In re McCardle's Estate
| Decision Date | 25 June 1934 |
| Docket Number | 13354. |
| Citation | 35 P.2d 850,95 Colo. 250 |
| Parties | In re McCARDLE'S ESTATE. v. DONAHUE. FORD |
| Court | Colorado Supreme Court |
In Department.
Error to Pueblo County Court; Hubert Glover, Judge.
Will contest by Grace McArdle Ford against Josephine B. Donahue. To review a judgment of dismissal of plaintiff's caveat plaintiff brings error.
Affirmed.
W. O Peterson, of Pueblo, for plaintiff in error.
A. T Stewart, of Pueblo, for defendant in error.
Judgment of dismissal of caveat to a will. Error is assigned.
It appears that one Mary O'Rourke McCardle, or McArdle, departed this life August 21, 1932; that she left a last will and testament in which Josephine B. Donahue was made sole devisee and legatee; that to Mrs. Donahue's petition for admission of the will to probate, Grace McArdle Ford, alleging that she was decedent's stepdaughter, filed a caveat, in which she charged that 'decedent did not possess the requisite mental capacity to make a will at the time of the purported execution of the will offered for probate'; that to the caveat the proponent of the will demurred on the ground it appeared the caveator did not have legal capacity to object to the probate of the will, which was sustained; that caveator elected to stand on her caveat, and suffered the judgment of which she complains.
We think the court did not err. 'The purpose of a proceeding to contest a will is to devest the legatees and devisees of rights in the estate of the testator, and vest the property in his heirs at law, or in the beneficiaries named in another will.' 28 R.C.L. p. 393, § 401. See, also, In re Shapter's Estate, 35 Colo. 578, 586, 85 P. 688, 6 L.R.A. (N. S.) 575, 117 Am.St.Rep. 216; Braeuel v Reuther, 270 Mo. 603, 193 S.W. 283, L.R.A. 1918A, 444, Ann.Cas. 1918B, 533. The allegations of the caveat show that had decedent died intestate, caveator did not sustain relation to the decedent entitling her to an interest in the estate under the statute of descents and distributions. C. L. 1921, § 5151. There was absence of allegation of the existence of another will. It is true, as claimed, that section 5211 does not say that one contesting a will must show legal interest in the estate of which the proffered will makes disposition, but such legislative intent appears from section 5212, for there provision is made for the trial of preliminary issues, among which the 'interest of the caveator' is mentioned. Interest in the estate must appear. 28 R.C.L. p. 386, § 389. See, also, Wilson v. Van Zant, 85 Colo. 276, 275 P. 905. Since, as we have seen, caveator's objections to the will made...
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Jones v. Barlow
...will by either the person thus standing in loco parentis or by the child." To the same effect is this language from In re McCardle's Estate [95 Colo. 250, 35 P.2d 850 (1934) ]: "It (loco parentis) is not, as argued, to be likened to that of adoption. The one is temporary in character, the o......
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...as argued, to be likened to that of adoption. The one is temporary in character, the other permanent and abiding.' In re McCardle's Estate, 95 Colo. 250, 35 P.2d 850, 851. Directly in point factually is the Montana case of State ex rel. Sheedy v. District Court, 66 Mont. 427, 213 P. 802, 80......
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Taylor v. Taylor
...will by either the person thus standing in loco parentis or by the child.' To the same effect is this language from In re Estate of McCardle, 95 Colo. 250, , 35 P.2d 850, 851: 'It [loco parentis] is not, as argued, to be likened to adoption. The one is temporary in character, the other perm......
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Chapter 4 - § 4.5 • INTEREST OF THE OBJECTOR — STANDING
...C.R.S. § 13-9-102.[22] Estate of Stoiber, 72 P.2d 276 (Colo. 1937); Will of Magne, 1 Colo. Nisi Prius Dec. 322.[23] Estate of McCardle, 35 P.2d 850 (Colo. 1934).[24] Estate of Field, 238 P.2d 578 (Cal. 1952); Annot. 129 A.L.R. 324.[25] Field, 238 P.2d 578.[26] Annot. 58 A.L.R. 1462.[27] Ann......
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Chapter 53 - § 53.7 • STANDING AND FIDUCIARY NEUTRALITY
...Colorado courts have held that a stepchild is not an heir and that such a relationship cannot support a contest. Estate of McCardle, 35 P.2d 850 (Colo. 1934). Where an heir or devisee dies after initiating a challenge to a will, but prior to the final determination on the will contest, his ......
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Chapter 53 - § 53.7 • STANDING AND FIDUCIARY NEUTRALITY
...Colorado courts have held that a stepchild is not an heir and that such a relationship cannot support a contest. Estate of McCardle, 35 P.2d 850 (Colo. 1934). Where an heir or devisee dies after initiating a challenge to a will, but prior to the final determination on the will contest, his ......
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Chapter 29 - § 29.7 • STANDING — DOCTRINE OF FIDUCIARY NEUTRALITY
...of the estate, in proceedings brought under this code. --------Notes:[23] C.R.C.P. 12(b).[24] C.R.S. § 15-10-302.[25] Estate of McCardle, 35 P.2d 850 (Colo. 1934).[26] Estate of Field, 238 P.2d 578 (Cal. 1951).[27] C.C. Marvel, "Right of Executor or Administrator to Contest Will or Codicil ......