Sievers v. Barton
| Decision Date | 02 June 1989 |
| Docket Number | No. 88-235,88-235 |
| Citation | 775 P.2d 489 |
| Parties | Robert W. SIEVERS, Appellant (Plaintiff), v. John R. BARTON, Personal Representative, ex rel., of the Estate of Meritt N. Barton, deceased; Marjorie Barton, individually; and George Barton, individually, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Henry A. Burgess and Robert James Wyatt of Burgess & Davis, Sheridan, for appellant.
Lawrence A. Yonkee of Redle, Yonkee & Toner, Sheridan, for appellees.
Before CARDINE, C.J., THOMAS, URBIGKIT and GOLDEN, JJ., and BROWN, Retired J.
BROWN, Justice, Retired.
Meritt Barton and Caroline Barton, husband and wife, executed reciprocal wills. The residuary legatees in the two wills were identical. Appellant Robert W. Sievers was to receive one-half of the residuary estate according to each will with the balance to go equally to Meritt's niece and nephew.
Mr. Barton survived his wife, Caroline, and probated her estate. He also changed his own will after his wife's death and made no provision for appellant. Appellant, contending that it was a breach of contract for Meritt Barton to change his will and eliminate appellant as a residuary beneficiary, filed an action for declaratory relief and for a redress of the rejection of his claim in probate against the estate of Meritt Barton. The trial court granted a summary judgment in favor of appellees John R. Barton as personal representative of the estate of Meritt Barton, Marjorie Barton and George Barton. This appeal followed.
Appellant specifies the issues to be:
1. Whether Plaintiff's [appellant's] proffered documentary evidence and supporting testimony meet the requirements of Wyoming's Statute of Frauds [Wyo. Stat. (1977), § 1-23-105(a) ] and raise issues of material fact.
2. Whether the District Court's failure to give Plaintiff/Appellant the benefit of all favorable inferences is reversible error.
3. Whether it is reversible error in this case for the District Court to keep Plaintiff from presenting his case to the jury by granting summary judgment.
Appellees state the issues:
1. Did the trial court err in finding that there is no genuine issue as to any material fact, and Defendants are entitled to judgment as a matter of law?
(a) Considering the evidence in the light most favorable to Appellant, has he demonstrated prima facie that the Bartons agreed to make irrevocable wills, each promising to dispose of property to the other or, if the other be dead, one-half to Robert Sievers?
We will affirm.
Meritt N. Barton and Caroline R. Barton were married in 1940. During their married life, they put together a large and successful farm and ranching operation. Some of their property was held as tenants in common and some individually. In August 1977, Mr. and Mrs. Barton executed reciprocal wills. The residuary provisions in these reciprocal wills are of identical effect:
Caroline Barton Will Meritt N. Barton Will
Dated August 23, 1977 Dated August 23, 1977
THIRD: If my husband survivesme I give FOURTH: If my wife
him all of my property of whatever survives me I give
kind and wherever located. her all the rest of
my property of
whatever kind and
wherever located
FIFTH: I give my residuary estate to SIXTH: I give my
the following persons: residuary estate to
the following
persons
TO: ROBERT W. SIEVERS ... TO: MARJORIE
BERTAGNOLLI
one-half thereof ... one-fourth
thereof
TO: MARJORIE BERTAGNOLLI TO: GEORGE BARTON
... one-fourth thereof one-fourth
thereof
TO: GEORGE BARTON ... TO: ROBERT W
SIEVERS
one-fourth thereof one-half
thereof
The other residuary provisions in the wills were identical. Meritt and Caroline had no children; Marjorie Bertagnolli and George Barton are Meritt's niece and nephew. Robert W. Sievers is Caroline's only brother.
Caroline Barton died May 11, 1981, and owned substantial real and personal property subject to probate. In the probate proceedings of Caroline's will, Meritt Barton filed a disclaimer to certain property in the estate consisting of $200,000 cash and real property located in Moorcroft, Wyoming. A partial decree of distribution, dated March 22, 1982, set over and distributed the property disclaimed to those named in the residuary clause of Caroline's will, that is, one-half to Robert W. Sievers, one-fourth to Marjorie Barton (Bertagnolli) and one-fourth to George Barton. Except for the property disclaimed, Meritt Barton received all of his wife's property in the probate proceedings.
