Whipple v. Wessels

• Decision Date: 07 April 1919
• Docket Number: 9060.
• Citation: 66 Colo. 120,180 P. 309
• Parties: WHIPPLE v. WESSELS et al.
• Court: Colorado Supreme Court

180 P. 309

66 Colo. 120

WHIPPLE v. WESSELS et al.

No. 9060.

Supreme Court of Colorado

April 7, 1919

Error to District Court, Routt County; John T. Shumate, Judge.

Suit by Don W. Whipple against Myrtilla Adams Wessels and another. From a judgment for defendants, complainant brings error. Affirmed.

Gooding & Gooding, of Steamboat Springs, and Park & Gibson, of Denver, for plaintiff in error.

William H. Gabbert, of Denver, Arthur L. Wessels, of Steamboat Springs, and C. H. Haines, of Denver, for defendants in error.

SCOTT J.

From the record in this case it appears that in June, 1898, the plaintiff in error, Don W. Whipple, married Lucy Y. A. Adams then widow of James A. Adams, deceased; that at the time of this marriage Lucy Y. A. Adams was the mother of two children, Myrtilla and James C., defendants in error here that all of the property involved in this action, was the property of Lucy Y. A. Adams at the time of her marriage to Whipple, derived by her from and upon the death of her former husband.

Prior to the marriage of Mrs. Adams to Whipple, the parties entered into an antenuptial agreement, whereby she was to keep and dispose of her property separate, apart, and independent of her husband, Whipple, and that he should have no interest therein. About one month after the marriage, or in July 1898, the wife, Lucy Y. A. Whipple, executed her last will and testament, in which she devised her property in which she made several specific bequests, among which were $5,000 each to her children, the defendants in error, and $1,000 to her husband, the plaintiff in error, and the residue to the said children. Upon this instrument and at the time was written and signed by Whipple the following consent to such disposition of her property:

'I, D. W. Whipple, husband of the above-named Lucy Y. A. Whipple, do hereby fully and freely consent that the said Lucy Y. A. Whipple may dispose of all her property both real and personal, by her last will and testament to whomsoever she may desire without any claim or hindrance on my part.'

There were two codicils to this will, neither of which in any way altered the bequest to Whipple. One of these was dated October, 21, 1903, and contained an identical written consent by Whipple. The last codicil was dated July 31, 1909. On November 27, 1909, Mrs. Whipple died.

By the terms of the will, Whipple and the defendants in error were made joint executors. December 15, 1909, the three executors filed their petition in the county court on behalf of themselves and others, praying the probate of the will, and that letters testamentary issue to such executors.

Citation was duly issued to the heirs, legatees, and devisees. On the 24th day of December, 1909, the executors, including Whipple, filed their written acceptance of service, and on the same day signed and filed an instrument with the court, termed 'Appearance of Heirs,' of which the following is a part:

'Fourth. D. W. Whipple, Myrtilla Adams Wessels, and James C. Adams, each for himself. states that he is familiar with the terms and conditions of, and the bequests made by the said last will and testament of the said Lucy Y. A. Whipple, and the trust imposed upon each of them thereby, and each for himself approves and accepts of the same, and hereby consents that the said will and testament of the said Lucy Y. A. Whipple may be duly probated by the said court, and each does hereby waive all notice and copy thereof, as to the time and place and manner of probating the said will, and that letters testamentary issue as directed in the said will.'

February 28, 1910, the date set for the probate, some of the other legatees appeared and filed a contest of the will, Whipple appearing as one of the proponents of the will. On March 28, 1910, the contest was denied, and April 25, 1910, set as the date for hearing the report of Mrs. Wessels, who had in the meantime been appointed administratrix to collect. On the latter date such report was filed and approved and all the property turned over to Whipple and the other executors, who at that time had duly qualified and entered upon the discharge of their duties as such.

On April 6, 1910, Whipple, filed a statement with the county court which acknowledged notice of probate and admitted that he had appeared at the probate of the will, but declaring that he now elected to take a distributive share of the estate under the statute. The defendants in error moved to strike this instrument from the files. On May 14, 1910, Whipple filed a petition, alleging his notice and appearance at the probate of the will, and that he had made no objection thereto, but praying for an order of the court defining his interests in the estate as an heir.

The respondents filed a motion for reasons stated, to strike such petition from the files. These motions were denied by the court, and later respondents filed a demurrer to the petition which was likewise overruled. The respondents then answered, and the court heard the matter on the merits.

The court found that Whipple with full understanding of his legal rights in the premises had theretofore fully and freely elected to take under the provisions of the will, in lieu of his statutory rights in the premises, and decreed that the sole and only interest of said Whipple in and to the estate of Lucy Y. A. Whipple, deceased, is as legatee and devisee, as expressed in her last will and testament. Thereupon Whipple prosecuted an appeal to the district court where, upon the proceedings there had, the judgment of the county court was affirmed. Whipple then sued out a writ of error from the Supreme Court, the case being numbered 8004 in this court. Later, upon motion of respondents, the writ of error was dismissed by the Supreme Court.

On January 26, 1914, the clerk of the Supreme Court certified the judgment of that court to the clerk of the district court, whereupon the said clerk transmitted to the clerk of the county court a certified copy of the judgment of the Supreme Court, together with a writ of procedendo to the county court to proceed without delay to execute the judgment in all respects as though no appeal had been taken and in accordance with the transcript of the proceedings had and done in the district court. Thereupon, and upon order of the county court and due notice given, the executors filed their final report.

This report, among other things, shows the removal by the court or Whipple on July 7, 1910, as an executor of the estate, and also the payment to Whipple of $1,000, the amount bequeathed to him by the will. Whipple filed his objections to such final report, and on the same day filed a second petition in the county court, praying for the determination of his interests in the estate, which petition was the same in substance and effect as the one therefore adjudicated.

Thereupon the matter of the settlement of the estate was continued until the 25th day of March, 1914, at which time the petition for final settlement of the estate was allowed and approved in every respect, and the executors were ordered to distribute the property in accordance with the terms of the will, to pay the legacies, as expressed in the will, including the legacy of Don W. Whipple, which the court found had been done. Thereupon it ordered, adjudged, and decree that the rest, residue, and remainder of the estate (including each and every item of real estate mentioned in the petition of Whipple as belonging to the estate) be distributed, and the same was thereby distributed, to the respondents, share and share alike; that the estate be declared fully settled and closed; and that the title to the property in question be declared to be vested in the respondents, share and share alike, and that the executors be discharged. At the same time the petition of Whipple was denied. No appeal was taken from this judgment of the county court.

This is an original action in the district court, in which Whipple prays for the same relief as asked in the county court. The answer is a plea of former adjudication, and sets forth all the proceedings before stated, and the separate and final judgments in the courts, theretofore rendered.

Upon final hearing the district court rendered...