In re Goldsberry Estate
| Citation | 81 P.2d 1106,95 Utah 379 |
| Decision Date | 29 July 1938 |
| Docket Number | 5984 |
| Court | Supreme Court of Utah |
| Parties | In re GOLDSBERRY ESTATE. GOLDSBERRY v. GREEN et al |
Appeal from District Court, First District, Cache County; Lester A Wade, Judge.
Proceeding in the matter of the estate of Nancy L. Goldsberry, deceased wherein Orson Goldsberry filed a petition for letters of administration, to which objections were filed by C. A Goldsberry, who filed a will for probate, to which Jessie L Green filed a contest. From an order refusing probate of the will, the proponent appeals.
REVERSED, with instructions.
George D. Preston and Melvin C. Harris, both of Logan, for appellant.
Leon Fonnesbeck, of Logan, for respondents.
Appeal from an order refusing probate of a will on the ground that it had been obtained by duress and undue influence. On November 29, 1933, decedent, Nancy Laura Goldsberry, made what purported to be a will in which C. A. Goldsberry, one of her sons, was made sole beneficiary. Upon the death of Nancy Goldsberry, this will was not tendered for probate because, as testified by C. A. Goldsberry, all the property of decedent stood on the record in his name. About 1922 he had made a trade with his mother conveying to her a house and lots in Paradise, together with $ 2200 to boot, evidenced by $ 1700 in cash and a $ 500 negotiable note made out in the name of the son, for 27 acres of land belonging to the mother. While the deed from mother to son was recorded, the deed from son to mother was not recorded. The 27 acres, therefore, were still in the name of C. A. Goldsberry; the note was in his name. The bank account containing the unused portion of the $ 1700 was a joint account. Therefore, the attorney for C. A. Goldsberry advised him that it was not necessary to probate the will. But events compelled its tender for probate. A number of the other children of Nancy Goldsberry filed a petition for an administration of her estate. They set up her death, the fact that she owned property, and that they were informed there was a will in favor of C. A. Goldsberry but that said will was made through fraud and duress and therefore Nancy Goldsberry died intestate. C. A. Goldsberry thereupon filed in the same proceeding objections to the appointment of an administrator on the grounds that there existed a will. He in the same petition set up facts regarding the making of the will, alleged it to be a valid will and with the petition filed the will and asked that it be probated. To this petition, Jessie L. Green, a granddaughter of Nancy and daughter of C. A. Goldsberry, filed a reply in which it was alleged in paragraph 3 as follows:
Nothing in the reply shows her relationship with the proponent of the will or with decedent. The reply simply reads: "Comes now Jessie L. Green, and for a reply," etc. C. A. Goldsberry demurred to the reply on the following grounds:
The court overruled the demurrer at the threshold of the trial. There was no argument. The contestant's pleading did not show whether or not contestant was an heir. It is contended that the above demurrer reached such deficiency. The writer doubts whether it did. His associates think that it did. The question is a refined one. In most jurisdictions the statutes provide that any interested party may contest the probate of a will. It has generally been held that this precludes any but an interested party from contesting a will. Werner v. Frederick, 68 App. D.C. 158, 94 F.2d 627, 630; In re Carlson's Estate, 153 Ore. 327, 336, 56 P.2d 347; In re Santini's Estate , 56 Nev. 350, 53 P.2d 338; Jensen v. Hinderks, 338 Mo. 459, 92 S.W.2d 108; In re Meredith's Estate, 275 Mich. 278, 292, 266 N.W. 351, 104 A.L.R. 348; Burk v. Morain, Iowa, 223 Iowa 399, 272 N.W. 441, 112 A.L.R. 79; In re Browning's Will, 274 N.Y. 508, 10 N.E.2d 522; In re Morrow's Will, 41 N.M. 723, 735, 73 P.2d 1360; Austin v. Patrick, 179 Miss. 718, 176 So. 714; Reed v. Home National Bank, Mass., 297 Mass. 222, 8 N.E.2d 601, 112 A.L.R. 657; Succession of Feitel, 187 La. 596 at 596-618, 175 So. 72; In re Stoiber's Estate, 101 Colo. 192, 72 P.2d 276, 112 A.L.R. 1416; In re Sycle's Estate, 195 A. 857, 16 N.J.Misc. 23; Guilfoil v. Hayes, Va., 169 Va. 548, 194 S.E. 804. Our statute, Sec. 102-3-7, R. S. Utah 1933, reads, insofar as here material: "If any one appears to contest the will," etc. Thus, our statute does not in terms require the person appearing to contest the will to be an heir; but the case of In re Dong Ling Hing's Estate, 78 Utah 324, 2 P.2d 902, infers that the contestant must be an heir. That case states (page 903):
"If he is an heir of the deceased he undoubtedly has a right to contest the will, but if not he is a stranger to the proceeding."
