Miller's Estate, Matter of

• Decision Date: 09 October 1975
• Docket Number: No. 4439,4439
• Citation: 541 P.2d 28
• Parties: In the Matter of the ESTATE of William M. MILLER, Deceased. Donna Jane FLINN, Ancillary Administratrix with Will Annexed, Appellant, v. J. Patrick HAND, Administrator, Estate of Leona Miller, Deceased, Appellee.
• Court: Wyoming Supreme Court

Page 28

541 P.2d 28

In the Matter of the ESTATE of William M. MILLER, Deceased.

Donna Jane FLINN, Ancillary Administratrix with Will Annexed, Appellant, v. J. Patrick HAND, Administrator, Estate of Leona Miller, Deceased, Appellee.

No. 4439.

Supreme Court of Wyoming.

Oct. 9, 1975.

Rehearing Denied Nov. 17, 1975.

Robert P. Schuster, Casper, for appellant.

J. Patrick Hand of Hand, Hand & Hand, P. C., Douglas, for appellee.

Before McCLINTOCK, RAPER and ROSE, JJ.

McCLINTOCK, Justice.

Two questions are presented by this appeal: First, whether the statutory option given a surviving spouse to elect against the provisions of a will and take a designated portion of the estate of the decedent may be exercised by an administrator or executor of the estate of a surviving widow who died prior to the time that the will was offered for probate in this state; second, and if the answer to the first question is in the negative, whether an election against a will regularly filed by the surviving spouse in probate proceedings in the domiciliary state of the testator and spouse may be considered an effective election against the will in this jurisdiction. The decision of the district court of Converse County, Wyoming sustained an election filed by the Wyoming administrator of the surviving spouse's estate in the proceedings then pending in that court in which election there was included a certified copy of the election which had been previously filed by her in the Tennessee probate court where the will was first probated. It is not clear on just which basis the election was sustained, but appellees in this court seek to sustain the election on both grounds. We find the decision results from an erroneous application of Wyoming law and reverse the order of the district court.

The facts are simple and undisputed. William M. Miller, ¹ the decedent, had been married to Julia Sharp Miller who had predeceased him, leaving one daughter as the issue of that marriage. The daughter likewise died before her father but was survived by three daughters. On March 24, 1936, Miller, at that time unmarried, executed a will whereby the bulk of his estate was left to these three grandchildren. He also provided therein that in the event he remarried his surviving spouse should receive $1,000.

Miller and Leona were married September 22, 1936. Miller died May 19, 1942 and the will of March 24, 1936 was admitted to probate as his last will and testament in the county court of Anderson County, Tennessee. His Tennessee estate was thereafter administered in that court. On June 11, 1942 Leona elected against the will in conformity with Tennessee law and eventually received a portion of the Tennessee estate as fixed by that law. At the time of his death Miller was the owner of a reserved one-half mineral interest in certain lands in Wyoming, which interest is conceded by all parties to constitute real property within this state. The Tennessee proceedings are properly silent as to this interest and no attempt was made to probate his will in this state until December 14, 1973, at which time proceedings in Keeping with our Uniform Foreign Probate Act, § 2-67, et seq., W.S.1957 were instituted. In the meantime and on December 6, 1963 Leona died, survived by a child of a previous marriage. No children were born to her marriage with Miller. On January 28, 1974, prior to the admission of the foreign will to probate, J. Patrick Hand, as administrator of the estate of Leona Miller, deceased, under appointment by the district court of Converse County, Wyoming, filed an instrument entitled 'Election of Surviving Spouse' under the terms of which instrument, and in behalf of one Ruby Zimmerman, heir of Leona Miller, and Burton-Hawks, Inc. as successor in interest, he claimed a one-half interest in the estate. The will was admitted to probate, and Mrs. Flinn appointed administratrix with the will annexed on February 7, 1974. Appropriate letters were issued to Mrs. Flinn on the next day. A second election against the will, again claiming a half interest in the estate, was filed by Mr. Hand on February 20, 1974, stating that it was made in behalf of Leona Miller, now deceased, her heirs and their successor Burton-Hawks, Inc. It was further asserted in this instrument that William Miller had died intestate as to this mineral interest. Attached to the election and incorporated as a part thereof was a certified copy of the election which Leona Miller had filed in the Tennessee probate proceedings on June 11, 1942. By order entered April 22, 1974 the Converse County district court sustained the election against the will, without prejudice to any claims Leona or her successors in interest might have to intestate property. This appeal followed.

