Duke v. Housen

590 P.2d 1340

Wyo.

1979

Check Treatment

“Pony” DUKE, Appellant (Defendant below), v. Margaret HOUSEN, Appellee (Plaintiff below)

No. 4811

Supreme Court of Wyoming

March 2, 1979

RAPER, C. J., McCLINTOCK and THOMAS, JJ., GUTHRIE, J., Retired and ARMSTRONG, D. J., Retired. ROONEY, J., did not participate.

accordance with the laws of descent and distribution in the State of Wyoming.”

Paragraph 2 of the amended judgment directed that all stocks and bonds in the estate be reduced to cash. Paragraph SECOND of the Johnson will provided:

“I hereby direct that all of my stocks and bonds be converted into cash at the present market value. These stock certificates are located in the safe of Mr. Howard Hanson of the Plains Hotel.”

Appellant contends that the trial court‘s judgment fails to recognize the distinction in the Johnson will between “property and money” and “money,” and argues that the Estate of Lillian Butler should only have received one-half of the remaining money prior to liquidation of Johnson‘s stocks and bonds. We will affirm the trial court‘s amended judgment.

In the first Kortz decision, we noted that the testator‘s intention is to be ascertained if at all possible from the meaning of all words used in the context of the entire will, citing

Percival v. Percival, Wyo., 526 P.2d 342 (1974). Appellant would have us look only to the fact that the testator used the words “property and money” when referring to the Cancer Society bequest and the word “money” when referring to the Butler bequest. Appellant reasons that since “money” generally does not include bonds or other items of personal and real property, and since a will generally speaks as of the time of the testator‘s death, the Butler Estate should only receive a portion of the cash on hand when the testator died. Stated differently, appellant contends that the Butler Estate should not receive monies which represented the proceeds of a sale of the testator‘s stocks and bonds.

While the word “money,” when used in a will, is often construed in its narrow sense as cash on hand or on deposit in a bank, it will be construed in a broader sense where the context of the will or circumstances surrounding its execution require that it be so interpreted. 96 C.J.S. Wills § 779, at 186. In this case, the word “money” must be interpreted as including the proceeds from the sale of the testator‘s stocks and bonds. See,

Zahn National Bank of Commerce of Dallas, Tex.Civ.App., 328 S.W.2d 783, 792-793 (1959). The testator directed that his stocks and bonds be converted to cash. There is no indication that the testator intended this direction to be other than imperative. Compare, , where we held it was not necessary to carry out a testator‘s direction to sell certain real property in order to carry out the testator‘s distributive intent. We hold, therefore, that the trial court was correct when it determined that the testator intended Lillian Butler‘s share of money remaining in the estate to include proceeds from the sale of testator‘s stocks and bonds.

Affirmed.

ORDER DENYING REHEARING

RAPER, Chief Justice.

After full consideration, it is, by a majority of the Court so deciding,

ORDERED that the plaintiff-appellee‘s Petition for Rehearing,

589 P.2d 334, be and is denied.

McCLINTOCK, Justice, dissenting.

The majority opinion has been a confusing and difficult one for me to read because of contradictory statements,¹ leaving me without a clear understanding as to just what is the holding of the court. I share the concern expressed in the petition for rehearing that the majority ignore two well-established rules of this court: that it will grant all favorable inferences to the appellee,² and that it is not the trier of the facts.³ I agree with counsel that not only has the majority made such findings but that they are not supported by and in some cases in conflict with the uncontradicted evidence.⁴ These, to me, are sufficient reasons for granting a rehearing but my chief concern and principal reason for dissenting from the denial of rehearing is my belief that the principal and concurring opinion both inject a new and improper element into the creation of an actionable tort. That new element is discovery of the damage resulting from the wrongful act.

Justice Thomas clearly and unequivocally states that discovery is such a necessary element. The principal opinion first states that the elements of a tort are a wrongful act plus injury, but the states of Pennsylvania, Iowa and Nebraska (all three being states where sexual acts took place and the disease could have been implanted and develop to the point of injury) are excluded on the basis that in those states discovery is necessary before any cause of action arises.⁵ In my view, under the undenied facts of this case, it is impossible for this court to exclude from consideration the state of Nebraska and its applicable four-year statute of limitations, except on the basis that discovery is an essential element of the tort. There was no discovery in Nebraska; therefore no action arose in that state.

I shall not reiterate the argument advanced in my dissent, that discovery is not an element of the tort itself but, as counsel for plaintiff express it, “starts the clock but does not determine the state in which the clock starts ticking.” I may be wrong in this view, but the principal opinion does not even discuss it. I think that the matter should be thoroughly discussed before we make discovery an element of the tort itself.

While I adhere to the principle in

Elmer v. State, 466 P.2d 375, 376 (Wyo.1970) that rehearing will not be granted “unless there is a reasonable probability that the court may have arrived at an erroneous conclusion,” I am of the opinion that the majority

ion the majority never succeed in this endeavor.

have done just that.⁶ I would therefore grant a complete rehearing.

Notes

To me, a glaring instance of contradiction is found by comparison of the statements at pages 349 and 351 of the Reporter (589 P.2d) with the finding and holding at page 345. The first statements mentioned are both to the effect that there is no testimony or proof as to just when the plaintiff was infected, with the further remark in the latter that the gonococci “may have taken hold at once following the first exposure or the results delayed until some later time. We cannot guess and will not try to.” At page 345 the majority say: “We find and hold that a cause of action arose in the state of New York on April 8, 1970 and April 21, 1970.” These are dates on which the parties had sexual relations in that state. The significance of these contradictions is emphasized by the earlier statement in the opinion at page 344 where after discussing the applicability of a foreign statute of limitations, it is said, “It thus becomes of acute importance in the situation at bar to specifically determine for limitation of action purposes, where and when plaintiff‘s cause of action arose.” In my opinion the majority never succeed in this endeavor.

; .

I particularly have in mind the testimony of Dr. Belletti, mentioned in my dissent, that transmission of the disease does not necessarily result from intercourse. See also the notes regarding chances of infection and time of incubation of the disease.

As to Pennsylvania and Iowa, I concede my point is unimportant because, even treating the limitation as beginning to run upon discovery, the action would be barred by their shorter statutes. It is clear, however, that unless discovery is considered a necessary element of the tort so that no wrong was committed in Nebraska, the action was brought as to that state within its applicable statute.

For a further discussion of my views concerning this rule see my dissent to denial of rehearing in .