In re Paulsen's Estate

Decision Date19 March 1945
Docket Number15263.
Citation158 P.2d 186,113 Colo. 373
CourtColorado Supreme Court
PartiesIn re PAULSEN'S ESTATE. v. COLORADO NAT. BANK OF DENVER et al. PITMAN et al.

Rehearing Denied April 30, 1945.

In Department.

Error to District Court, City and County of Denver; Henry S Lindsley, Judge.

Proceeding in the matter of the estate of August H. Paulsen, deceased. A petition was filed by the Colorado National Bank of Denver as executor of the estate of August H. Paulsen, deceased against Cleo Pitman, Mamie Clark, Ruth Clark, Helen Prentiss and others, for construction of the will. To review an adverse judgment, the named defendants bring error.

Reversed and remanded with instructions.

Darwin D. Coit and Karl E. Swanburg, both of Denver, for plaintiffs in error.

Fred W. Mattson and A. B. Mattson, both of Denver, for defendants in error Paulsens and Lippold.

ALTER Justice.

In this proceeding the Colorado National Bank of Denver as executor of the estate of August H. Paulsen, deceased, filed its petition for a construction of the last will and testament of decedent.

The last will and testament reads as follows:

'A. H. Paulsen 1375 Lincoln St. Apartment 33 Denver, Colorado

September 24th. 1940

'To whom it may concern,

'Greeting:----
'I the undersigned, August H. Paulsen, now residing at 1375 Lincoln Street, Apartment 33, Paramount, apts in the city and county of Denver, and State of Colorado, being in good bodily health, and of sound and disposing mind and memory, but realizing the uncertainity, of this mortal life, do make, publish and declare, this instrument of writing, my last will and testament, that is to say.
'I will devise, and bequeath, unto my
'Brother Robert E Paulsen; 415 East Adams Boulevard, Los Angeles, Calf.
'Brother Richard J. Paulsen Sr; 3778 Drakewood Drive, Cincinnati, Ohio.
'Nephew, Richard J Paulsen Jr; 2991 Observatory Ave, Cincinnati, Ohio.
'Neice, Mrs. Dora Lippold, 2901 Urwiler Avenue, Cincinnati, Ohio.
'After payment of all legal and funeral expences, I bequeath unto my loyal housekeeper Mrs. Wilma Chavez, Five Thousand Dollars; To my good friend Harry Kumpf, barber in the Symes Bldg. Denver, Colo. the sum of ($1000) One Thousand Dollars.
'To Euclid Lodge No; 64 A. F. & A. M. of La Junta Colorado the sum of One Thousand Dollars. After payment of these latter three, the balance of the finances derived from the sale of stock certificates which are contained in my safety deposit box, of the Colorado National Bank Vault, shall be prorated among my relatives, named above. Should any one of my relatives, or any one contest this will, they shall be eliminated forthwith; should any be deceased, their legal heirs will not participate, as that proportion shall be devided among those living. I shall endeavor while alive to pay some of the latter three, and if I do I will attach receipts hereto.
'A H Paulsen 1375 Lincoln St. Denver, Colo.

Sheet number two.

'My personal property, household furniture etc; is to be divided among my wife's neices; with the exception of the telephone desk and chair which I have promised to Mrs. E V Rees of 954 South Gaylord Street Denver Colorado.

'The addresses of my deceased wife's neices are as follows:----

'Mrs. Cleo Pitman, 827 East Fourth Ave. Pueblo, Colorado;

'Mrs, Mamie Clark, 930 Tascosa Street, Trinidad Colorado;

'Mrs. Ruth Clark, Weston Colorado, R F D Route One Box 18

'And Mrs Helen Prentiss, Los Angeles California; who is sister to Mrs Cleo Pitman; not forgetting my loyal housekeeper Mrs Wilma Chavez

'I appoint the Colorado National Bank as my Executor; under the regulation as to bond etc.

August H Paulsen

'Witness----

'Mrs E. V. Rees

'Elmer V. Rees'

In the petition the Colorado National Bank clearly set forth its construction in the following language: '4. That your petitioner is advised by its counsel and believes that a reasonable interpretation of decedent's Will is as follows: The decedent first classified his property into two categories: (1) personal effects such as furniture and jewelry; (2) investments. The first classification he bequeathed to Mrs. Reese and his wife's nieces by the provision on the second page of his Will. From the sale of his investments, which he thought of in terms of the stock certificates in his Safe Deposit Box, he provided that three specific legacies of $5000.00, $1000.00 and $1000.00 respectively should be paid, the residue then to be divided equally between his two brothers and his nephew and niece named first in his Will.'

The brothers, nephew and niece of decedent filed their reply, concurring in the construction of the Colorado National Bank as hereinBefore set forth in paragraph 4. The nieces of decedent's deceased wife filed an answer to the executor's petition in which they alleged that under the provisions of the will title to all personal property of decedent was in them, excepting only 'the finances derived from the sale of stock certificates which are contained in my safety deposit box, of the Colorado National Bank Vault.'

