Stringer's Estate, In re
| Decision Date | 18 August 1959 |
| Docket Number | No. 2871,2871 |
| Citation | 80 Wyo. 389,343 P.2d 508 |
| Parties | Matter of the ESTATE of Charles L. STRINGER, Charles Limuel Stringer, also known as Chas. L. Stringer, Deceased. Bertie M. STRINGER, Appellant (Defendant below), v. Wilhemine M. L. MILLER, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Henry A. Burgess and Bruce P. Badley, Sheridan, for appellant.
G. R. McConnell and Walter Scott, Laramie, for appellee.
Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.
Following the death of Charles L. Stringer, deceased, his widow, Bertie M. Stringer, petitioned the court on December 4, 1957, for the appointment of an administrator of his estate alleging that he had died intestate. The following day, one Wilhemine M. L. Miller filed a petition containing two causes of action. In the first cause, an instrument dated December 8, 1952, was offered for probate and in the second cause, an instrument dated August 26, 1949, was offered, the petition praying that one or the other of these instruments be admitted to probate as the last will and testament of the deceased. Thereafter, on January 2, 1958, Bertie M. Stringer filed her petition for the probate of an instrument dated March 22, 1954.
During the hearing that followed, the parties stipulated the 1952 instrument had been properly executed as a last will and testament of the deceased. As it was not available, a copy was received in evidence.
At the conclusion of the hearing which was held, and following submission of briefs by counsel, the court found that the petition of Wilhemine M. L. Miller, asking alternatively for the probate of either the 1949 instrument or the 1952 instrument, was contested by Bertie M. Stringer and that the petition of Bertie M. Stringer was contested by Wilhemine M. L. Miller. Inasmuch as Bertie M. Stringer had originally filed her petition that letters of administration be granted on the theory that the deceased had died intestate and later had filed another petition for the probate of the alleged will of 1954 of the deceased, we must assume from the court's findings that this meant Wilhemine M. L. Miller contested both of those petitions. The court also found generally in favor of petitioner Wilhemine M. L. Miller and against petitioner Bertie M. Stringer; that the 1954 instrument was a carbon copy; that the unsigned original of such instrument had not been signed by the deceased; that the subscribing witnesses did not see the deceased execute the carbon copy offered for probate; that the signature of the deceased appearing on the carbon copy was not proved; that there was no proof deceased had signed the 1954 carbon copy, either within or without the presence or hearing of the subscribing witnesses or at all; that the signatures on the 1949 and the 1954 instruments were not identical; that the proponent of the 1954 instrument had failed to meet the burden of proof that the document was the last will of the testator or was valid and in full force and effect; and that the court should deny the probate of the 1954 instrument.
As to the 1949 instrument, the court found the deceased and his pre-deceased first wife, Emily K. Stringer, had executed identical wills except for the substitution of names where the context so required, and one of those wills was the 1949 instrument for which probate was sought; that there was a pre-will conference and contract to make such joint and mutual wills between the parties; that there had been established a contract to make the testamentary disposition in those 1949 wills; that the contract was supported by sufficient consideration in that the deceased Charles L. Stringer, the husband, promised to devise and bequeath property in which he and his wife had an equal interest, in a particular way, in consideration of a similar promise on the part of Emily K. Stringer, the wife, and that in reliance thereon each executed his and her separate will dated the 26th day of August, 1949; that Emily K. Stringer, the wife, died in December 1952, and her will executed in pursuance of the contract was thereafter probated by the deceased Charles L. Stringer, who accepted the benefits provided him under his wife's 1949 will.
The court then found there was a valid and existing contract between the deceased Charles L. Stringer and his first wife, Emily K. Stringer, deceased, to execute the joint and mutual wills of August 26, 1949.
The court further found there was insufficient evidence to establish the existence or validity of the December 8, 1952, will; that the August 26, 1949, will of the deceased, Charles L. Stringer, was duly and validly executed and in full force and effect on the date of his death, and that the subsequent marriage of the deceased to Bertie M. Stringer did not revoke the 1949 will nor was it revoked by any will or wills subsequently made; that the 1949 will of the deceased should be admitted to probate and the costs should be assessed against Bertie M. Stringer.