Our election statute as amended in 1919 remained fixed in form until enactment of Ch. 204, S.L. of Wyoming 1957. In view of the death of Miller during this period and the delay in presentation of the will for probate in Wyoming, it is necessary to discuss the changes in the law which were effected in 1957. By the first enactment, Ch. 21, S.L. of Wyoming 1919, it was provided in pertinent part that a testator having children or descendants of children by a former marriage and no such descendants of the marriage in effect at the time of his death, could by will deprive his surviving widow of not to exceed one-fourth of his estate, real and personal. If he deprived the widow of more than that,

'* * * it shall be optional with the surviving spouse, in the manner and within the time mentioned in the first proviso in this section, and not otherwise, to elect to take one-fourth of the estate, real and personal, of the deceased spouse in lieu of the provision for such surviving spouse as made in the will of the deceased spouse. In default of such election the will shall govern in the distribution of the estate.' ²

The manner and form of exercising the election were the same as already provided for the spouse of a marriage resulting in children, namely,

'* * * Such option shall be signified by an instrument in writing, signed by the surviving spouse and acknowledged before some officer authorized by the laws of this State to take acknowledgments and filed in the office of the Clerk of the District Court in which such will is admitted to probate within six (6) months after the probate thereof.' (Emphasis supplied.)

This statute, in effect at the time of Miller's death in 1942, contained no provision for exercise of the option by anyone other than the surviving spouse. Following the decision of this court in In re Hartt's Estate, 75 Wyo. 305, 295 P.2d 985 (1956), in which case it was held that the time limitation of the statute for filing the election was a mandatory limitation, regardless of any equities that might exist in favor of the surviving spouse except possibly fraud, the statute was amended by Ch. 204, S.L. of Wyoming 1957 to direct the probate judge to give notice of and explain the right of election to the surviving spouse, or if he or she was deceased or incompetent, to the personal representative or guardian of the estate of a surviving spouse who had died or become incompetent. The statute was further amended in 1971 and again in 1973, mainly with respect to time requirements, and, as the law existed at the time the Miller will was admitted to probate in Converse County, provided in pertinent part that,

'* * * if the surviving spouse shall die or become incompetent within three months after such will is admitted to probate or before the probate judge has advised him of the right and consequence of election as herein required, then the same must be explained to the personal representative or guardian of the estate of the deceased or incompetent or surviving spouse who shall have the same right of election as the surviving spouse would have had if living or competent, and shall make such election in writing within 30 days after receiving the explanation and consequence of such election from the probate judge.' ³ (Emphasis supplied.)

It is thus apparent that an important change was effected by the 1957 amendment. Under the former statute the optional right of election expired six months after the will was admitted to probate, without notice and without provision for exercise of the option by the surviving spouse's personal representatives should he or she die before exercising the option. By the later statute, the option does not expire unless and until specific notice and explanation are given by the probate judge, and if the surviving spouse dies before the notice and explanation are given, then it must be given to the personal representative of the estate. Probate of the will and giving this notice are conditions to the running of the limitations upon the right to exercise such option.

The administrator of Mrs. Miller's estate concedes that almost every authority holds that the widow's right to an election against the will is personal to her and is extinguished upon her death, absent statutory modification or extension, but argues that by the 1957 amendment of the statute the legislature has extended the widow's right of election, which extension of rights has been carried into the later amendments. We agree that since 1957 the option does not necessarily die with the widow but is extended to her personal representative-which we construe to mean her administrator in case of intestacy and her executor if she died testate-and that this right of election does not terminate until notice is given either to the surviving widow in her lifetime or to such personal representative after her death. It is therefore necessary to determine which version of the law shall be applied in this situation where some 15 years after the death of the testator the law was changed to extend the right of election.

The administrator cites In re Enyart's Estate, 100 Neb. 337, 160 N.W 120, 124 (1916) to the effect that there is no vested...