In re Stoiber's Estate

• Citation: 72 P.2d 276,101 Colo. 192
• Decision Date: 13 September 1937
• Docket Number: 14004.
• Parties: In re STOIBER'S ESTATE. v. BOOTH. DOMINGUEZ
• Court: Supreme Court of Colorado

72 P.2d 276

101 Colo. 192

In re STOIBER'S ESTATE.

DOMINGUEZ v. BOOTH.

No. 14004.

Supreme Court of Colorado

September 13, 1937

Rehearing Denied Oct. 11, 1937.

In Department.

Error to County Court, City and County of Denver; G. A. Luxford Judge.

Contest by Magdalena Catherine Dominguez of the will of Lena Allen Stoiber, deceased, offered for probate by A. S. Booth executor of the last will and testament of Lena Allen Stoiber (sometimes known as Lena Allen Stoiber Ellis), deceased. To review a judgment sustaining a demurrer to her caveat and admitting the will to probate, caveatrix brings error.

Reversed and remanded, with directions.

Henry H. Clark, of Denver, and Charles B. Barker of Santa Fe, N. M., for plaintiff in error.

Adams &amp Gast, of Pueblo, Dines, Dines & Holme and Harold D. Roberts, all of Denver, Sam Parlapiano, of Pueblo, and J. Churchill Owen, of Denver, for defendant in error.

YOUNG Justice.

The will of Lena Allen Stoiber, deceased, was offered for probate in the county court of the City and County of Denver. Magdalena Catherine Dominguez, who was not mentioned in the will, filed a caveat. Proponent demurred. To reverse the judgment sustaining the demurrer and admitting the will to probate a writ of error is prosecuted in this court. Reference will herein be made to plaintiff in error, caveatrix in the county court, as Mrs. Dominguez, or contestant, and to defendant in error as proponent.

The facts before us on this review are those contained in the caveat, admitted by the demurrer, and are set forth in the abstract of record as follows:

'1. Caveatrix is the natural daughter of the late Wilhelm Hoffman and the late Louisa Hoffman of Cape Girardeau, Missouri.

'2. That on or about October 10, 1891, when caveatrix was about 12 years of age and living with her said widowed mother at Cape Girardeau, the decedent, Mrs. Stoiber, the wife of Edward G. Stoiber, entered first into a verbal agreement and understanding with Mrs. Hoffman, the mother of caveatrix, that she (Mrs. Stoiber) would adopt the caveatrix as her daughter and would assume the future care, custody, control, maintenance and education of caveatrix and leave her, at her death, 'a daughter's share of her estate,' and that in consideration of such agreement Mrs. Hoffman should surrender all of her parental rights with respect to caveatrix, including her future, care, custody, control, companionship, maintenance and education.

'3. That pursuant to said agreement and understanding, and to evidence the same, Mrs. Stoiber executed in the presence of witnesses and delivered to Mrs. Hoffman a written declaration worded as follows:

"Cape Girardeau, Mo., October 10th, 1891, Saturday, A. M.:

"Lena Allen Stoiber took for adoption Magdalena Catherine Hoffman to enjoy the Stoiber home as her own for life and be entitled to a daughter's share at my death.

"Lena Allen Stoiber.'

"Witnesses:

"Dr. A. Berg, Mary Berg,

"Sally Frederick, John Frederick."

'4. That Mrs. Hoffman thereupon surrendered caveatrix to the decedent for the remainder of her (the mother's) life.

'5. That thereupon decedent took caveatrix from her mother's home and assumed her care, custody, control, maintenance and education, and until the marriage of caveatrix to the late Esteban Dominguez in 1903, performed the assumed obligations and enjoyed and had the benefit of the society and companionship of caveratrix, regarded and treated her as her own daughter and so introduced her to her friends and relatives; that from the time of her adoption until her marriage caveatrix, with decedent's knowledge and consent, was known as Magdalena Catherine (or 'Chubby') Stoiber.

'6. That Edward G. Stoiber, decedent's husband, had full knowledge of all the foregoing matters and the same were done and performed with his consent and approval, and that he also regarded and treated caveatrix as his own daughter.