On February 12, 1987, Meritt Barton executed a new will and made no provision for appellant Robert W. Sievers. Meritt Barton died August 29, 1987, and his will was admitted to probate. On December 14, 1987, appellant filed a claim against the estate of Meritt Barton for one-half of decedent's residuary estate. The claim was rejected.
On December 30, 1987, appellant filed this action seeking declaratory relief, pursuant to W.S. 1-37-103 and 1-37-105, and a redress of the wrongful rejection of his claim against the estate of Meritt N. Barton, pursuant to W.S. 2-7-718. Both appellant and appellees demanded a jury trial. Appellees filed a Motion for Summary Judgment on May 26, 1988, and the motion was heard on June 21, 1988. An order granting summary judgment to appellees was filed July 6, 1988. On June 28, 1988, appellant filed a Motion for Amendment of Judgment which was heard on July 20, 1988, and denied. That same day appellant filed his Notice of Appeal.
The trial court concluded that there was no genuine issue as to any material fact and that appellees were entitled to judgment as a matter of law. When a case is in this posture, we review the record on appeal in a " 'light most favorable to the party opposing the motion giving him all favorable inferences that can be drawn from the facts.' " Claassen v. Nord, 756 P.2d 189, 194 (Wyo.1988) (quoting Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo.1987)) (emphasis added). See also Bowlerama, Inc. v. Woodside Realty Company, 752 P.2d 1377 (Wyo.1988).
Before appellant can prevail in this action, he must demonstrate that there was some evidence creating a genuine issue of material fact regarding the existence of a contract between Meritt Barton and Caroline Barton to dispose of their property in a certain way, that is, to devise and bequeath one-half of their residual estates to Robert W. Sievers.
Shook v. Bell, 599 P.2d 1320 (Wyo.1979) inferred that we may go beyond the two wills of the testators to determine if the testators contracted to dispose of their property in a certain way. Because of the absence of a contract set out in either Barton will, we must examine the record to see if there is other evidence that Mr. and Mrs. Barton contracted to dispose of their property in the way appellant alleges.
The attorney for Meritt and Caroline Barton, Edward S. Halsey, prepared the August 23, 1977, wills at the request of Mr. and Mrs. Barton following a meeting in Mr. Halsey's office in early August 1977. It is from this meeting that appellant claims there was an agreement. He directs our attention to specific testimony in the depositions of Mr. Halsey and appellant, which he contends is evidence of an agreement between Meritt Barton and Caroline Barton to have identical residuary clauses in their respective wills to the end that Robert W. Sievers would receive half of their residual estates. Appellant also alleges that the affidavits or depositions of three other people will tend to show the existence of an agreement. However, appellant does not tell us what these instruments say. Appellant further contends that the disclaimer in connection with the probate of Caroline Barton's will is evidence of an agreement.
In his deposition, Halsey testified that:
Q. [By Mr. Burgess] They [Mr. and Mrs. Barton] could have had some agreement between them as to how their respective estates would be distributed and you would not have known about it; isn't that true?
A. That's true.
* * * * * *
Q. It's quite possible that Caroline and Meritt could have had an agreement between them in regard to the mutual dispositive provisions of their will of which you would have had no knowledge; isn't that true?
MR. YONKEE: I object to the form of the question and the terminology quite possible. Answer.
Q. (BY MR. BURGESS) Well, it's possible.
A. It's possible.
* * * * * *
Q. Was there any conversation that you recall between Caroline Barton and Meritt Barton at that time concerning the making of wills?
A. I think Caroline might have said, right about that time, "Is that all right with you, Meritt?" And Meritt said words to the effect, "Whatever you want is fine with me, Caroline."
* * * * * *
Q. At that meeting, did Meritt Barton say anything about making a will?
A. * * * [H]e hadn't said anything, so I said, "How about you, Meritt, do you want to--are you going to make a will?" And he said, "Well, I probably should," or, "I guess I will," something to that effect.
And I said, "What do you want in your will?" And he said, "Well,...
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