Kimball's Estate, Matter of, No. 4850

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before GUTHRIE; GUTHRIE
• Citation: 583 P.2d 1274
• Parties: In the Matter of the ESTATE of Frank W. KIMBALL, Deceased. John E. KIMBALL, Matt Kimball, Frank Kimball, and Penrod C. Geisinger, Administrator C. T. A. of the Estate of Edward H. Kimball, Appellants(Respondents below), v. Richard DeYOE, Mary DeYoe, Kathleen Hartnett, Executrix of the Estate of Anne H. Kimball, and Farmers Home Administration, Appellees (Petitioners below).
• Docket Number: No. 4850
• Decision Date: 11 September 1978

Page 1274

583 P.2d 1274 In the Matter of the ESTATE of Frank W. KIMBALL, Deceased.
John E. KIMBALL, Matt Kimball, Frank Kimball, and Penrod C. Geisinger, Administrator C. T. A. of the Estate of Edward H. Kimball, Appellants(Respondents below),
v.
Richard DeYOE, Mary DeYoe, Kathleen Hartnett, Executrix of the Estate of Anne H. Kimball, and Farmers Home Administration, Appellees (Petitioners below). No. 4850. Supreme Court of Wyoming. Sept. 11, 1978.

Page 1276

Cameron S. Walker and William T. Schwartz of Schwartz, Bon & McCrary, Casper, and Donn Bennett of Mueller, Bennett & Hanson, Belle Fourche, South Dakota, for appellants.

Houston G. Williams and Richard L. Williams of Wehrli & Williams, Casper, and Cecil K. Hughes, Sundance, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

Appellants, sons of Edward H. Kimball, deceased, and the administrator c. t. a. of the latter's estate, pursue this appeal from the nunc pro tunc order of the district court of Crook County, sitting in probate, which order purported to correct a final decree of settlement of account and distribution in the matter of the estate of Frank W. Kimball, deceased. The questioned order was made some twenty-eight years after entry of the final decree. We find no error in the district court's action and affirm.

Although appellants herein set out seven issues, an examination of the record reveals that while some of the propositions asserted may be supportive of the desired disposal, there is in fact only one question for resolution, which may be phrased as follows:

Did the district court have jurisdiction to enter the nunc pro tunc order which was entered herein, and if the court had such power, did it abuse its discretion in the entry of such order?

Under these circumstances, this does not necessitate a discussion of all such contentions in this opinion, which will be confined to only those matters necessarily involved in our disposal.

Frank W. Kimball died testate on March 1, 1949, in Crook County, Wyoming. His will included provision for disposition of all of his real property (a ranch) in the following manner:

"FOURTH: I give, devise and bequeath unto my wife, Anne H. Kimball, all of the real property of which I may die siezed (sic) or possessed, to be hers during the term of her natural life, and upon her death to revert to my son, Edward H. Kimball, in fee simple, it being my intention that my wife, Anne H. Kimball, receive all income from said real property during her life time.

"FIFTH: Should my son, Edward H. Kimball, predeceased my wife, then all of my real property shall belong to my wife in fee simple."

There was set forth in the final report and petition for final discharge a prayer that the real and personal property of the estate "be set over and distributed in accordance with the terms of the last will and testament of the deceased." Thereafter, on December 8, 1949, a decree of settlement of account and distribution of the estate was signed by the judge of the district court, sitting in probate. The decree expressly provided that the property of said estate be:

" * * * distributed in accordance with the terms of the Last Will and Testament of the deceased, as follows, to-wit:"

However, in so doing the decree omitted to condition Edward H. Kimball's remainder interest in the real property upon his surviving

Page 1277

Anne Kimball a condition expressly intended by paragraph 5 of the will. The estate was formally closed by order of the court entered on March 15, 1950. The record does not disclose that an appeal or other timely action was ever taken challenging the decree, and it has long since become final and binding.

No action was taken in the years next ensuing until November 27, 1974, when John B. DeYoe, acting under the authority of a power of attorney for Anne Kimball, sought by ex parte application a nunc pro tunc order to correct the decree of distribution so that it would conform to the terms of the will. The district court granted the application by an order entered on the same day. At the time of the entry of this nunc pro tunc order, Edward H. Kimball had been deceased for two years, having died on November 21, 1972.

Subsequent to the entry of the original nunc pro tunc order, Anne Kimball conveyed the property in question by warranty deed to Richard DeYoe, her grandson, and Mary DeYoe. The purchase price was secured in part by two separate mortgages which the DeYoes executed and delivered to Anne Kimball and the United States Farmers Home Administration. ¹ Both mortgages were recorded in Crook County on May 30, 1975. It was shortly thereafter November 7, 1975 when Anne Kimball died.

The district court subsequently vacated the original order on application of appellants by an order entered on July 12, 1976. ² Following the court's action, another petition for a nunc pro tunc order was filed in September 1976, only this time the petitioners were appellees herein Richard and Mary DeYoe and the Farmers Home Administration joined later by Kathleen Hartnett, executrix of the estate of Anne Kimball. After notice was given to appellants and a hearing was held thereon, the district court again issued a nunc pro tunc order on June 13, 1977, amending the 1949 decree. The court found that the judge, in entering the final decree of distribution, had intended to distribute the questioned property according to the terms of the last will of Frank W. Kimball, but that through mistake and inadvertence he had omitted the provisions of paragraph 5 thereof. The court then decreed that the final decree of distribution be amended to read as follows, the amendatory language being italicized:

"To Anne H. Kimball, the following described real property, to-wit:

to be hers during the term of her natural life, with the right to receive all income from said real property during her lifetime, and upon her death to revert to Edward H. Kimball, son of the deceased, in fee simple; Provided that in the event Edward H....