Lowell's Estate v. Arnett
| Decision Date | 08 May 1939 |
| Docket Number | 14362. |
| Citation | 104 Colo. 343,90 P.2d 957 |
| Parties | LOWELL'S ESTATE v. ARNETT. |
| Court | Colorado Supreme Court |
Rehearing Denied May 29, 1939.
In Department.
Error to County Court, City and County of Denver; C. Edgar Kettering, Judge.
Proceeding in the matter of the estate of O. W. Lowell, also known as Osroe W. Lowell, deceased, by Harriette H. Lowell, executrix wherein Effie G. Arnett filed a claim against the estate for money claimed to have been due from deceased for education and support of a minor child under a decree of divorce between claimant and deceased. To review an unsatisfactory judgment, Harriette H. Lowell, executrix, brings error.
Affirmed.
Mary F. Lathrop and Gunhild I. Ness, both of Denver, for plaintiff in error.
William A. Bryans, of Denver, for defendant in error.
This case involves the matter of a claim against the estate of a decedent allowed in the sum of $4,503.59, as of the fifth class.
Claimant formerly the wife of the decedent, was granted a divorce April 8, 1913, in the Denver district court. In the decretal findings it was stated that the parties had 'one adopted minor child, Martha Phillips Lowell, aged eight years; and that the plaintiff [claimant here] is a suitable person to have the custody of said minor child,' and custody was awarded accordingly. Defendant there was ordered to 'pay for the education of said child, a sum of not less than $400 per annum, and shall support and provide for said child, in a manner suitable to her station in life, for and during and until she shall have arrived at her majority.' Computing her claim at the rate of $400 per year, the amount fixed in the decree, for the period between the time of rendering the decree and the child's majority, claimant demanded $5,600, plus interest, and less conceded payments aggregating $960. The trial court found that a sum slightly in excess of that credited by claimant had been paid, and that there was a period when the decedent provided for the child elsewhere which entitled the estate to a further credit. Predicated so, the court found there was due claimant the sum already stated, and so adjudged. The amount included simple interest at the statutory rate. Clearly, as we perceive, the evidence justified the award as to sum; and we are not disposed to disagree with the conclusion of the trial court to the effect that the circumstances warranted allowance of interest. See Kaifer v. Kaifer, 286 Ill.App. 433, 3 N.E.2d 886.
At the trial counsel for the estate urged the following defenses: (1) That the child in question was not adopted, hence decedent was not obligated to provide for her; (2) that decedent did provide for her, in that 'he not only sent large sums of money to the claimant, but he also sent sums of money to the child herself during her minority and afterward'; (3) that the child was not in the custody of the claimant, but in other custody, part of the time with an Aid Society in New York, and at other times with claimant's two sisters, and that 'during all of that time the decedent supported the child.'
1. We cannot think that doubt obtains as to the adoption of the child. In the district court divorce decree, whereby custody of the child was awarded and provision for its support ordered at the hands of decedent, a formal finding as to the fact of adoption was made, as we have seen. Considering that decedent was not the child's natural father, and the endearing references to her in his many letters, postcards and telegrams through the intervening years, clearly these are consistent with no other view than that he regarded the child as his daughter and himself as her father--a relationship necessarily having genesis in the claimed adoption.
We do not overlook the fact, stressed by counsel for the estate that in the divorce case the allegation of plaintiff to the effect that the child important to our review was adopted by the parties to that suit, possibly was denied. That there was denial is based upon a line in red ink...
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In re Kann
...544. The husband admitted nonpayment but asserted laches as a defense. Id. at 150, 330 P.2d at 545. Citing Lowell's Estate v. Arnett , 104 Colo. 343, 347, 90 P.2d 957, 959 (1939), and Hamilton , 104 Colo. at 618-19, 94 P.2d at 128, the supreme court limited laches to contempt proceedings. J......
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Alexander v. Alexander, 4-9139
...were the issue of the marriage and the decree awarded care and custody of such issue to the plaintiff. In the case of Lowell's Estate v. Arnett, 104 Colo. 343, 90 P.2d 957, the court held that a finding in a divorce decree that a minor child had been adopted by the parties was not subject t......
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...whether laches can operate in circumstances such as the present one. See Price v. Price, 80 Colo. 158, 249 P. 648; Lowell v. Arnett, 104 Colo. 343, 90 P.2d 957; Hamilton v. Hamilton, 104 Colo. 615, 94 P.2d 127; Burke v. Burke, The only decision which furnishes support to the contention of t......