We assume, therefore, that the law in this State is that a contestant should be an interested party. If he or she must be an interested party and the contest fails to show whether or not the contestant is an interested party, is the omission reachable by general demurrer? My associates reason that since only an interested party may contest, the contestant must affirmatively plead and prove his interest in order to state a cause for contest. It must be admitted that there is authority to this effect. Cummings v. Keach, 146 Kan. 157, 68 P.2d 1089, 110 A.L.R. 1235; Gruender v. Frank, 267 Mo. 713, 719, 186 S.W. 1004; Smith v. Smith, 327 Mo. 632, 37 S.W.2d 902; Jackson v. Jackson, 84 W.Va. 100, 106, 99 S.E. 259; State v. McQuillin, 246 Mo. 674, 152 S.W. 341, Ann. Cas. 1914B, 526; Haines v. Little, Tex. Civ. App., 242 S.W. 266, 268; Ocobock v. Eeles, 37 A.D. 114, 55 N.Y.S. 1118, 1120; Henriques v. Yale University, 28 A.D. 354, 51 N.Y.S. 284; Jensen v. Hinderks, supra.
In Smith v. Smith the Missouri court said at page 904 of 37 S.W. 2d:
"We have heretofore held, in Gruender v. Frank, 267 Mo. 713, 186 S.W. 1004, that in a will contest the facts showing contestant's interest and consequent right to maintain the suit are constitutive elements of the statement of plaintiff's cause of action, and, if not stated in the petition, the petition fails to state facts sufficient to constitute a cause of action * * *."
The writer differs in this regard and shall briefly state his reasons. The cases holding that the contest must affirmatively show that the contestant is an interested party evidently apply the principle that in a case where one sues another be must show that the right of action is in him. To state a cause of action, he must not only show a right on someone's part and a violation of that right by defendant, but must show that the right which has been violated by defendant was a right in him, the party asking for recovery. There is ample authority to support this principle. Hunt v. Monroe, 32 Utah 428, 91 P. 269, 11 L.R.A., N.S., 249; Cummings v. Keach, 146 Kan. 157, 68 P.2d 1089, 110 A.L.R. 1238; Rills v. Shell Petroleum Corp., 177 La. 906, 149 So. 515; Trahan v. State Highway Comm., 169 Miss. 732, 752, 151 So. 178; Townsend v. Harmon, 5 W. W. Harr. 562, 568, 35 Del. 562, 568, 171 A. 178; Rapp v. Oklahoma Tax Comm., 166 Okla. 210, 213, 27 P.2d 157; Ideal Brick Co. v. Gentry, 191 N.C. 636, 132 S.E. 800; First Nat. Bank v. Eddy, 47 S.D. 297, 198 N.W. 554; Toner v. Wagner, 158 Ind. 447, 63 N.E. 859; American Trust & Sav. Bank v. McGettigan, 152 Ind. 582, 586, 52 N.E. 793, 71 Am. St. Rep. 345; Niemi v. Stanley Smith Lumber Co., 77 Or. 221, 235, 147 P. 532, 149 P. 1033, 1035; Higgins v. Swygman, 194 Ind. 1, 7, 141 N.E. 788; Asplund v. Hannett, 31 N.M. 641, 642, 249 P. 1074, 58 A.L.R. 573.
"It is elementary that a complaint good in law must not only state a complete cause of action against the defendant, but it must also show a right of action in the plaintiff." Hunt v. Monroe, 32 Utah 428, 435, 91 P. 269, 271, 11 L.R.A., N.S., 249.
But there is a distinction between a cause of action wherein one seeks to obtain a judgment which requires another to make restoration either by money payment or by doing a positive act or desisting from doing an act, and a judgment which decides whether a thing exists or not. The proceeding to probate a will involves the issue only as to whether the document offered is or is not that thing which the law denominates a will. The notice of hearing is notice to all the world that such issue is to be adjudicated. It is not an invitation to the world to contest the will, but a notice to all those in the world who are interested and claim the document not to be a will to come in and say so. But if...
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True v. Older
...to state the facts rather than conclusions of law imposes no hardship upon him. As the court said in Re Goldsberry's Estate, 95 Utah 379, 388, 81 P.2d 1106, 1110, 117 A.L.R. 1444, where allegations, that a will was obtained by influence" which the testator was "forced and required to sign,"......
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True v. Older, 34682.
...state the facts rather than conclusions of law imposes no [34 N.W.2d 705]hardship upon him. As the court said in Re Goldsberry's Estate, 95 Utah 379, 388, 81 P.2d 1106, 1110, 117 A.L.R. 1444, where allegations, that a will was obtained by ‘undue influence’ which the testator was ‘forced and......
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True v. Older
...state the facts rather than conclusions of law imposes no [34 N.W.2d 705] hardship upon him. As the court said in Re Goldsberry's Estate, 95 Utah 379, 388, 81 P.2d 1106, 1110, 117 A.L.R. 1444, where allegations, that a will was obtained by 'undue [227 Minn. 163] influence' which the testato......
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In re Cloward's Estate
... ... relative or creditor in the state, and that the application ... was made by a party in interest" goes to averments ... needed to state a good cause for the appointment of an ... administrator and not to the court's power to appoint ... See, In re Goldsberry's Estate, Goldsberry v ... Green , 95 Utah 379, 81 P.2d 1106 ... And ... thus it is with other statements in the prevailing opinion ... All that can be done in this dissent is to utter a warning ... that may in the future prevent some confusion of thought ... which such ... ...