In re Eder's Estate

• Decision Date: 15 January 1934
• Docket Number: 12770.
• Citation: 29 P.2d 631,94 Colo. 173
• Parties: In re EDER'S ESTATE. v. METHODIST EPISCOPAL CHURCH ASS'N OF FOWLER et al. EDER et al.
• Court: Colorado Supreme Court

29 P.2d 631

94 Colo. 173

In re EDER'S ESTATE.

EDER et al. v. METHODIST EPISCOPAL CHURCH ASS'N OF FOWLER et al.

No. 12770.

Supreme Court of Colorado, En Banc.

January 15, 1934

Error to Otero County Court; E. C. Glenn, Judge.

Application by J. A. McClaren and others, as representatives of the Methodist Episcopal Church Association of Fowler and others for the admission to probate of a lost will of Martin Eder deceased. Judgment admitting the will to probate and Mathew Eder and John Eder, contestants, bring error.

Reversed with directions.

Edward M. Auslender, of Los Angeles, Cal., for plaintiffs in error.

Wayne C. Williams, of Denver, and Ambrose B. Wallis, of La Junta, for defendants in error.

HILLIARD Justice.

Martin Eder, for many years and at the time of his death a resident of Otero county, died September 5, 1928. September 27, 1928, H. W. Fox was appointed administrator of Eder's estate, apparently on theory of intestacy. April 8, 1929, three of the individual defendants in error, averring that they were the duly authorized representatives of the several churches, also defendants in error, filed a petition seeking the admission to probate, as a lost will, of an instrument set forth in full in the petition, alleged to have been made and published by Eder as his last will and testament January 27, 1919, and witnessed by Walter M. Berry and Ambrose B. Wallis. The petition avers that Eder had no known heirs, that diligent search for the original of his will failed to disclose its whereabouts, that it 'had been inadvertently, by the custodian thereof, lost or mislaid,' and prays that the administrator Fox be granted letters of administration with the will annexed. A motion to make the petition more specific, among other things, by setting forth who was the custodian said to have lost or mislaid the will, was denied.

Error to assigned to the overruling of the motion to make more specific, to the admission of the testimony of several witnesses, and to the admission to probate of the will as a lost will. The assignments are voluminous, but generally are to be grouped as outlined above. Those we have not discussed are to be considered as without merit or as unnecessary to a decision.

Several provisions of the statutes with respect to wills and to the competency of witnesses are involved. These are sections 5204, 5205, and 6556, C. L. 1921. So far as pertinent to this inquiry, they read as follows (section 5204, amended, Session Laws 1923, p. 710, § 3): 'If, upon the hearing of such proof, it shall satisfactorily appear by the testimony of two or more of the subscribing witnesses to such will that said will was executed, declared and attested as provided in Section 13 hereof, and that they believe the testator to have been of sound mind and memory at the time the same was executed, declared and attested, the court may admit the same to probate and record; Provided, That no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of the court, shall be deemed sufficient to invalidate or destroy the same, and every will, when thus proven and recorded by the Clerk of the County Court in a book to be provided by him for that purpose shall be good and available in law, for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein and thereby given, granted, devised and bequeathed.' Section 5205: 'Whenever any will shall have been lost or destroyed, and the fact of the execution thereof can be established, as herein provided, and the contents thereof are likewise shown by the testimony of two or more witnesses, the county court may admit the same to probate and record, as in other cases; Provided, That in every such case the order admitting such will to probate shall set forth the contents of the will at length, and the names of the witnesses by whom the same was proven, and such order shall be recorded in the record of wills; and, Provided, further, That no will shall be admitted to probate upon proof of the contents thereof unless it shall be proven that the same was in existence at the time of the death of the testator.' Section 6556: 'That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of an idiot, lunatic or distracted person, or as the executor or administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee; unless when called as a witness by such adverse party so suing or defending and also, except in the following cases, namely:

'First--In any such action, suit or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person. * * *

'Sixth--In any such action, suit or proceeding, any adverse party or parties in interest may testify as to any conversation or admission, or as to all matters and things connected with the subject matter of said action, suit or proceeding, and which conversation and admission and matters and things aforesaid, occurred Before the death and in the presence of such deceased and also in the presence of any member of the family of such deceased person over the age of sixteen years, or in the presence of any heir, legatee or devisee of such deceased person over the age of sixteen years; Provided, however, That such member of the family, heir, legatee or devisee as the case may be, is present at the hearing of said action, suit or proceeding, or whose testimony is or may be procurable at such trial.'

While no provision is made in the statutes as to the manner in which letters testamentary or of administration with the will annexed shall be sought, it has been the practice to present a petition setting forth facts which, if established, will justify admission of the will to probate. On the part of those desiring to contest the validity of a will, the statute (section 5211, C. L. 1921) provides that 'a caveat or objections, in writing,' shall be filed, 'which objections shall be subject to demurrer for insufficiency or motion to make more specific, definite or certain, and to amendment and answer as a complaint and answer in civil cases.' In this proceeding a petition substantially in the usual form, varied to meet the situation presented by a lost will, was filed. A caveat as contemplated by the statute was filed, but included in it was an answer to the petition for probate. No answer to the caveat appears in the record. The parties, without objection, proceeded to trial upon the issues so made up; it apparently being considered that the allegations of the caveat were to be taken as denied. This departure from the procedure prescribed by the statute is not to be commended, and, since a new trial may be had, the pleadings should be made up as the Legislature has commanded. The issues are upon the caveat and the answer thereto, and it follows therefore that it was proper to deny the motion to make the petition for probate more specific. The only office of the petition was to bring the alleged will to the attention of the court to the end that citation to attend the probate thereof might issue and, if admitted, that letters be granted. The confusion that seems to attend the record is largely obviated if the nature of the proceedings is observed in light of the statutes. The petition for probate brought the will Before the court, and the burden was upon the proponents to establish the facts required to be established if the will were to be admitted. Upon the caveat, however, the burden must be sustained by the objectors. In the case at bar, the record discloses that there was actually no hearing upon the caveat. The proponents presented evidence which they considered sufficient to warrant admission of the will, and rested, while the objectors presented no evidence, either upon the petition or upon their caveat, contenting themselves by moving that the will be denied probate because the proponents' evidence was insufficient. The foregoing observations may be unnecessary, but, in the event of a new trial, should be considered by the parties.

Among the witnesses for the proponents were Ambrose B. Wallis, Ben B. Kouns, H. W. Fox, J. A. McClaren, A. C. Teilborg, and Frank G. Hough. Objection was made to the testimony of Wallis on the ground that, since he was attorney for the proponents and interested, because of fees to be derived, in having the will admitted, he was incompetent to testify under the statute above quoted. This objection was without merit. In re Shapter's Estate, 35 Colo. 578, 85 P. 688 6 L.R.A. (N. S.) 575, 117 Am.St.Rep. 216. The objection to the testimony of Kouns should have been sustained, since he was a beneficiary under the will. Nor is his lack of competency cured by the fact that he may have some claim to his legacy under the terms of a bond for deed given him by Eder the same day the will was made. The bond was for the conveyance by Eder to Kouns of certain real estate, conditioned upon the payment of $16,000 in yearly installments of $500. After recital of the terms of payment, it reads: 'Provided, that upon the death of the said party of the first part (Eder) payments shall cease and determine and deed issue.' Following this language, and after setting forth certain conditions to be observed by Kouns, the bond continues: 'And it is further agreed, that in the event of the nonpayment of said purchase money * * * the said party of the second part shall forfeit all payments made, and such payments shall be retained by the said ...