Risbry v. Swan

• Decision Date: 24 December 1951
• Docket Number: No. 16233,16233
• Citation: 239 P.2d 600,124 Colo. 567
• Parties: RISBRY v. SWAN et al.
• Court: Colorado Supreme Court

Page 600

239 P.2d 600

124 Colo. 567

RISBRY v. SWAN et al.

No. 16233.

Supreme Court of Colorado, en Banc.

Dec. 24, 1951.

John C. Young, John C. Young, Jr. and Rush L. Young, Colorado Springs, for plaintiff in error.

Haney & Howbert, Colorado Springs, for Paul D. Swan.

John W. Metzger, Atty. Gen., Allen Moore, Deputy Atty. Gen., Donald C. McKinlay, Asst. Atty. Gen., for the State.

CLARK, Justice.

We will herein refer to the parties as they appeared in the trial court, where plaintiff in error was plaintiff and defendants in error were defendants.

Omitting the detail of allegations, plaintiff sets forth in her complaint the following:

1. That Charles V. Smith, a resident of El Paso County, died intestate May 10, 1946, leaving an estate; that thereafter Paul D. Swan was appointed and now is the duly qualified and acting administrator of said estate;

2. That deceased at the time of his death was sixty-eight years of age; that he was an illegitimate son of Mary Bernhardt; that he was a single man, never having married, and 'left no widow nor child nor children nor descendants of children surviving him.'

3. That plaintiff and deceased many years prior to the death of deceased lived in the same apartment house; that after becoming acquainted, they became fast friends, which developed into a romance and eventual engagement to marry; that the marriage was postponed from time to time for various reasons and never was consummated;

4. That following the engagement of plaintiff and deceased to marry, they entered into an oral agreement to execute mutual reciprocal wills, each leaving his or her entire estate to the other; that, pursuant to such agreement, plaintiff executed her will delivering the same to deceased, who placed it in his safety deposit box where it was found after his death; that said will had never been revoked by her in any way or manner; that plaintiff relied upon the promise of deceased to execute his will in her favor as agreed, but that apparently he was dilatory in this respect and died without having done so; that his death was sudden and without warning and that she believes he still would have kept his agreement had conditions permitted; that having fully performed her part of said mutual agreement, she became in equity entitled to specific performance on the part of deceased during his lifetime, and now is entitled to a decree of this court of such nature as to accomplish in effect what would have resulted from specific performance of the contract by deceased in his lifetime and is in equity entitled to all of the net assets of his estate in the same manner and to the same extent as if deceased had made a will in compliance with his agreement.

5. That plaintiff seeks no relief against the administrator of the estate and makes no claim that will diminish the assets threrof on final distribution or modify its administration, and that the sole relief sought by her against defendant administrator is that he 'be directed and be required to hold said net assets of said estate and not to distribute the same until it shall have been determined in this action as between plaintiff and they who otherwise would take under the laws of descent and distribution, as to whether they or plaintiff shall be entitled to said estate' and that if plaintiff be determined to be sole beneficiary thereof, that said defendant administrator pay the net distributive proceeds over to her.

6. That in view of the possibility of heirs at law whose names and addresses are unknown, such persons are made defendants as 'all unknown persons who claim any interest in the subject matter of this action.' The prayer in the complaint is in accordance with the allegations, and as to defendant administrator, it is only that he be required to hold the estate intact until it shall be determined whether distribution should be made to plaintiff or to the heirs at law of deceased. The State of Colorado is made a party defendant in view of the possibility that the relief sought by defendant be denied her and that no heirs at law of deceased appear; in which event the state would claim the estate by escheat. Aside from service upon the administrator and the State of Colorado, process was served by publication of summons. While motions of various kinds appear from the record to have been filed and disposed of by the trial court, none of them relates to or includes objection as to the manner of service, and it is conceded by all parties that the court is a proper tribunal and had full and complete jurisdiction of both the subject matter and the parties.

