Stever's Estate, In re

• Decision Date: 18 May 1964
• Docket Number: No. 20503,20503
• Citation: 392 P.2d 286,155 Colo. 1
• Parties: In the Matter of the ESTATE of Delbert L. STEVER, Deceased. Mabel STEVER, Plaintiff in Error, v. Ervin L. STEVER and Yvonne E. Hudson, Executors of the Estate of Delbert L. Stever, Deceased, Defendants in Error.
• Court: Colorado Supreme Court

Page 286

392 P.2d 286

155 Colo. 1

In the Matter of the ESTATE of Delbert L. STEVER, Deceased.

Mabel STEVER, Plaintiff in Error, v. Ervin L. STEVER and Yvonne E. Hudson, Executors of the

Estate of Delbert L. Stever, Deceased, Defendants in Error.

No. 20503.

Supreme Court of Colorado, In Department.

May 18, 1964.

Robert T. James, Colorado Springs, for plaintiff in error.

Foard & Foard, Colorado Springs, for defendants in error.

HALL, Justice.

On September 12, 1956, Mabel A. Kiistner (herein referred to as Mabel), plaintiff in error, and Delbert L. Stever (now deceased, herein referred to as Delbert), then engaged to be married, entered into an ANTENUPITAL AGREEMENT, followed by their marriage on September 19, 1956.

Each had been previously married, the previous marriages having been terminated by the death of their respective spouses.

The parties had for many years lived in or near Ulysses, Kansas, and had known each other for over twenty-five years. At the time of the agreement Mabel lived at Ulysses and owned property there; Delbert then lived in Colorado and owned farm lands in Kansas and Colorado and a home in Broadmoor, Colorado Springs, Colorado.

At the time of the marriage Mabel was sixty-two years of age and Delbert sixty-four. Mabel had a daughter from her first marriage and Delbert had a son and a daughter from his first marriage. There were no children from the marriage of Mabel and Delbert.

In the agreement it was provided:

'* * * and the parties hereto desire to make suitable provision for their respective rights in said properties, in lieu of any rights of inheritance by the laws of descent and distribution, and all other rights of claims of said parties hereto, or the survivor of either of said parties; and

'WHEREAS, each of the parties hereto have been fully advised from the other party of the property which each of the parties own at this time.

* * *

* * *

'1. That each of the parties hereto upon and after their marriage, will retain their respective properties * * *, and that neither party * * * upon the death of the other, will inherit any of his or her property * * *.

'2. * * * That in the event [Mabel] * * * should survive [Delbert] * * * and should live with him as his wife until his death, then * * * in lieu of any and all interest to which she might be entitled as his surviving widow * * * [Mabel] shall receive the sum of $10,000.00 in cash * * * and * * * a life estate in said residence property [Broadmoor] * * *. As to all other property now owned by either of said parties hereto, or which may be obtained by either party hereto during the remainder of their lifetime, each of the parties hereto waives any rights of inheritance as the surviving spouse or heir at law of the other, and in the event of the death of either of them intestate, the property so owned by each of said parties, shall pass to their respective heirs or legatees the same as if such person had died unmarried.'

This agreement was not acknowledged when signed; however, on February 3, 1959 (two years and four months after the agreement was made and the marriage consummated), the parties appeared before an attorney in Colorado Springs, who caused to be typed on the agreement an acknowledgment, and each then and there, before a notary public, acknowledged the execution of the agreement. This was done in order to make the agreement eligible for recording in Kansas and to the end that certain Kansas property belonging to Delbert could then be sold and conveyed, and six tracts of Kansas lands standing in the name of Delbert were conveyed, Mabel signing the deeds.

On October 3, 1961, Delbert, in conformity with the terms of the antenuptial agreement, made a will, wherein he bequeathed to Mabel $10,000.00 and a life estate in the Broadmoor home

'* * * this bequest being made as according to a pre-nuptial agreement entered into between myself and my said wife prior to our marriage.'

Delbert died November 17, 1961, and his will was admitted to probate on December 5, 1961.

Shortly after the death of Delbert, Mabel removed all of the furniture from the Broadmoor home and...