The property in question between the claimants under the last will and testament of August H. Paulsen appears inventoried by the Colorado National Bank as follows:

"Otero Savings and Loan

Association of La Junta,

Colorado, Savings Account ... $8,468.10

Midland Savings and Loan

Association of Denver,

Investment Shares Account ...... 500.00

Colorado National Bank,

Savings Account .................. 5.00

First National Bank, Denver,

Savings Account .................. 1.61

Cash found in apartment ............ 1.48

---------

Total $8,976.19 "

The county court entered its judgment in accordance with the construction of the Colorado National Bank as hereinBefore set forth in paragraph 4.

Upon appeal to the district court, the evidence disclosed that decedent, who died on April 18, 1941, drew his own will, and his estate consisted entirely of personal property of the value of approximately $40,000, of which approximately $9,000 only is involved here. The inventoried value of the household furniture, jewelry and other personal effects found in decedent's apartment was $235. There were also some worthless stocks found in the apartment.

The evidence further disclosed that the Otero Savings and Loan Association item was evidenced by the small passbook in decedent's possession at his apartment rather than in his safety deposit box and was designated on the passbook 'Share Account Book.' On the inside of the passbook was the following notation:

'No. of Shares 120 Type Savings Acc't No. L-82 Luna B. Paulsen and A. H. Paulsen as joint tenants with right of survivorship and not as tenants in common

In Account With Otero Savings and Loan Association La Junta, Colorado'

One of the inner pages of the 'Share Account Book' contains a reference to 'Savings Share Certificate' and on another the 'Share Account Book' is referred to as a certificate. Other than the 'Share Account Book' there is no stock certificate as that term is commonly used and understood.

The assistant trust officer of the Colorado National Bank produced a certificate in the Midland Savings and Loan Company, indicating that decedent had been 'the owner of Five (-5) Shares of the Par Value of One Hundred Dollars per Share of the Fully Paid Investment Capital Stock of The Midland Savings and Loan Company.' The testimony disclosed that the Midland Savings and Loan Company subsequently federalized and was known as the Midland Federal Savings and Loan Association. The certificate in the Midland Savings and Loan Company was cancelled, and there was issued in lieu thereof a passbook which was found in decedent's apartment and not in his safety deposit box. This passbook had noted on it 'Investment Account No. 45341 Name of Member August H. Paulsen' together with other language pertaining to an 'Investment Account.' The transaction between the Midland Savings and Loan Company and the Midland Federal Savings and Loan Association was inventoried under the name of Midland Savings and Loan Association, and by that name we shall herein refer to it.

The president of the Midland Savings and Loan Association testified that nine out of ten of their depositors or members treated their business transactions with the company as a savings account in spite of everything that the company could do to dissuade them.

There was no evidence whatever indicating that decedent had ever placed the Otero Savings and Loan Association 'Share Account Book' or the Midland Savings and Loan Association 'Investment Account Book' in his safety deposit box.

The district court, as did the county court, entered its judgment in favor of the construction of the Colorado National Bank in paragraph 4 of its petition, hereinBefore set forth, finding: 'The court further finds that although these items [hereinBefore set forth in the inventory] were not found within the safety deposit box of the testator, that nevertheless the words 'in my safety deposit box,' in this particular case are words of description rather than of limitation.'

To review the judgment of the district court, the nieces of decedent's deceased wife prosecute this writ of error.

The specification of points upon which the decedent's deceased wife's nieces rely for a reversal may be summarized: The court erred in construing the will herein and in holding that the Otero Savings and Loan Association 'Share Account Book' and the Midland Savings and Loan Association 'Investment Account' found in decedent's apartment were stock certificates, and passed to the brothers, niece and nephew under the provisions of the will.

There are certain well recognized and general principles to be followed in...

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  • Purifoy v. Mercantile-Safe Deposit and Trust Co., Civ. A. No. 72-1040-N.
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    ...in a manner similar to rebuttable presumptions. These rules have their origin in prior decisional law (see, e. g., In re Paulsen's Estate, 113 Colo. 373, 158 P.2d 186 (1945) (presumption against intestacy); Fleshner v. Fleshner, 378 Ill. 536, 39 N.E.2d 9 (1941) (presumption in favor of earl......
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  • IN RE ESTATE OF LEWIS
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    ...will itself and, if the intent is not contrary to some positive rule of law or public policy, give it effect. In re Estate of Paulsen, 113 Colo. 373, 379, 158 P.2d 186, 189 (1945); In re Estate of Peppler, 971 P.2d 694, 696 (Colo.App.1998). Because construction of a will is a question of la......
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7 books & journal articles
  • Chapter 32 - § 32.5 • DETERMINE INTENT FROM WORDS USED
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