In Re Estate of Scott

children, to-wit: personal, my beloved RAPER, THOMAS, Before ROONEY and Scott, E. Ann John Jr. Eulah BROWN, JOHNSON, JJ., ALAN B. equal shares.” District Judge. Scott, (hereinafter referred to John E. Jr. ROONEY, designated executor. appellant) as Justice. petitioned is from entered in On March appeal This orders will, hearing objections court for probate after a on appointed executor on 1966. petitions for distribu- was Eulah Ann only presented by tion. issues On October lant, him, petitioned the to order an worded are: Grieve by any party, question or it be ever is raised The first and fundamental every appeal jurisdiction; motion. raised the court its own [Cita- on Walker, Wyo., waived; question open it is tion.]” cannot Gardner reviewing consideration court when- There were two demands made accounting, filed his first case; by appellee in this one Grieve and one 1976. He filed accompanied by Neither was by appellant. his final account and for distribu- Thus, requisite deposit. 26,1977. July Appellee Grieve then tion on filed justified in denying requests court was for a accountings. jury. v. Wyoming Davidek Invest court found number of Company, Wyo. ment improprieties the manner in which (1957).2 Accordingly, we need not address lant the estate and in the administered time argued questions concerning the timeli September 22,1977, taken to do so. On concerning ness of the demands or suspended appellant as executor and right jury,” aby e.g., issues were “triable of accounting appointed appellee special Tobin as adminis- ademption. matters trator. Tobin made annual report a filed accounting fourth for distribu- ADEMPTION 14,1980. Appellant tion on November filed Although appellant had previously owned objections thereto. some of the Ranches, stock in Inc., effect, hearing, a sus- of the stock therein by was owned testator appellee tained accounting appellant’s objections Grieve’s date, 1964. On that ranch made and denied by land owned ferred the corporation was trans- accounting by it appellee Grieve. In his first petition for by appellee distribution made accounting, appellant commented that Tobin. “dispose did not question of the Additional facts to the resolu- of the advancement by made the Testator separate tion of the issues will be set forth to Eulah during Ann Grieve his lifetime and in the discussions thereof. after the execution of this Will to his death.” In his final accounting, appellant recites that the ranch land by transferred the deceased to appellee Grieve on January JURY 8, 1964 had a $250,000, then net value of 38, W.R.C.P., provides Rule in pertinent and he requests present that the value be determined and be offset as an advance- “(b) Demand. ademption ment or “(1) By Any party may de- Whom.— Grieve’s distributive share of decedent’s es- a jury mand ble of the other trial issue tria- tate. right by jury by a serving upon Ademption has been defined in several parties a demand therefor in ways: writing time after the com- mencement of the action and not later “Ademption means ‘a taking away.’ For days than 10 after service of the last purpose our property, particular if the piece of * * * pleading directed to such issue. personal, real or is not found in ****** the estate and the bequest or devise can not be fulfilled there is said to be an “(3) Jury Fees.—All demands for trial ” ademption. Estate, In Re Bierstedt’s by jury be accompanied by a de- 772, 119 254 Iowa 234, 236 N.W.2d * posit of twelve ($12.00). dollars ****** “ * * * Ademption is ‘revocation, recall- ing, or cancellation, of a “(d) legacy, Waiver.—The party according failure of a apparent testator, intention a required serve demand as by this rale implied by the law from acts done by constitutes a waiver him him of trial jury life, though such by jury. A acts demand for do not trial amount to an express revocation provided made as herein of it.’ may not be with- * * * Von Steinner Sorrell, v. drawn without the par- consent of the Md. 269 A.2d 605 (1970). ties.” “accompanied deposit In mand with was controlled stat- a of twelve 3-2422, W.C.S.1945, ($12.00) required a ute. Section dollars waiver fee” was deemed a by jury. party jury, a trial written if a demand desired a provided it that failure to make such de- present evi- improperly denied the act which a testator ‘[T]he would show deceased’s inten- dence which tion to have the ranch-land transfer gener pays legatee in his lifetime to his operate pro al his will he had legacy, which lega- ademption else, as cy. satisfaction death; give posed to him at However, even if the evidence were become specific legacy act which has even it established testa- admitted and tor’s intent to vancement, testator inoperative on account have transfer be an ad- parted subject.’ with [Cita operate so unless it could not Wickliffe, 206 Mo. Wickliffe tions.]” App. fact, was not gift. were a In transfer 226 S.W. Thus, gift. we need consider better, in- consequently “It would seem in- propriety of evidence as to deceased’s attempting to deduce from the stead of tent. definition of the cases all-inclusive ‘ademption,’ point out that an term Additionally, we need not consider the legacy of a or devise re- ademption sult from stances, argued ademp- of whether or questions variety a of causes or circum- to be applicable tion is to that which is mentioned, may among which clause, or a whether received under residual specific property, gifts in the case of the to legislature speak not the of the to failure property of the the nonexistence per- in is advancement suasive,3 testate estates testator, consumption, or its death loss, tion, contempora- a and whether or not by sale, disposal gift, or other aliena- writing gift is to required neous make the form, change during in the life- or time of general operate as an advancement. testator, and, the in the case of pecuniary legacies, gift or a from or Ademption through satisfaction or advance the testator to a benefi- operate only trans can if the advancement will, made either ciary mentioned gift. If the transfer were other fer were a forgiveness property in cash or or the a wise, chargeable against it would not be Wills, indebtedness.” 