In re Sullivan's Estate
| Decision Date | 26 June 1939 |
| Docket Number | 14472. |
| Parties | In re SULLIVAN'S ESTATE. v. SULLIVAN'S ESTATE et al. MAHONEY |
| Court | Colorado Supreme Court |
In Department.
Error to Weld County Court; Robert G. Strong, Judge.
Proceeding in the matter of the estate of Margaret F. Sullivan deceased, by Muriel Theresa Mahoney, opposed by the estate of Margaret F. Sullivan, deceased, and another, wherein Muriel Theresa Mahoney filed a petition to vacate a judgment admitting the deceased's will to probate. To review a judgment denying her petition, Muriel Theresa Mahoney brings error.
Affirmed.
Morrissey Mahoney & Scofield, of Denver, for plaintiff in error.
William R. Baab and Robert G. Smith, both of Greeley, for defendant in error.
It is here contended that the trial court erred in denying the petition of the plaintiff in error to vacate the judgment admitting her mother's will to probate. The petition for vacation alleges that petitioner executed a waiver consenting to the setting of said will for probate, which consent was procured by fraud and deceit practiced upon her by the attorney for the proponents and, she alleges, the judgment admitting said will to probate, based in part upon such waiver, was the result of accident, surprise and excusable neglect. By way of conclusion petitioner also asserts that the will of decedent was executed as the result of undue influence exercised upon her at a time when she did not have the mental capacity to execute a last will and testament, and it is further alleged that had the deceased died intestate plaintiff in error would have inherited more property than is devised to her by the will. Petitioner asked also that she be permitted to file a caveat.
Under its general jurisdiction in connection with the administration of the estates of decedents, is is unquestioned that a county court, 'may, on proper grounds, revoke the probate of a will.' Glenn v Mitchell, 71 Colo. 394, 207 P. 84, 85. The wording of the petition here might indicate that it was grounded upon section 81 of the Code of Civil Procedure pertaining to relief from civil judgments, the applicability of which to probate proceedings is doubtful. It might well be questioned especially if the application is considered as being based upon the code provision, when the dates hereinafter mentioned are considered, whether, under the authority of Hollingsworth v. Ring, 26 Colo.App. 121, 141 P. 139, the petition was presented in apt time and whether its sufficiency is subject to challenge for its failure to state with fulness of particularity the details of the grounds of a proposed contest so that the court might observe whether these were substantial and not technical; meritorious and not frivolous, as required by Gumaer v. Bell, 51 Colo. 473, 119 P. 681. However, in view of the fact that the trial court, after hearing the evidence produced, passed upon the application upon the merits, we shall not consider these technical objections which apparently were not urged below. In this connection, it may be stated that whether the petition is based upon the inherent right of the county court to afford relief, or upon the code provision, the granting or refusing of the application is discretionary with the trial court. Diebold v. Diebold, 79 Colo. 7, 243 P. 630; 68 C.J. 1139, § 965(c). To warrant interference by an appellate court a gross abuse of discretion must appear. Donald v. Bradt, 15 Colo.App. 414, 62 P. 580; 68 C.J. 1182, § 1020(a). Otherwise, the trial court's ruling is conclusive upon review. Carpenter-Liebhardt Co. v. Nelson, 77 Colo. 175, 234 P. 1067.
The evidence discloses that the mother died at La Salle Colorado, September 3, 1937, leaving surviving her as her heirs at law plaintiff in error a resident of California who had returned to Colorado temporarily during the last illness of her mother, one other daughter, three sons, and a granddaughter, all of whom live in this state. With the exception of the granddaughter, for whom no provision was made, the will, which was executed in 1934, contained bequests and devises to all the heirs. September 9, 1937, the will, which had been withdrawn from a safety deposit box in a bank in Greeley, was read in the presence of all decedent's sons and daughters, by William R. Baab, Esq., of the Weld county bar, whom the heirs had unanimously selected as attorney to conduct the probate proceedings. Later on the same day Herbert Sullivan, who was nominated executor by the will, presented it for probate to the county court. By mutual agreement of the children the hearing on the petition for probate was duly set for September 20. In the office of the clerk of the county court and Before that official, plaintiff in error on September 9, subscribed and swore to the following acknowledgment and acceptance of service of the citation: 'I, Teresa Muriel Mahoney, of lawful age, hereby waive the issuance of citation and accept service of the within citation to attend probate and hearing concerning the Last Will and Testament of Margaret F. Sullivan, deceased, as fully and completely as if served by the Sheriff of Weld County, Colorado, and consent that the hearing concerning the probate of said will be had on the 20th day of ...
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