Miller v. Weston

• Decision Date: 12 January 1914
• Citation: 138 P. 424,25 Colo.App. 231
• Parties: MILLER v. WESTON et al.
• Court: Colorado Court of Appeals

138 P. 424

25 Colo.App. 231

MILLER v. WESTON et al.

Court of Appeals of Colorado

January 12, 1914

Rehearing Denied Feb. 11, 1914

Appeal from District Court, Park County; Charles Cavender, Judge.

Proceeding by William E. Weston and others to probate the will of David F. Miller, deceased, in which George A. Miller filed a caveat. From a judgment in favor of proponents, the contestant appeals. Affirmed.

John T. Bottom, Edward C. Stimson, and George A. Miller, all of Denver, for appellant.

G.K Hartenstein, of Buena Vista (M.I. O'Mailia, of Fairplay of counsel), for appellees.

KING J.

This case presents for determination the contest of a written instrument purporting to be, and presented for probate as the last will and testament of David F. Miller, who died in Canon City in December, 1906. Miller was a pioneer of Park county, Colo., having lived there continuously from 1862 until about the year 1900, after which time he appears to have made his headquarters in Denver. That he left Park county and came to Denver with the intention of changing his domicile from Park county, where he had resided for almost 40 years, does not appear. He had no family dependent upon him at that time. His wife had died, and the other members of his family (his son and three foster children) were grown and had established homes of their own. While in Denver, Miller lived in the family of others, and made no attempt otherwise to establish a home of his own in that city. He made frequent trips to his ranch in Park county, and spent considerable time there. The record does not disclose the relative portion of the time spent in Denver and upon the ranch, but apparently he would go back and forth between Denver and his ranch during the summer months, and on different occasions visited in California. The record is silent as to the circumstances of his death, or how long he had been in Canon City at the time of that event. We infer, however, that he was there temporarily. Whether he was a resident of the city and county of Denver at the time of his death, or that Park county was still 'the county of the last known residence of such testator," is urged as one of the important questions for our determination. Some of the records of the county court which should have been certified to the district court, and presumably were lodged therein, are not preserved in the transcript, and therefore some matters are indefinite, such as dates when and just whet proceedings actually took place in the county court. It appears from the certificate of the clerk of the district court that there had been filed in his office "a certain appeal bond in an appeal from a judgment of the county court of said state in and for said county of Park, together with a transcript of said judgment and the pleadings and files in a certain cause theretofore pending in said court, entitled "In the Matter of the Last Will and Testament of David F. Miller, Deceased," but no part of said transcript from the county court appears in this court, with the exception of an amended caveat and demurrer thereto, the order overruling the demurrer, and the answer to the amended caveat. However, it is admitted that after the death of David F. Miller, the appellees, who are named as executors and trustees in the will, presented to the county court of Park county what purported to be the last will and testament of said David F. Miller, and that the persons named as executors were, by the said court, appointed administrators to collect pending the probate of the will. It is shown that George A. Miller, the appellant, filed his caveat at some date not shown by the record, and on January 18, 1909, his amended caveat, in which he alleged that the paper writing presented as the will of David F. Miller was not his will, nor the codicil his codicil, that at the time of executing the same the testator was not capable of executing a last will and testament and codicil, and, if executed, they were executed under undue influence of certain persons in said caveat named, and, further, that said paper writing, if a will, is void for that it violates the law and rule of perpetuities. Upon this caveat and the answer thereto the issues were made and trial had, resulting in a judgment sustaining the will and admitting it to probate. From said judgment an appeal was taken to the district court of Park county. In pursuance of said appeal, the transcript, as it appears herein, was filed in the district court April 10, 1911. On May 22, 1911, the case came on for trial in the district court, resulting in a judgment rendered and entered upon a verdict directed by the court, sustaining the will. From said judgment the case is brought to this court on appeal. There is nothing in the record to explain the delay from December, 1906, the date of testator's death, to April 10, 1911, when the papers on appeal were filed in the district court, which time, unexplained, seems unduly long.

I. When the case was called for trial in the district court May 22, 1911, appellant for the first time interposed a motion for change of venue to the city and county of Denver. This motion was based upon the grounds: (1) That Park county was not the proper county for probate of the will, because, as it was alleged, the testator at the time of his death was a resident of Denver, and that the greater part of his personal estate was kept and found in the city and county of Denver; (2) that the contestant could not have a fair trial in the county of Park, because of the interest of the district judge of said county in the subject-matter of the litigation, and of his undue influence tending to prejudice the people of the county against contestant; (3) of convenience of witnesses. This motion was overruled, and error is assigned thereon and urgently insisted upon both in the written briefs and oral argument.

The provisions of two statutes are involved in this motion, viz., sections 7900 and 8043, Mills' Ann.Stats.1912 (7102 and 7254, Rev.Stats.1908).

"The administration of all estates of persons dying testate or intestate, and of all minors and persons mentally incompetent, shall be had in the county court of the county of the last known residence of such testator, intestate, minor or mental incompetent, or if he had no residence in this state, then in the county court of the county wherein his personal estate or the greater part thereof may be found, but if he left no personal estate, then in the county court of the county wherein his real estate, or the greater part thereof, is situated. ***" Section 7900, Mills' Ann.Stats.1912; 7102, Rev.Stats.1908.

"All questions of law and fact, relating to probate matters, or arising in proceedings under this act, in any county, shall be determined by the county court of such county and from any and all final judgments or decrees upon any such questions, appeals or writs of certiorari shall lie to the district court of the same county, and from the district court to the Court of Appeals or Supreme Court, or from the county court to the Court of Appeals or Supreme Court, as in other cases, to be allowed, and prosecuted in the same manner as appeals or writs of certiorari, respectively, when prosecuted in civil or law cases from the decisions of such county or district courts. *** In all such appeals it shall be the duty of the appellate court, when any such question shall have been finally passed upon, to transmit, or cause to be transmitted, by the clerk thereof, to the county court from which such appeal was taken, a transcript showing the disposition of such appeal, whereupon such county court shall proceed in accordance with such finding, order or disposition thereof by such appellate court." Section 8043, Mills' Ann.Stats.1912; 7254, Rev.Stats.1908.

Appellant's motion was supported by his affidavit that all of the personal effects of the testator at the time of his decease were, and for a long time prior thereto had been, in the city and county of Denver, except a few things that he had left on a ranch in Park county, "and that he had taken up his home in said city and county of Denver." This affidavit was not disputed by any counter affidavit offered directly for that purpose. Appellant's contention is that the provisions of section 7900 that the administration of all estates of persons dying testate or intestate shall be had in the county court of the county of the last known residence of such testator or intestate are mandatory, and cannot be waived; that therefore, on the filing of the motion and affidavit aforesaid demanding a change of venue, the district court was deprived of jurisdiction, except for the purpose of granting the change. That the provisions of said statute are mandatory is conceded, but it does not necessarily follow that the motion may be first made in the district court, nor that such requirement may not be waived. The county court, in matters of administration of estates, is a court of general and unlimited jurisdiction, and therefore if properly invoked, had unquestioned jurisdiction of the entire subject-matter, of which the probate of the will is but one incident, and which jurisdiction, when once acquired, would continue until lawfully divested, without regard to the determination of the probate of the will. Its jurisdiction over the special case, or particular subject-matter of an individual estate of some deceased person, is acquired by proof of death, and petition for administration, or letters testamentary, as the case may be, which proof of death and petition form a part of the pleadings. We think that the question of the jurisdiction of the county court over any particular estate must first be raised in the county court and determined there, and, if not so raised and...