In re Pilcher's Estate

• Decision Date: 26 August 1948
• Docket Number: 7145
• Citation: 114 Utah 72,197 P.2d 143
• Parties: In re PILCHER'S ESTATE. v. PILCHER VON PILCHER
• Court: Utah Supreme Court

197 P.2d 143

114 Utah 72

In re PILCHER'S ESTATE.

VON PILCHER v. PILCHER

No. 7145

Supreme Court of Utah

August 26, 1948

Appeal from District Court, First District, Cache County Marriner M. Morrison, Judge.

In the matter of the estate of William Pilcher, deceased, in which Mabel Von Pilcher filed an objection to the final account and distribution petition of Mildred Ruth Pilcher, administratrix of the estate, and a petition for removal of the administratrix and issuance of letters of administration to petitioner. From a judgment revoking and cancelling respondent's letters of administration, she appeals.

Judgment set aside, and case remanded with directions.

Leon Fonnesbeck, of Logan, for appellant.

Bullen & Bell, of Logan, for respondent.

Pratt Justice. McDonough, C. J., and Wolfe, and Latimer, J concur. Wade, Justice, concurring.

OPINION

Pratt, Justice.

This action is in the form of a petition for removal of administratrix and for letters of administration. The lower court found for the contestant, and by its decree revoked and cancelled letters of administration theretofore issued to the administratrix, Mildred Pilcher, who prosecutes an appeal to this court.

Mildred Pilcher was duly appointed administratrix of the estate of William Pilcher, deceased, as his surviving widow. In her petition for letters of administration she named as heirs, besides herself, three children of William Pilcher by a former marriage. During the course of administration, Lee Brown who was the son of Mabel Von Pilcher and William Pilcher, came to Mildred purporting to represent all the children of Mabel Von Pilcher and William Pilcher and insisted upon a settlement with her on behalf of the heirs. Under this settlement agreement Mildred paid him the sum of $ 3,000.00 and certain personal property belonging to the decedent. Mildred proceeded to administer the estate up to and including a petition for settlement of final account. Notices for petition for "Settlement of Final Account and Distribution of Estate" were duly mailed to the named heirs. Thereafter, the contestant, Mabel Von Pilcher, through her attorney filed an "Objection to Final Account and Petition for Distribution" and also served and filed a petition for "Removal of Administratrix and for Letters of Administration." No notice of this latter petition was given to the heirs.

The facts as revealed by the testimony and exhibits indicate that the deceased married Mabel Von Pilcher in Lyon County, Kansas in 1901. Thereafter they lived as husband and wife for several years at Hartford, Kansas, during which time six children were born to them, four of whom are now living. The parties separated in 1925. Thereafter the parties were in contact with each other to some extent, and as testified to by Mabel Von Pilcher on cross-examination, he told her he had divorced her. In 1926, apparently in reliance upon what the deceased told her regarding a divorce, Mabel Von Pilcher began living with one Hal F. Showers, ostensibly as his wife, although she denied at the trial that she was his wife.

The decedent and Mildred Pilcher were married June 21, 1941, at Logan, Utah. At that time decedent was fifty-nine years of age, and Mildred was nineteen. Mildred testified that decedent told her he had not been married, but that about one month after their marriage she discovered his prior marriage, at which time he assured her that he had secured a divorce. His explanation, as testified to by Mildred, was that he was afraid that if he told her before, she would not have married him.

For some time during the years 1942 and 1943, Mildred Pilcher and the deceased lived in California, and Mabel Von Pilcher and Hal F. Showers, holding themselves out as husband and wife, also lived in California, and the two families became fairly well acquainted, visiting each other at intervals, and living in close proximity to each other.

Mabel Von Pilcher testified that while the families were living in California, the decedent came to her and informed her that he had never divorced her. In addition, she testified that she had never divorced him, and had received no papers in any divorce action begun by him. It is on this basis that she seeks to sustain her petition for removal of administratrix, on the ground that she, not Mildred, is the widow of the deceased, and as such entitled to letters of administration.

The appellant presents several assignments of error, some of which relate to the acquisition and repair of certain properties, and are clearly not within the issues of this contest. Of the other issues, we believe the issue of estoppel and that raised as to burden of proof are determinative of this appeal.

