Ireland v. Jacobs

• Decision Date: 29 October 1945
• Docket Number: 15368.
• Citation: 163 P.2d 203,114 Colo. 168
• Parties: IRELAND, Atty. Gen., v. JACOBS.
• Court: Colorado Supreme Court

163 P.2d 203

114 Colo. 168

IRELAND, Atty. Gen., v. JACOBS.

No. 15368.

Supreme Court of Colorado, En Banc.

October 29, 1945

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Action by Gail L. Ireland, Attorney General of the State of Colorado, against James F. Jacobs, administrator of the estate of Bertha M. Leibold, deceased, to enforce what plaintiff conceived to be a public trust. To review an adverse judgment, the plaintiff brings error.

Affirmed.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and Berton T. Gobble, Asst. Atty. Gen., for plaintiff in error.

Foster Cline, of Denver, for defendant in error.

HILLIARD, Justice.

A suit by the Attorney General, to enforce what that distinguished public official conceived to be a public trust. The underlying basis of the claim is a will (presently to be set forth), joint in form, and purportedly executed by Frederick J. Leibold and Bertha M. Leibold, husband and wife, and in which each devised and bequeathed to the other their respective estates. In addition thereto, proceeding by paragraph Seventh thereof, divided into subparagraphs (a) (b), (c), (d), (e), and (f), the parties created a trust, declared the purposes thereof, designated the beneficiaries, and appointed a trustee to administer it. It is provided that, for the purposes set forth in the said subparagraphs, and upon the death 'of the one last surviving that the remainder of the entire estate, we give, devise and bequeathe in trust,' to the International Trust Company of Denver. Hereafter, for convenience, we shall refer to the Leibolds as Frederick and Bertha. The will is as follows:

'Joint Will and Testament.

'Will & Trust.

'I, Frederick J. Leibold and Bertha M. Leibold, do hereby make, publish and declare this to be our Last Will and Testament, hereby revoking all former wills and codicils thereto by us at any time heretofore executed. We hereby jointly declare and direct as follows:

'First: That I, Frederick J. Leibold, desire that all of my just debts be paid.

'Second: That in the event of my death Before that of my beloved wife, that I give, devise and bequeathe my home and residence and the lots upon which the same is situated, known as No. 501 South Washington Street, Denver, Colo., together with all furniture and furnishings therein which I own at the time of my death, together with any and all other real estate which I may own and wheresoever situated, together with all bonds and securities which I may possess, to my wife, Bertha M. Leibold.

'Third: I also give, devise and bequeathe unto my wife, any automobiles which I may own at the time of my death.

'Fourth: I hereby designate and appoint my wife as the sole executor of my said Will and vest in her as such, full power of sale in respect to real and personal property, with like power and authority to make and execute all necessary deeds, conveyances and instruments of title.

'Fifth: That I, Bertha M. Leibold, in the event of my death prior to that of my husband, Frederick J. Leibold, that I give devise and bequeathe all real estate I may possess at the time of my death together with all stocks, bonds, securities and all other personal property.

'Sixth: That I hereby designate and appoint my husband as the sole Executor of my said Will and vest in him as such, full power of sale in respect to real and personal property, with like power and authority to make and execute all necessary deeds, conveyances and instruments of title.

'Seventh: That we both jointly further declare and direct that in the event of both of our deaths or of the one last surviving that the remainder of the entire estate, we give, devise and bequeathe in trust unto the trustees, to wit: The International Trust Company, a Colorado corporation, of Denver, Colorado, as Trustee.

'Said Trust Estate shall be held for the following uses and purposes.

'(a) The Trustees shall pay the sum of $200.00 to some good reliable person for the faithful and loving care of our dog 'Peggy' a Boston Bull, for the devotion and affectionate companionship she gave to us during our lives. This care to be bestowed upon her during the balance of her life.

