Jones v. Lambourn's Estate

• Decision Date: 14 February 1966
• Docket Number: No. 21090,21090
• Parties: Eura V. JONES, Executor of the Estate of Olive J. Lambourn, Deceased, Plaintiff in Error, v. ESTATE of Olive J. LAMBOURN, also known as Mrs. Olive J. Lambourn, Ward, and Andrew Wysowatcky Conservator thereof, Defendants in Error.
• Court: Colorado Supreme Court

Page 11

411 P.2d 11

159 Colo. 246

Eura V. JONES, Executor of the Estate of Olive J. Lambourn Deceased, Plaintiff in Error, v. ESTATE of Olive J. LAMBOURN, also known as Mrs. Olive J Lambourn, Ward, and Andrew Wysowatcky Conservator thereof, Defendants in Error.

No. 21090.

Supreme Court of Colorado, In Department.

Feb. 14, 1966.

Elias J. Candell, Lakewood, for plaintiff in error.

Martin I. Steinberg, Denver, for defendants in error.

PRINGLE, Justice.

The plaintiff in error Eura V. Jones, executor of the estate of Olive J. Lambourn, deceased, filed objections in the County Court of Denver (now the Probate Court) to a final report of defendant in error Andrew Wysowatcky, the conservator of the estate of Olive J. Lambourn, and sought to surcharge the conservator for alleged negligence in administering the estate of Mrs. Lambourn. The trial court entered judgment overruling the objections to the report, and the executor now seeks reversal of the judgment. The parties here will be referred to by name, or in their respective capacities as executor, or conservator.

On February 11, 1958, Olive J. Lambourn was adjudicated a mental incompetent, and was committed to the Colorado State Hospital in Pueblo. On the same day, and at the request of the county court, the public administrator, Andrew Wysowatcky, filed a petition for letters of conservatorship and was appointed conservator of Mrs. Lambourn's estate.

The estate, aside from a small amount of cash and household goods of little value, consisted of real estate used by Mrs. Lambourn as a residence, valued at $2,500 and securities valued at a little over $2,100.

The house was found to be in such a substandard condition that it was unfit for any purpose of human habitation. Furthermore, it was found that renovating the house would not have been practical nor profitable to the estate.

Wysowatcky requested the State Hospital to furnish him information concerning the condition of Mrs. Lambourn, and in reply he received a letter from Dr. F. H. Zimmerman, Superintendent of the Colorado State Hospital, advising him of her condition. The letter stated that Mrs. Lambourn, who was eighty six years old, was mentallly confused and disoriented; that her condition was considered irreversible, and that it was not anticipated that she would ever regain her normal mental capacity.

Upon the basis that the house was no longer fit for human habitation, and upon Dr. Zimmerman's prognosis, Wysowatcky determined that the interests of his ward's estate would be served best by disposing of the real estate. He therefore petitioned the court under C.R.S. '53, 152-10-14 for specific performance of an option contract to convey the property. The option contract had been entered into by Mrs. Lambourn approximately one year before her adjudication. The agreement gave one Wesley Kemp the first right and option to purchase the property for $3,000, (which was $500 more than the appraised value) in the event that it were offered for sale within five years from the date of the option.

The court granted the petition and the property was sold pursuant to the option agreement. The proceeds from the sale of the house and the securities were applied to the debts and expenses of the estate and to the monthly maintenance of Mrs. Lambourn at the State Hospital.

Mrs. Lambourn died at the Hospital in February, 1962. Her last will named Jones as the sole beneficiary and executor of her estate.

Wysowatcky filed his final report with the court and requested Jones, as executor, to approve it. Thereafter, plaintiff filed a petition for leave to file objections to the final report. Leave was granted and the objections were heard but denied.

The executor presents the following assignments of error for our determination: (1) The conservator wrongfully disposed of the real estate, failed to preserve the residence of a mental incompetent for ultimate transmission to her or to her heirs or devisees, and was therefore guilty of negligence in the performance of his duties. (2) It was error for the trial court to refuse to disqualify itself and also to refuse to grant a jury trial on the issues made by the objections to the report. (3) The purported sale is void since the statutory procedures regarding sale of property of a mental incompetent were not followed.

The gist of plaintiff's argument with respect to his first point is that, barring the sale of the residence, Mrs. Lambourn was eligible for Old Age Pension assistance payments since the value of her assets, excluding the value of her home, did not exceed $1,000. The pension would have been adequate to pay her monthly maintenance at the Hospital. The house would then have been preserved for the ultimate transmission to Mrs. Lambourn upon her recovery or to her heirs or devisees upon her decease. Plaintiff contends that the sale foreclosed this result and constituted waste. We do not agree.

Plaintiff's argument is without merit on several grounds. Taking them in their logical order, we first find that plaintiff has confused the duties owed by a conservator with those owed by an administrator or executor.

It is the duty of an administrator to preserve the property of an estate for the ultimate transmission to the heirs or beneficiaries of the deceased. Huling v. Feddersen, 105 Colo, 475, 99 P.2d 194. However, it was the duty of Wysowatcky, as conservator, to manage the estate for the sole benefit of his ward, without looking to the interests of those who, upon the ward's demise, may have rights of succession. In re Guardianship of Hilton's Estate 72 Wyo....