McGregor v. McGregor
| Decision Date | 27 December 1951 |
| Docket Number | Civ. No. 3584. |
| Citation | 101 F. Supp. 848 |
| Parties | McGREGOR et al. v. McGREGOR. |
| Court | U.S. District Court — District of Colorado |
W. J. Rutledge, Jr. and Bradford & McDaniel, all of Durango, Colo., for plaintiffs.
Grant E. McGee and Karl C. Brauns, Denver, Colo., for defendant.
This action is brought by two alleged legatees under what they claim was the last will and testament of Colin H. McGregor. The proceeding was instituted originally in a Colorado state court and was removed to this court by reason of diversity of citizenship between the parties. The matter stands on the motion of the defendant to dismiss for the failure of the complaint to state a claim upon which relief can be granted.
Insofar as is essential to the determination of such motion the complaint alleges as follows: That Colin H. McGregor died on or about the 24th day of November, 1949, at Lake Charles, Louisiana; that his last will and testament contained substantial bequests in favor of each of the plaintiffs; that notwithstanding, the defendant, who is the widow of the testator, wrongfully and wailfully presented another earlier will of the decedent for probate in a Louisiana state court; that such will made no provision for the plaintiffs but left the decedent's entire estate to the defendant; that such earlier will was admitted to probate, and McGregor's estate was administered, distributed and duly closed on or about January 7, 1950, in accordance with its provisions. It is further alleged that at various times, the dates of which cannot be determined from the complaint, the defendant had promised to protect the interests of the plaintiffs and the latter did not know that they were being deprived of their respective legacies until on or about February 20, 1951.
As drafted, the complaint purports to plead three causes of action. However, as analyzed by the Court it would seem that in substance but one cause of action is alleged upon which three distinct types of relief are sought. The first of these is for damages in tort for wrongfully depriving the plaintiffs of their just legacies; the second is equitable and prays for an order that the defendant be required to probate the true and last will of McGregor, and the third seeks to have certain real property in LaPlata County, Colorado, allegedly owned by the defendant, conveyed to the plaintiffs and applied in lieu of the bequests and in satisfaction of any damages.
There is little, if any, dispute among the authorities that a person who has wrongfully deprived another of his just bequest under a will has perpetrated an actionable tort. Morton v. Petitt, 124 Ohio St. 241, 177 N.E. 591; Dulin v. Bailey, 172 N.C. 608, 90 S.E. 689, L.R.A.1917B, 556; Creek v. Laski, 248 Mich. 425, 227 N.W. 817, 65 A.L.R. 1113; Allen v. Lovell's Adm'x, 303 Ky. 238, 197 S.W.2d 424. However, the courts have ruled with almost equal unanimity that before the deprived legatee can seek relief in a tribunal other than the proper probate court, an attempt first must have been made to probate the will which is alleged to give rise to the claim, or that, in the alternative, it must be alleged and shown that such probate is impossible under the circumstances of the particular case. Allen v. Lovell's Adm'x, supra; Thayer v. Kitchen, 200 Mass. 382, 86 N.E. 952; Riggs v. Rankins' Ex'r, 268 Ky. 390, 105 S.W.2d 167; Sprowl v. Lockett, 109 La. 894, 33 So. 911; Axe v. Wilson, 150 Kan. 794, 96 P.2d 880; Case of Broderick's Will, 21 Wall. 503, 88 U.S. 503, 22 L.Ed. 599; Gaines et ux. v. Chew, 2 How. 619, 646, 43 U.S. 619, 646, 11 L.Ed. 402, jurisdiction retained on other grounds; McDaniel v. Pattison, 98 Cal. 86, 27 P. 651, 32 P. 805; Creek v. Laski, 248 Mich. 425, 227 N.W. 817, 65 A.L.R. 1113; 45 Mich.Law Rev. 923.
There is no allegation in the complaint herein that any attempt has ever been made anywhere to probate the instrument the plaintiffs claim to be the true last will of Colin H. McGregor; nor does it contain any statement which even implies that probate in the proper jurisdiction is impossible or even impracticable. Hence, under the authorities last...
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...e.g., Moore v. Graybeal, 843 F.2d 706 (3d Cir.1988); Maxwell v. Southwest Nat'l Bank, 593 F.Supp. 250 (D.Kan.1984); McGregor v. McGregor, 101 F.Supp. 848 (D.Colo.1951), aff'd, 201 F.2d 528 (10th Cir.1953). See also McMullin v. Borgers, 761 S.W.2d 718 (Mo. App.1988); In re Estate of Hoover, ......
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