White v. Wyoming Nat. Bank of Casper

• Decision Date: 21 February 1962
• Docket Number: No. 3044,3044
• Parties: William Jesse WHITE, Appellant (Defendant and Cross-Complainant below), v. The WYOMING NATIONAL BANK OF CASPER, as Executor of the Estate of Jesse M. White, Deceased, Appellee (Plaintiff below), Mrs. Lena Chapman, Mrs. Theresa Kurpies, (Defendants below), Father Flanagan's Boys' Home and St. Joseph's Orphanage, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 960

368 P.2d 960

100 A.L.R.2d 1044

William Jesse WHITE, Appellant (Defendant and Cross-Complainant below), v. The WYOMING NATIONAL BANK OF CASPER, as Executor of the Estate of Jesse M. White, Deceased, Appellee (Plaintiff below),

Mrs. Lena Chapman, Mrs. Theresa Kurpies, (Defendants below),

Father Flanagan's Boys' Home and St. Joseph's Orphanage, Appellees (Defendants below).

No. 3044.

Supreme Court of Wyoming.

Feb. 21, 1962.

Donald E. Jones, Torrington, and R. Jerry Hand, Casper, for appellant.

Richard A. Tobin, Casper, and Joseph F. Maier, Torrington, for appellees.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Justice PARKER delivered the opinion of the court.

The executor of the estate of Jessie M. White, deceased, brought an action against the several beneficiaries under her will, seeking by declaratory judgment to determine its authority to sell certain property for a price less than that mentioned by the testatrix in a provision for the sale.

There is no dispute about the facts. The will, dated March 26, 1960, consisted of four typewritten pages, apparently drafted by the testatrix herself. The first of its five sections directed debts and expenses to be paid out of the estate, the second nominated the executor and authorized the sale of the estate property, the third and fourth nominated the attorney and trustee, respectively, and the fifth, quite lengthy, contained a provision regarding the sale of the hotel property but related principally to a trust fund to be established for the benefit of William Jesse White, her son, with a provision that the balance go to Theresa Kurpies and Lena Chapman or the survivor at the time of her son's death and if neither survived that the balance be paid to Father Flanagan's Boys' Home at Boys Town, Nebraska, and St. Joseph's Orphanage at Torrington, Wyoming, share and share alike.

The two portions of the will principally emphasized by the litigants were:

'I NOMINATE, CONSTITUTE, AND APPOINT. WYOMING NATIONAL BANK, AS EXECUTOR, OF MY ESTATE, AND THAT THEY BE ENPOURED [sic] TO SELL AND DISPOSE OF ALL REAL AND MIXED PROPERTY, OR INTEREST THEREIN, OF WHICH I MAY BE SEIZED OR POSSESSED OR TO WHICH I MAY BE IN ANY MANNER ENTITLED OR IN WHICH I MAY BE [sic] INTEREST AT THE TIME OF MY DEATH.'

'I HEREBY DIRECT MY EXECUTOR TO SELL AS SOON AFTER MY DEATH. AS IS PRACTICAL MY HOTEL PROPERTY AS DESCRIBED. AMERICAN HOTEL 244 SOUTH CENTER, STREET CASPER WYOMING, NATRONA COUNTY. LOTS NINETEEN AND TWENTY. BLOCK TWO. FOR ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150.000.) AND ALL MONEY FROM SAID SALE IS TO BE PUT IN THIS SAID TRUST FUND.'

The evidence developed the fact that the American Hotel property, which had been appraised for some $60,000, was comprised of a downstairs portion, rented to various business institutions for some $600 per month, and an upstairs hotel portion, which the executor had been unable to operate profitably; that the executor had advertised this property for sale but had received only one bid of $61,250; that the other property in the estate amounted to approximately $70,000; and that the estate should net after expenses about $100,000. It was also disclosed that deceased had listed the hotel property at different times before her death, once at $85,000, and another time for $100,000.

The trial court, after stating jurisdictional requisites, found that the executor was authorized to sell the hotel property and was not restricted in the sale to the price of $150,000 but might sell at such price and upon such terms as it could obtain in accordance with Wyoming laws governing the sale of real property from decedents' estates.

William Jesse White, son of deceased, has appealed, contending that the general powers granted to the executor by the testatrix must yield to specific directions, that the language of the quoted portion of paragraph five is clear and must be construed as written, that the word 'direct' is mandatory, that to allow the sale of the property for less than the mentioned $150,000 would be an unauthorized rewriting of the will, and that the directions as to the manner of selling the real property are binding upon the executor.

Appellant to support his first point cites In re Lendecke's Estate, 79 Wyo. 27, 329 P.2d 819, 822, for the rule that where there is an inconsistency between a general and a specific provision in a will the latter will prevail regardless of the order in which it stands but especially if the specific follows the general. While this is a correct statement of law, it is not applicable in the present situation, at least to the exclusion of correlative principles such as were implicit from the decision in the Lendecke case. If there are clauses in a will which are apparently inconsistent and repugnant, the court should, if possible, harmonize them so as to give effect to each in accordance with the...