The attorney general on behalf of the State of Colorado filed answer admitting the allegations in the first and second paragraphs of plaintiff's complaint, and as to the remainder thereof, states that it is without knowledge or information sufficient to form a belief, and therefore, denies the same and demands strict proof thereof. The administrator defendant Swan filed answer admitting the first paragraph of the complaint and a like statutory denial of the remaining paragraphs thereof. Throughout the proceeding, however, it was apparently admitted that the facts set forth in the first and second paragraphs of the complaint are true. On plaintiff's motion, by formal court order, default of all remaining defendants, named and unnamed and otherwise designated, was duly entered.

Some days following the formal entry of default of the nonappearing defendants, the trial court declined to permit plaintiff to make proof as against the said defaulting defendants on the ground that all of the evidence should be submitted and considered at the time of trial of the case on its merits. Within a few days thereafter, however, the court did, on plintiff's motion, enter an order temporarily restraining the administrator from distributing the assets of the estate during the pendency of said action, or until further order of court.

When the case came on for trial on the merits, plaintiff voluntarily submitted herself as a witness in her own behalf, whereupon objection was promptly made on behalf of the State of Colorado, in which the administrator joined, challenging the qualifications of the plaintiff as a witness under the provisions of section 2, chapter 177, '35 C.S.A., designated in the briefs and arguments as the 'witness statute,' but commonly referred to in many taxts and decisions as the 'dead man statute.' The court permitted plaintiff to testify, but reserved ruling upon the objection--renewed a time or two throughout her testimony--until the conclusion of the case, whereupon he granted appearing defendants' motions to strike all of said testimony; sustained the objections heretofore mentioned; refused to give such testimony any consideration, and entered judgment dismissing the action.

Plaintiff assigns twenty-four specification of points why the judgment should be reversed; practically all thereof referring, in one manner or another, to alleged error on the part of the trial court in sustaining objections to the testimony submitted by the plaintiff in her own behalf and declining to give it consideration in his findings and conclusions. We shall not undertake to treat these various specifications separately nor to discuss all phases of the law raised thereby, but shall confine ourselves to the principal proposition as to whether or not, under the statute, the plaintiff was incompetent or in any wise barred from appearing as a witness in her own behalf.

The portion of section 2, chapter 177, '35 C.S.A., pertinent here, reads as follows: 'No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as * * * the executor or administrator, heir, legatee or devisee of any deceased person'. (Emphasis supplied.)

After the quotation above, the statute follows with certain exceptions. Plaintiff was not called as a witness by any adverse party, and does not come within any of the exceptions mentioned in the statute.

The trial court in ruling upon the objections to plaintiff's testimony and declaring it incompetent for any purpose, announced in substance that the plaintiff stands in the position as one who makes a 'claim against the estate'; that she claims as a stranger and not as either an heir at law in which she has no standing, or as a devisee or legatee, no will having been executed by the deceased in her favor; that her action is in the nature of a suit for specific performance of a contract to make a will; that the court cannot make a will for the deceased and that if judgment was rendered for plaintiff, she still would not be a devisee or legatee.

It is well at this point to consider the status of the plaintiff and to determine whether or not she brings this action in a capacity analogous to that of a claimant against the estate or, as one who is interested in seeing the assets of the estate preserved and protected, that the interest for which she contended may be left undissipated for distribution to her in event of conclusion of this litigation favorable to her. Ordinarily a claimant against the estate of a deceased person is one who seeks payment or some sort of financial satisfaction in a certain, specific amount. In event such claim be sustained, the estate, through the representative thereof, must make payment to that extent and the assets of the estate become depleted in that amount. Here the plaintiff seeks in no way or manner a money judgment or redress in specific amount, but, on the other hand, asserts that by virtue of the contract entered into between herself and deceased, she would have been the sole legatee and devisee of his estate had that contract been performed. She simply calls upon the equitable powers of the court to see to it that that is done which ought to have...