'7. That from October 10, 1891, until her marriage in 1903, caveatrix fully performed all the obligations resting upon her under said agreement and rendered to decedent and her husband the respect and obedience due from a child to its parents; complied with their wishes and directions as to her education; afforded decedent and her husband the benefit and satisfaction of her companionship and society in so far as decedent's and her husband's living and traveling arrangements and habits permitted; and generally conducted herself toward decedent and her husband as a dutiful child, and as if she had been born to, or legally adopted by, them.

'8. That decedent violated said agreement in that she failed and neglected to take and perfect formal proceedings for the legal adoption of caveatrix, and further violated the same by executing and attempting to give testamentary effect to the document above referred to as her last will and testament in that she did not leave caveatrix 'a daughter's share' nor any share of her estate, and wherein and whereby, though a widow and without surviving children, she attempted to leave her entire estate to other persons than the caveatrix.

'III. Specific Objections to Probate of Will (as set forth in caveat):

'1. That decedent did not execute the document freely and voluntarily, but was moved thereto by undue influences and persuasions over her by certain persons (at present unknown to caveatrix) and who were either adverse to, or ignorant of, the rights of caveatrix as such adopted daughter.

'2. The contents of said will are illegal and prejudicial to the rights of caveatrix and that she is, and has been ever since October 10, 1891, the adopted daughter of decedent, and in that decedent was from said date bound by the contract above referred to not to disinherit caveatrix and in that decedent wholly disregarded the rights of caveatrix, and in that at the time of making said will, and at the time of decedent's death, decedent was bound by said contract either by her will to leave all of her estate to caveatrix, or during her lifetime to legally adopt caveatrix so that she might succeed to decedent's estate as such adopted daughter under the laws of descent and distribution, all of which rights of caveatrix it is incumbent upon this court (the county court), upon proof of the facts alleged, to recognize and specifically to enforce.

'3. Prayer of Caveat. Caveatrix prayed for relief as follows: That the hearing on the probate of the will be postponed until after the issues raised by the caveat have been heard and determined; that upon hearing and trial of said issues, a decree be entered holding (1) that decedent's will in its entirety is null and void and ordering the estate to be administered as in cases of intestacy; and (2) that caveatrix is the sole surviving heir at law of decedent and as such entitled to all of decedent's estate.'

The demurrer was on the following grounds:

'(1) That 'Caveat and Objections' do not state facts sufficient to show 'invalidity or illegality' and (2) that said caveatrix has no legal capacity to sue or to contest said will or object to the legality of its contents 'since it appears on the face of the caveat that she was not legally adopted by the decedent and is not an heir, and that there is in said caveat no allegation that any other will exists or was ever executed in which the caveatrix is or was named as a devisee or legatee.''

When an issue arises as to the caveator having sufficient interest to maintain a contest it is to be tried as provided by section 5212, C.L.1921, which is as follows: 'In any will contest instituted after the passage of this act in which an issue is made by the proponent of the will, which issue raises the question of heirship or interest of the caveator or the right of the caveator to maintain the will contest upon any ground, the court shall, upon motion of the proponent, order such issue severed and shall try and determine such issue without delay before proceeding to try and determine the remaining issues. Such issue shall be tried and determined in the manner now provided for the hearing and determination of heirship in an estate in process of settlement in the county court; and, upon such trial, if such issue shall be determined adversely to the caveator, then the will contest shall be forthwith dismissed as to such caveator.' The foregoing statute was a separate act of the General Assembly entitled 'An Act In Relation To The Practice In Will Contests.' S.L.1917, p. 550.

We are cognizant of the purpose of will contests which is well stated in Ford v. Donahue, 95 Colo. 250, 35 P.2d 850, 851, in an approved quotation from 28 R.C.L. p. 393, § 401, as follows: 'The purpose of a proceeding to contest a will is to divest 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.' Unless the contestant will take or may take by an adjudication that the will in question in invalid he had not sufficient interest to give him legal standing to contest its validity.

Under the foregoing statement of the rule the question as to the capacity of Mrs. Dominguez to maintain her contest may be stated simply: In the absence of a will would Mrs. Dominguez be entitled to an interest in the estate of deceased as an heir at law?

Counsel for proponent concede in their brief:

'First, that a valid contract of adoption can be made, that such an agreement may be oral, and that an action for its breach will lie. * * *

'Second, that a clear and unambiguous agreement by a decedent to leave a child any permissible but definite part of an estate is a contract of inheritance and will be specifically enforced. * * *

'Third that a contract not to disinherit an adopted child and a provision in...