In re Wise's Estate, 13932.

• Decision Date: 11 January 1937
• Docket Number: 13932.
• Citation: 99 Colo. 562,64 P.2d 594
• Parties: In re WISE'S ESTATE. v. WISE et al. WISE
• Court: Colorado Supreme Court

64 P.2d 594

99 Colo. 562

In re WISE'S ESTATE.

WISE v. WISE et al.

No. 13932.

Supreme Court of Colorado, En Banc.

January 11, 1937

Error to District Court, City and County of Denver; James C Starkweather, Judge.

Proceeding in the matter of the estate of Charles Russell Wise deceased, wherein Will H. Wise and Myra Wise Miller petitioned to have the claim of Ethel Eugenie Jones Wise set aside. To review a judgment in favor of the petitioners, the claimant brings error.

Reversed and cause remanded, with instructions to enter judgment in favor of claimant.

Hawkins & Hawkins and Hicks & Hicks, all of Denver, for plaintiff in error.

Frank L. Fetzer, of Denver, for defendants in error.

HOLLAND Justice.

A determination of the questions raised in this action depend upon the construction of a separation agreement between Charles R. Wise and Ethel Eugenie Wise, husband and wife. The husband died intestate September 30, 1934. The surviving widow, his sole and only heir at law, made claim against his estate based on the separation agreement for a continuation to her of the monthly payments provided therein. The defendants in error, a brother and sister of Wise and next of kin, petitioned the county court in the estate matter to have the wife's claim, which had been allowed, set aside. On hearing the petition was granted, an appeal was taken by claimant to the district court, where judgment was entered against her and in favor of the petitioners. To reverse the judgment, she prosecutes this writ. Reference herein will be made to plaintiff in error as claimant, to the defendants in error as petitioners, and to Wise as decedent.

This case was submitted in both the county and district courts solely upon the construction of the separation agreement, no evidence being offered. Decedent and claimant were married October 18, 1918, and no children were born of the marriage. A number of temporary separations occurred prior to May 1, 1934, at which time, due to unhappy differences, they again separated and so remained until August 3, when, determining that the separation would be permanent, they entered into the agreement involved herein.

September 30, 1934, Wise died, his widow was appointed administratrix of his estate October 16, and so acted until November 8, 1934, when she resigned. November 20 she filed her claim against the estate which, as Before stated, was approved and allowed by order of the county court. January 8, 1935, petitioners, in appropriate proceedings, prayed for removal of the administrator and for a vacation of the order allowing the claim. Their petition was answered February 2 by Oliver G. Jones, then administrator, and he attached thereto a copy of the separation agreement. On the issue thus joined, the county court March 1 denied the petition and directed claimant's counsel to prepare an order accordingly. The order was prepared, but it appears that it never was signed by the court. August 25 following, petitioners served notice on counsel for claimant to have the cause set for a hearing on the claim, and on their petition. Over objections of claimant's counsel, the court ordered a rehearing to be had September 12, 1935. Claimant then filed her answer, wherein she based her claim upon the separation agreement. After presentment and argument November 18, 1935, the county court granted the petition, set aside the allowance of the claim, and declared petitioners to be the sole and only heirs at law of the decedent. Appeal to the district court was promptly taken, and January 21, 1936, that court entered its order, the effect of which is an affirmance of the order of the county court from which the appeal was taken.

The separation agreement is a well-prepared, lengthy document, containing ten recitals and about a like number of covenants. There is no intimation of duress or fraud practiced upon, or by, either of the parties to the contract, and it is apparent from their certification that each read the contract; that it had been explained to them by counsel; that they understood all the terms and provisions thereof; and that with such understanding they signed, executed, and acknowledged the document Before a notary public. It is not necessary to recite all of the numerous details of the agreement, but, as explanatory of the intentions, purpose, and complete understanding of the parties in making it, the following recitals are pertinent:

'Whereas, the title to the residence property at 620 St. Paul Street, Denver, stands in the name of the second party, but is encumbered in the sum of Three Thousand Three Hundred Dollars ($3300.00), with interest at the rate of six per cent per annum, payable quarterly, which encumbrance carries with it the further requirement that Two Hundred Dollars ($200.00) per annum be paid in installments of One Hundred Dollars each on the 22nd days of March and September of each year; and,

'Whereas, second party is required out of any maintenance, property settlement, alimony or support money paid to her, not only to take care of the requirements of said encumbrance, but is required to pay general taxes, fire insurance, water rentals, heating expenses and repairs on said property; and,

'Whereas, it is the desire of the first party to make provision for the support and maintenance of the second party during her life-time, while she is living separate and apart from him, as a property settlement with her, and while she is unmarried to any other than him, and this, regardless of whether or not the second party does or does not institute a divorce action; and,

'Whereas, it is further the desire and wish of both of the parties hereto that if any divorce action is instituted by either party hereto, there be no controversy in court concerning the matter of a property settlement or of either permanent or

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