have jurisdiction, it is because of some defect in the services of the notice or that the statute was not strictly complied with. In Re Tracey, 69 P. 20; Hansen v. Union Savings Bank, 82 P. 768; King v. Pauly, 115 P. 210.

The notice provided for in 88-916, W.R.S. 1931, is similar to 88-2905 which prescribes a procedure for setting aside homesteads. The right to have exempt property and the homestead set over, has never been questioned. In Re Kiesel's Estate, 35 Wyo. 300, 249 P. 81; Dobler v. Clark, 42 Wyo. 160, 292 P. 246; St. Clair v. St Clair, 46 Wyo. 446, 28 P. 2d 894.

If the objectors question the validity of the deed or that it was not properly executed or that the wife's name was added as a grantee after execution, the remedy is to deny such allegations and raise the matter squarely; merely attacking the jurisdiction of the Court does not conclude anything.

If the Court should hold that it only has jurisdiction to determine the date of death, then chaos will exist as regards all former determinations in which the title itself has been adjudicated.

For the objector and respondent there was a brief by Charles E. Lane W. E. Mullen and Carleton A. Lathrop, all of Cheyenne, Wyo., and oral argument by Mr. Lane and Mr. Lathrop.

POINTS OF COUNSEL FOR RESPONDENTS

Legal title to real estate cannot be adjudicated in proceedings under Chapter 69, Session Laws of Wyo. 1939, relative to estates by entireties. All heirs must be notified of the proceedings, and service by publication, without being directed to such named heirs, is ineffective to exclude residents not notified. Any other holding amounts to depriving persons of their property without due process.

California holds that proceedings to determine estates by entireties are not sufficient to determine any question except fact of death. Where no parties are made defendants, no personal service is had. King v. Pauly, 115 P. 210 Ann. Cas. 1912 C, 1244; Hansen v. Union Savings Bank, 82 P. 768; Matter of Tracey, 69 P. 20.

The probate Court has no jurisdiction to adjudge title to real estate in such proceedings and it cannot make such determination. Bancroft's Probate Practice, Vol. 3, Sec. 1243; King v. Pauly, supra; Hansen v. Union Savings Bank.

If we assume that a deed was executed in favor of a husband and that later and before recording, the wife herself inserted her name as an additional grantee, then the matter becomes clear that the Court has no jurisdiction to determine the estate upon the death of the husband, unless notice to all resident heirs is personally given, thus giving them the opportunity of presenting their claims. Service by publication is not binding upon resident heirs and is in violation of due process.

BLUME, Justice. KIMBALL, C. J., AND RINER, J., concur.

OPINION

BLUME, Justice.

This is a proceeding instituted by Clara Bergman in the District Court of Laramie County, Wyoming, entitled "In The Matter of the Determination of Survivorship of Daniel Bergman, Deceased." The petition alleges that petitioner and Daniel Bergman, deceased, were husband and wife; that the deceased died on the ___ day of April, 1943; that on June 15, 1914, a deed was executed to certain real estate situated at 316 W. 16th Street, in the City of Cheyenne, Wyoming, being a part of Lot 6, in Block 391, and that the deed was made to Daniel Bergman, Cheyenne, Wyoming, and his wife, Clara Bergman, of the same place; that the deed was duly filed of record on July 29, 1914, and was recorded in Book 193 at page 77; that the deed conveyed an estate by the entirety to the deceased and the petitioner; that when the deceased died the estate by the entirety was terminated and thereupon the petitioner became the owner of the premises. The petitioner, accordingly, prays that the court make an order providing for the giving of notice, as provided by law, of the time and place when the court will heart the petition; that upon the hearing the court make and enter a decree adjudging that the deceased and petitioner were the owners of an estate by the entirety, and that the title to the property vested solely in the petitioner upon the death of Daniel Bergman. On April 29, 1943, the court entered an order to the effect that the deceased died on April 19, 1943, and directed the hearing on the petition to be had on May 20, 1943, after publishing a copy of the order once a week for three successive weeks prior to the hearing. A notice as directed was accordingly published. On May 19, 1943, the American National Bank, of Cheyenne, Wyoming, as special administrator, appeared specially in the proceeding and solely and only for the purpose of objecting to the jurisdiction of the court over any of the persons interested in the estate or of the subject matter of the proceeding, and it is apparently contended that no deed, such as claimed by petitioner, was ever executed. The court sustained the objection on May 20, 1943, and dismissed the petition. From this order an appeal has been taken to this Court.

It is claimed that the proceeding herein was instituted in accordance with the provisions of Ch. 69, S. L. of 1939, which is as follows:

"If any person has died, or shall hereafter die, who at the time of death was or is the owner of a life estate which terminated or terminates by reason of the death of such person, or if any person has died or shall hereafter die, who was or is the owner with his or her surviving spouse of an estate by entireties, any person in either case, interested in the property or in the title thereto, in which such estate was or is held, may file in the District Court of the county in which the property is situated a verified petition setting forth such facts and thereupon, after two weeks notice by publication or otherwise, as the court may order, the court shall hear such petition and the evidence offered in support thereof; and if, upon such hearing, it shall appear to the court that such life estate of such deceased person has terminated by reason of such death or that such estate by entireties remains vested solely in the surviving spouse by reason of death, the court shall make a decree to that effect, and thereupon a certified copy of such decree shall be recorded in the office of the county clerk and thereafter shall have the same effect as a final decree of distribution of an estate of a decedent."

The original Act (Section 88-916, Rev. St. 1931) related only to the termination of a life estate and provided that the hearing should be had "after such notice by publication, or otherwise, as the court may order," instead of providing for a definite notice of two weeks as contained in the amendment of the Section. The question herein is whether or not, as contended by counsel for the petitioner, an order upon the hearing of the petition is conclusive as to the ownership of the property involved, or whether, as contended by counsel for the objectors, the jurisdiction of the court is confined to the determination of the fact of death of one of the grantees in the deed made to husband and wife. The statute above mentioned was amended apparently after our decision in Peters v. Dona, 49 Wyo. 306, 54 P.2d 817, in which this court held that a deed executed to husband and wife creates an estate by the entireties.

Provisions are made in the statutes of various states in the United States in connection with showing of record the fact that an estate in land has been terminated by the death of one who has an interest therein, including the termination of a life estate, an estate by the entireties, or an estate created by the community-property law. In Colorado the statute provides that a certificate of the death, issued by a public official may be recorded and that such certificate shall be prima facie evidence of the death of the party interested in real estate. § 40-117 Colo. Ann. Statutes, 1935. In Minnesota the statute provides that the death of a joint tenant or of one who has a life estate in property may be shown upon the records by filing a copy of...