Before proceeding however to these matters, we have before us preliminarily a matter raised by the appellant relative to the admission of certain testimony given by Mabel Von Pilcher. She testified to a conversation held with the decedent in 1943 wherein he indicated to her that he had never divorced her. It is contended by the appellant that this testimony should not have been admitted, being a violation of Section 104-49-2, U. C. A. 1943, frequently spoken of as the "Dead Man Statute." This was not however an action against the estate in any sense. The contest is to determine the respective rights of the parties in relation to the estate. It was not error under the cited statute to allow the contestant to testify as she did. See Miller v. Livingstone, 31 Utah 415, 88 P. 338, and an article by Mr. Justice James H. Wolfe, 13 Rocky Mountain Law Review 282, (June, 1941) reprinted in the Utah Bar Bulletin, Vol. XI, Nos. 7 & 8, July-August, 1941, discussing this problem.

Section 102-4-1, U. C. A. 1943, provides the order of priority as to parties who are entitled to administration of the estate of a decedent. Sec. 102-4-3, U. C. A. 1943, provides that letters must be granted to any interested applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear within three months after the death of the decedent and claim the issuance of letters to themselves. In the case In re Smith's Estate, 85 Utah 606, 40 P. 2d 180, this court held that after the three month period has expired the person who was entitled to preference has thereafter no greater right to administer than does any other competent qualified person. This being so, it appears that Mabel Von Pilcher does not stand in a position where she herself would be entitled as of right to lay claim to the administration of the estate, since admittedly more than five months had expired since the death of William Pilcher before any action was taken by her.

Aside from this however, the fact that Mabel Von Pilcher admitted knowing of the death of William Pilcher soon after it occurred; the fact that she lived with her daughter, Bernice Shaffer, who received notice of the application by Mildred Pilcher for letters of administration, and thus we may safely assume knew of Mildred's petition; that she also admitted some knowledge of the settlement agreement proposed by her son, Lee Brown, and actually put into effect between Lee and Mildred, as administratrix (Mabel Von Pilcher was present in the home of her daughter Bernice Shaffer when Lee called Bernice after having effected the settlement with Mildred); and the fact that she stood by while Mildred administered the estate up to a petition for final distribution, constitute a basis for holding that she has thus acquiesced in the administration of the estate, by Mildred, and she may not now come forward and raise the question of Mildred's capacity to administer. 21 Am. Jur. 444, Sec. 119, states the rule as follows:

"* * * one entitled to administration, who stands by with knowledge of the application of another for appointment and the fact that he is administering upon an estate, is estopped to assert his prior right and claim the appointment made to be invalid."

A similar rule is expressed in 33 C. J. S., Executors and Administrators, § 72, page 997, as follows:

"Heirs or next of kin, by acquiescing in the appointment of an administrator, may be estopped to question the propriety of making the appointment."

See also Manning v. Leighton, 65 Vt. 84, 26 A. 258, 24 L. R. A., 684, and Mitchell v. Dreher, 150 S.C. 125, 147 S.E. 646, to the same effect.

At the conclusion of the arguments, after testimony was in, the court had this to say:

"I think the question that's before the court is whether or not the administratrix of the estate of William Pilcher is entitled to letters of administration, whether she's the heir of William Pilcher. Now as I understand the law, when a contest is filed such as a contest in this case where it alleges that the administratrix is not the widow of the deceased and is not an heir at law, then I think the burden is upon the administratrix to show that first. In this case there is no doubt, there can't be any doubt of the marriage between Mr. Pilcher and his first wife, the contestant. That has been proved by her own evidence, and if that relationship was once established, then I believe that the burden is upon the purported administratrix to show that that relationship has terminated, that she is in fact the widow of the deceased and an heir at law."

From this excerpt it is apparent that the trial court regarded the administratrix as having the burden to prove a divorce between the decedent and Mabel Von Pilcher. In support of this proposition, respondent cites the case In re Peters' Estate, 1923, 73 Colo. 271, 215 P. 128, 33 A. L. R. 24, which case held that the burden of proving a marriage is on the person seeking to qualify as administratrix, and that this same burden is upon one whose...