Miller v. Weston

• Citation: 189 P. 610,67 Colo. 534
• Decision Date: 05 January 1920
• Docket Number: 8277.
• Parties: MILLER v. WESTON et al.
• Court: Supreme Court of Colorado

189 P. 610

67 Colo. 534

MILLER v. WESTON et al.

No. 8277.

Supreme Court of Colorado, En Banc.

January 5, 1920

On Motion for Rehearing, May 3, 1920.

Error to Court of Appeals.

Proceeding by William E. Weston and others to probate the will of David F. Miller, deceased, in which George A. Miller filed a caveat. To a judgment in the Court of Appeals (25 Colo.App 231, 138 P. 424), affirming a judgment in favor of proponents, contestant brings error. Affirmed and remanded with directions, and rehearing denied.

Former opinion (61 Colo. 588, 157 P. 1161) withdrawn.

Allen J., dissenting.

John T. Bottom and Edward C. Stimson, both of Denver, J. W. McCreery, of Greeley, and Page M. Brereton and John M. Waldron, both of Denver, for plaintiff in error.

G. K Hartenstein and H. L. McGinnis, both of Buena Vista, and M. I. O'Mailia, of Fairplay, for defendants in error.

DENISON J.

This case is on writ of error to the Court of Appeals. Miller v. Weston 25 Colo.App. 231, 138 P. 424. That court affirmed the judgment of the district court of Park county, which, on appeal from the county court, directed a verdict in favor of proponents of the will of David F. Miller, which had been admitted to probate in the county court. The case was brought here on error and affirmed (61 Colo. 588, 157 P. 1161), a rehearing was granted, and the case has been reargued orally, with additional briefs.

The contestant, plaintiff in error, makes three principal points: (1) The county court, and therefore the district court, had no jurisdiction. (2) The testator acted under an insane delusion that George A. was not his son. (3) The will is void under the rule sagainst perpetuities.

1. In the district court the contestant moved for a change of venue. The only ground for the motion which we consider was that at his death the testator resided in Denver, and it is claimed that therefore, under section 7102, R. S. 1908, quoted in the opinion of the Court of Appeals, the county court of Park county had no jurisdiction; and it is argued that because, in the district court, the affidavit of the contestant upon this motion that the testator was a resident of Denver was the only evidence upon that subject before that court, the court was bound to take it as true and lost jurisdiction thereupon.

While some of the reasoning of the Court of Appeals may, perhaps, be questioned, we agree with that court that this point should have been raised in the county court. The county court and evidence before it as to the residence of the testator, and assumed jurisdiction upon that evidence; and, since the contestant did not put that point in issue in the county court, it was conclusively determined against him. In thus holding, we are not holding that jurisdiction of the subject-matter may be conferred by consent or acquiescence, but that, where jurisdiction depends upon a question of fact, it must be taken advantage of in apt time and in the right manner.

It should be noticed that the county court takes jurisdiction, not only of the contest of the will, but of the execution of it in case it is probated, and of the administration of the estate in case the will is rejected. Nothing was appealed to the district court but the contest of the will. To grant a change of the venue in that alone would involve the necessity of leaving the execution of the will or the administration of the estate in the county court, while transferring the contest on the ground that that same county court had no jurisdiction of it. We do not decide whether a motion for a change of venue was the right way to raise this question of jurisdiction.

2. On the question of insanity we agree with the Court of Appeals and with the district court. If the jury, upon the evidence in the record, had found in favor of the contestant, the court would have been obliged to set aside the verdict. The mere fact that the testator believed the contestant was not his son is not sufficient to justify the conclusion of mental incompetency, even though for years he treated and recognized him as a son.

3. The second paragraph of said will is as follows:

'I hereby constitute William E. Weston and I. S. Smith of Fairplay, Colorado, and either of them, should the other be dead, or refuse to act, executors of this will and trustees of my property, real and personal, and all rights and credits, to whom, on the admission of this will to probate, the title and ownership of my said property rights and credits shall go, in trust, however, for the realization of said rights and credits and the conversion into money of said real estate and personal property according to their best ability and judgment under the supervision of the court of probate, and for the distribution of all the proceeds, after paying my funeral expenses and my debts as above directed as well as all expenses of administration, including full compensation to my said executors. as next hereinafter stated.'

The testator then proceeds to make various bequests of money, with a residuary clause distributing the remainder, if any, among certain legatees. The fourteenth paragraph of the will is as follows:

'It is my will that as soon after my decease as reasonably may be practicable without material sacrifice of the value of my estate, that my executors sell and convert into money the lands and other assets of my estate at least to the extent that may be sufficient to pay off the money bequests of this will, and that complete execution and discharge of the power and trust to realize into money the assets of my estate and fully to distribute the funds thus realized be performed as early as may be done consistently with fair money returns from said estate, my recommendation being that the estate be fully administered and distributed within two years after the admission of this my will to probate, unless the court of probate sanction a longer continuance of the administration, except in respect to the trusts for the beneficiaries who shall then be minors, provided these trusts or any of them remain undischarged meanwhile in accordance with the provisions contained in paragraph 13 of this instrument, but I recommend that the specific bequests, that is, those expressly and primarily provided for, not affecting the residuum of the estate, be paid over to the parties respectively entitled thereto as soon after the admission of this will to probate as may be possible consistently with the practice of the court in such matters and ordinary business prudence.' There was a codicil, not material to present considerations.

Paragraph 2 violates the rule against perpetuities, because the clause 'on the admission of this will to probate' postpones the vesting of the title and ownership in the executors until the probate of the will, which may never happen. Johnson v. Preston, 226 Ill. 447, 80 N.E. 1001, 10 L.R.A. (N. S.) 564.

It is said in the opinion of the Court of Appeals and in argument that the expression in paragraph 2, 'to whom, on the admission of this will to probate, the title and ownership of my said property rights and credits shall go,' shows an intention merely to conform to the provisions of the statute concerning probate, and not to postpone the vesting of the title until the...