Plazza's Estate, In re

• Decision Date: 20 August 1974
• Docket Number: No. 73--389,73--389
• Citation: 34 Colo.App. 296,526 P.2d 155
• Parties: In the Matter of the ESTATE of Peter P. PLAZZA, Deceased. Jane Plazza LINK Widow-Appellant, v. Esther M. CLARK, Beneficiary-Appellee. . I
• Court: Colorado Court of Appeals

Page 155

526 P.2d 155

34 Colo.App. 296

In the Matter of the ESTATE of Peter P. PLAZZA, Deceased.

Jane Plazza LINK Widow-Appellant, v. Esther M. CLARK, Beneficiary-Appellee.

No. 73--389.

Colorado Court of Appeals, Div. I.

Aug. 20, 1974. Selected for Official Publication.

Martin P. Miller, Littleton, for widow-appellant.

J. F. Brauer, Arvada, for beneficiary-appellee.

PIERCE, Judge.

This appeal stems from two orders of the District Court of Cheyenne County striking (1) a widow's election to take against the will and (2) a widow's selection of property for a statutory widow's allowance.

Appellant, Jane Plazza Link, is the widow of the decedent, Peter P. Plazza. The appellee, Esther M. Clark, is a sister of the decedent. Peter Plazza died in November of 1969 in Missouri where he and his widow were residents. At the time of his death, he owned some real and personal property in Missouri, most of which was apparently jointly owned and not subject to probate. He also owned real estate in Colorado. His last will left all of his Missouri property to his widow and his Colorado property to his sister. No issues are raised in this appeal regarding the construction or interpretation of the will. A domiciliary estate was opened in Missouri and an ancilliary estate in Colorado.

In December of 1969, the widow applied for and was awarded a widow's allowance of $3,000 in the domiciliary estate proceeding. The record indicates that there was only one asset subject to probate in the State of Missouri, a pickup truck. This truck was later sold for $800, and the sum was apparently available to apply on the widow's allowance and administration costs. It was also determined by the Missouri court that there was no other real or personal property to pass under the will in Missouri, and no letters of administration were issued.

The widow then filed a document purporting to be an 'election to take against will' in Missouri. She later filed an election to take against the will in Colorado (See C.R.S.1963, 153--5--4), and also filed a selection for the purpose of claiming a widow's allowance of $3,500 (See C.R.S.1963, 153--12--16). She also attempted to amend the motion to claim $m,500 as provided for in an amendment to the allowance statute (1969 Perm.Supp., C.R.S.1963, 153--12--16).

In the ancillary estate proceeding in Colorado, the sister filed motions to strike the widow's election in Colorado and the widow's selection of allowance in Colorado. Both motions were granted by the trial court following the submission of briefs and arguments, but without hearing any evidence. The widow appeals.

THE ELECTION AGAINST THE WILL.

The sister's motion to strike the widow's election to take against the will in Colorado was based on the assertion that the widow had not shown the court that a valid election against the will had previously been filed in Missouri. The trial court agreed, stating that a valid election in the domiciliary estate was required, and that the court was unable to determine whether the election in Missouri was valid, but that the burden of proving the validity of the Missouri election was upon the widow and had not been sustained.

It is undisputed that the distribution of the decedent's real property in Colorado is governed by Colorado law. Foster v. Kragh, 107 Colo. 389, 113 P.2d 666. See also In re Owsley's Estate, 122 Minn. 190, 142 N.W. 129. We must, then, look first to Colorado statutory law which permits the surviving spouse to elect against the will. C.R.S.1963, 153--5--4 ¹ sets forth the requirements for a surviving spouse to make the election between that which he or she would receive under the will and one-half of the probate estate. Nothing in this statute expressly requires, in the case of an ancillary administration, that a valid election against the will be filed in the domiciliary state. Nor is the statute limited to cases in which Colorado is the domiciliary state. ²

It is generally held that the rule, which prohibits taking against the will and receiving benefits under the will at the same time, precludes an election in an ancillary administration which is inconsistent with an election Already taken in the domiciliary estate. See, e.g., In re McAllister's Estate, 135 Minn. 357, 160 N.W. 1016. See generally Scoles, Conflict of Laws And Elections in Administration of Decedents' Estates, 30 Ind.L.J. 293. This rule is based upon the doctrine of equitable estoppel and is designed to prevent a surviving spouse from taking unfair advantage of the multi-jurisdictional distribution of the estate. The rule has been applied in two ways: (1) as an absolute bar to an election which is contrary to an election already made in the domiciliary estate, See, e.g., Colvin v. Hutchinson, 338 Mo. 576, 92 S.W.2d 667, 105 A.L.R. 266, and (2) by holding that, while the spouse may make an election contrary to that made in the domiciliary estate, the spouse must account for benefits received previously under a contrary election, See, e.g., Griley v. Griley, 43 So.2d 350 (Fla.); Murphy v. Murphy, 125 Fla. 855, 170 So. 856.

The first question with which we are faced is whether there has been an election, either to take under the will or to elect against the will, which binds the widow in the Colorado proceeding. We conclude that no such election appears to have been shown in the case before us.

Since it is based on equitable estoppel, the assertion of a contrary election is an affirmative defense which must be pleaded and proved by the party asserting the estoppel, here, the sister. See Kimmel v. Batty, 168 Colo. 431, 451 P.2d 751; O'Byrne v. Scofield, 120 Colo. 572, 212 P.2d 867; Howard v. Fisher, 86 Colo. 493, 283 P. 1042. In attempting to preclude the widow from electing against the will in Colorado, the sister has not shown that, prior to the election against the will in Colorado, the widow had received any benefits under the will, or that the time for making the election to take against the will in Missouri had expired. A defense of equitable estoppel has not been established by the sister which would preclude the widow from electing against the will in Colorado. Under the facts before us, we conclude that the surviving spouse is entitled to elect against the will in the ancillary proceedings in Colorado and the trial court erred in striking the widow's election.

WIDOW'S SELECTION FOR ALLOWANCE

The probate court also granted the sister's motion to strike the widow's selection of property for the widow's allowance filed by the widow under C.R.S.1963, 153--12--16.

The general rule is that a widow's is controlled by the law of the decedent's domicile. Annot., 51 A.L.R.2d 1026. However, under the applicable statute, C.R.S.1963, 153--12--16, there is no requirement that the surviving spouse be a resident of this state or that this state be the domiciliary state. ³ We find no statutory bar to filing for a widow's allowance in Colorado, where Colorado is the ancillary jurisdiction.

It should be noted that while the widow's allowance claim in Missouri was filed and was granted by the Missouri probate court, the widow apparently does not seek enforcement of the Missouri order in this state. Whether such an order is enforceable against real property in this state (See Annot., 13 A.L.R.2d 973) is therefore, not an issue before us. Rather, the widow seeks to receive an allowance under the Colorado statute.

The trial court ruled in denying the widow's Selection of Allowance, that:

'(I)f the assets are not sufficient in the State of Missouri to satisfy a Widow's Selection of Allowance . . . by the law of that State, the domiciliary executrix could have required a transfer of sufficient funds from the State of Colorado, the State of ancillary administration to the State of Missouri for the purpose of paying the Widow's Selection of Allowance.'

We can find no basis in law for this holding of the trial court. While such a procedure might well have been successful in obtaining the allowance for the widow, See e.g., In re Schram's Estate, 132 Neb. 268, 271 N.W. 694, we know of no requirement that this procedure is the exclusive means of providing the widow's allowance under the circumstances such as are before us.

While the statutory amounts set for...