'(b) Said Trustee shall receive said Trust Estate as herein provided, to manage, control, handle and deal with, sell, invest and from time to time reinvest. The said Trustees are authorized and empowered to continue to hold as the Trust Estate or a part thereof such property, stocks, bonds and securities as they receive from our estates, and shall not be required to sell and dispose of the same, or any part thereof, merely for the reason that such investments are not authorized trust investments. Said Trustees shall be fully protected in and hereby directed to continue to hold such investments as they receive from our estate for such length of time as good business judgment would seem to require.

'(c) That all property such as real estate and personal property shall be disposed of in a manner that will bring the best value and that they will have full power to use their judgment to secure such return. That the proceeds shall be invested only in such securities that are nonspeculative and eligible for Trust Funds.

'(d) That this Trust shall be known as the Leibold Competitive Scholarship and is intended to be used to assist in financing a college education for any boy or girl who has been a resident of Denver for one (1) year and that has shown that they possess the necessary qualifications to excel in their studies and are not financially able to finance themselves. That this scholarship shall be awarded each year and shall be competitive. The trustees shall be empowered and have full authority to determine who shall be entitled to the award.

'(e) That the income from this trust shall be used for this purpose only and shall be paid out and dispensed to each successful contestant in such manner as the Trustees shall determine. That the principle [principal] shall at all times remain intact and that in the event that the income exceeds the scholarship for any one year, that the excess shall be added to the principle [principal] Trust Estate.

'(f) It is our wish and we hereby direct that the Trustees handling this Estate to make investments only in Government Bonds, Municipal Bonds, School District Bonds and in that class of securities authorized by law of Colorado for the investment of Trust Funds.

'In Witness Whereof. We have hereunto set our hands and seals this first day of June A. D. 1931.

'Frederick J. Leibold.

'Bertha M. Leibold.

'Signed, sealed, published and declared by the Testators, as and for their Last Will and Testament, and in the presence of us, who, at their request, in their presence and in the presence of such other have subscribed our names as attesting witnesses thereto; and we further state that at the time of the execution of said instrument we believe the said testators to be of sound and disposing mind and memory and under no restraint.

'John Herr,

'3417 West 38th Ave.,

'Denver, Colo.

'Ernest Urbach,

'1280.So. Ogden St.,

'Denver, Colo.'

Frederick departed this life November 29, 1935, and in due course the will in question was admitted to probate as his last will and testament. Bertha qualified as executrix of the estate, administered it, and on its closing received the entire assets thereof. On the death of Bertha, March 11, 1942, the same will again was offered for probate, but probate was denied because of lack of statutory proof that she had executed it as her last will and testament. On the theory that Bertha had died intestate her estate was administered by defendant in error as administrator, and the over-all question is whether he shall make distribution of the net estate to Bertha's heirs, as he contends is his duty, or pay it to the trustee named in the will, as the Attorney General insists should be his course. From the evidence received, it reasonably appears that Bertha's signature is on the purported will in the appropriate place therefor, immediately following that of Frederick, but it further appears from the testimony of the only living subscribing witness to the will, that she did not sign it in his presence, nor was she present at all when, at the request of Frederick, he and the other subscribing witness signed it. Furthermore, the testifying subscribing witness did not recall that Bertha's signature was on the will when he signed it, nor would he know her signature. That she did not execute the will in the required form, as the trial court here found, and unmistakably appears, is consistent with the order of the county court when probate of the will was denied by that tribunal.

Frederick having made a valid will containing the trust clause, and Bertha having signed the same will containing the same clause, Did she, notwithstanding her intestacy, make a valid agreement with Frederick, enforceable in equity? The trial court thought not. The circumstances surrounding the execution of the will, since it purported to be a joint one, are extraordinary. Frederick appeared in an office without his wife, the office of a long-time business associate, the testifying subscribing witness Herr, and producing the will, said: 'John and Ernest, here is my will. I wish you would witness it.' That was all he said. Thereupon the two witnesses signed. Upon the second attempted probate, and perhaps, for all that is disclosed by the record, at the original probate proceedings the name of Bertha appeared signed to the will. There was testimony from the witness Herr that he did not recall if her name was signed when he witnessed the will; thus, the circumstances as to when she signed are...