Upon these findings the court adjudged and decreed that the petition for probate of the 1954 instrument be denied and that the petition for issuance to Bertie M. Stringer of letters of administration with the will annexed be denied; that the petition of Wilhemine M. L. Miller for letters of administration with the will annexed and for probate of the 1949 instrument be granted and that the 1949 instrument be admitted to probate as the last will and testament of the deceased; that the petition of Wilhemine M. L. Miller so far as it pertains to the 1952 instrument be denied and that the 1952 instrument be denied admission to probate; that there was a valid and existing contract between Charles L. Stringer, deceased, and Emily K. Stringer, deceased, for the execution of joint and mutual wills; that the deceased Emily K. Stringer had performed her part of that contract and that the deceased Charles L. Stringer had accepted the benefits of that contract by and through the probate of the estate of the deceased Emily K. Stringer; that the 1949 will of the deceased Charles L. Stringer which was being admitted to probate was the performance of the contract on the part of Charles L. Stringer, deceased, and the costs of the contest were assessed to Bertie M. Stringer.
From these findings and order and judgment of the court, Bertie M. Stringer appeals.
It may not be amiss to comment that, in strict propriety, the 1949 wills should not be referred to as joint wills, inasmuch as they were not contained in a single instrument. As is pointed out in 97 C.J.S. Wills § 1364, e, pp. 286-287, 'the terms 'joint wills' and 'mutual wills' are sometimes inaptly used interchangeably.' There seems, however, to be no question but that the two wills executed in 1949 were mutual wills and were reciprocal in their provisions.
Appellant insists there was error in considering for probate at the same hearing all the instruments offered. Appellant contends that the court erred in receiving evidence regarding the 1949 and 1952 instruments at the same hearing had on the 1954 instrument. This, appellant says, is because the 1949 and 1952 instruments contained petitioner's affirmative allegations that there was an oral agreement to make the 1949 will and that the hearing upon the 1949 and 1952 instruments had been set immediately following that upon the 1954 instrument. Appellant also asserts that the court had expressly said the hearing was to be upon the 1954 instrument and indicates this meant the hearing would be only regarding that instrument, and that it was after both sides had rested that the court changed its mind and decided the hearing was upon all probate files relative to the estate of the deceased Charles L. Stringer.
Our examination of the record shows that all the court said at the commencement of the hearing was in answer to appellant's counsel's inquiry, 'Do you want me to make an opening statement at this time?' To this the court replied, 'Call your witnesses merely for the purpose of proving the due execution of the will.' This statement falls short of expressly saying the hearing would be solely upon proof of the 1954 instrument. It merely advised counsel to proceed with the proof of his case.
Appellant says this change afforded appellant no opportunity to object to evidence relating to the purported 1949 oral agreement to make a will and afforded appellant no opportunity to call witnesses, and, therefore, it constituted a denial of due process of law and gave appellant no opportunity to be heard. And appellant further contends it was error for the court to consider the issue of the oral agreement, at the time of hearing proof for the admission to probate of the 1954 instrument. Again we must disagree with appellant. An examination of the record shows that after the appellee-contestant had rested, the court stated that it desired to have briefs, and appellant's counsel then inquired if the three cases, which we understand referred to the probate of the 1949, 1952 and 1954 instruments, were consolidated for the hearing. To this the court replied in the affirmative. Appellant's counsel then attempted to obtain a stipulation from opposing counsel respecting the 1952 instrument, and when he did not succeed, requested the appellee to elect between the causes of action for probate of the 1949 or 1952 instruments. This resulted in appellant's counsel agreeing that by her pleading, appellant had admitted the validity of the execution of both the 1949 and the 1952 instruments. Thereupon, appellant's counsel requested the right to continue to call witnesses about the 1952 instrument, and then appellant's counsel, without any objection from either opposing counsel or the court, proceeded to and did call Bertie M. Stringer for further examination.
Under these circumstances, it is clear the appellant was not...
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Hanft v. City of Laramie
...judicial admission or confession, which binds all parties and the court."). In [485 P.3d 387 Stringer v. Miller (In re Stringer's Est. ), 80 Wyo. 389, 343 P.2d 508, 512 (1959), this Court admonished the trial court for ignoring a stipulation. We stated that "[t]he court was not privileged t......
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Hanft v. City of Laramie
...has the effect of a judicial admission or confession, which binds all parties and the court."). In Stringer v. Miller (In re Stringer's Est.), 80 Wyo. 389, 343 P.2d 508, 512 (1959), this Court admonished the trial court for ignoring a stipulation. We stated that "[t]he court was not privile......
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