80 Am.Jur.2d an iton or a satis legacy an advancement 1702,pp. 756-757. § the itself is legacy it inasmuch as faction of on a cannot be an “advance” gift. a There here, Appellant, seeks to be allowed gift. of a gift other than means present through to of ademption evidence was and or the transfer a sale advancement show that was intended satisfaction. He desires to In this gift. Appellant refers to the transfer transfer the ranch land not a gift, to court found gift testator be a as a but con- to his death of that which Grieve to have been for “valuable transfer evidence through otherwise receive his will. There was sufficient would In sideration.” issue, was presenting appellant support finding. does this The transfer this to to W. warranty ask rule matter law deed “Burt us to as a of legacy that made in as tenants appellee adeemed. But he contends that he was Grieve’s residual was and Eulah S. Grieve common.” consideration, As the Grieves only tion began 1977), 1980)provides The the the The personal vancement and shall charged.” (Emphasis before govern shall after the effective date of this “(d) “Where “§ with 2-41, 2-1-102 other heirs desire it to be judge present Probate Code in which was in effect when have received in his him, reference to intestate estates. Sec- any of the children of the intestate estate, W.S.1957 determine the amount of such ad- shall shall hear proceedings ** Probate Code provided: by way of advancements * cite speaks (later herein proof upon lifetime, parties advancement, (effective April of advancements probate brought charged 2-3-105, code. to be any real subject, appear W.S. him, thus or termines which he treated as ter’s work an in way desire it to be cite the hear ings in procedure acknowledged writing by advancement. “(c) contemporaneous writing by the “§ 2-4-108 also “(a) his lifetime When govern If a proof upon or share of ^[*] parts parties advancement, injustice, gave shall person application particular proceed- further ^[*] charged thereof is not advancement heir apply.” pending * estate in which event the former ^[*] real dies appear procedure subject, lifetime in only unless the court de- ^[*] him, intestate, property personal before intestate receives the heir to be an and shall feasible in ^[*] to declared proceedings decedent other him, an heir is the lat- ^[*] or will deter- heirs shall shall in a or $127,200delinquent payment assumed After this several debits and credits to mortgage property figure real estate subsequent accountings as a $7,500by paid about check and cancellation result of a review of the transactions be- existing Certainly, of an debt. tween estate, half-in- and the the result- ing terest transferred to Burt W. Grieve not be said to be an advancement to lee amounts were set could forth in the court’s order. Grieve. And could not be said to be original inventory appraisement an advancement to Burt W. Grieve inas- did not reflect debt as he much was mentioned the will. estate, but the first appellant, As so often said: filed January incorporated by ref- “ ** * erence number of unaudited financial appeal reviewing [0]n prepared statements by Certified Public Ac- assumes that the evidence favor of the countants Maey, Shamley true, Associates, party successful leaves out of copies yearly income tax returns of consideration entirely evidence the estate and a copy of the presented federal estate unsuccessful party that tax return. The estate tax return conflicts with the successful dence and reflected party’s evi $117,706.87 that the amount of gives was due the evidence of the suc estate from of at the time of party every cessful favorable death inference figure testator.4 This also listed as reasonably fairly be drawn an asset the estate on the financial state- City Springs from it. of Rock 15,1966. ment of March many Association, Police debits Wyo., Protective appellant’s and credits to accounts, See Madrid v. Nor amount listed on the ton, most recent financial (1979); 596 P.2d 1108 Aetna statement as a debt from Casualty Johnson Surety $83,156 estate was Hartford, accepted amount Connecticut, of Company Wyo., —the by appellee Tobin as the amount then due. (1981). 630 P.2d 514 probate The jurisdiction court had The sale of the ranch lands to appellee to control and review the management of Grieve could not be an ademption of estate the executor and to issue residuary of clause the will since it was a orders requiring him to account for pay sale a gift. probate and not The court did estate estate assets coming into excluding not err in evidence relative to possession. jurisdiction It had to set off deceased’s intent with reference to the sale. against appellant’s entitlement from the es error, if Even such it was harmless. tate such amounts as appellant owed the estate as a result of mismanagement or JURISDICTION misapplication of estate funds. Such action probate court directed that: relates to administration, settlement “ ** * The remainder of the real estate and distribution of the estate. But the sold, shall be with the indebtedness of Mr. probate court cannot determine validity estate the amounts of of alleged' claims against the de $210,793.00with per interest 10% an- ceased which are contested as properly in 13, 1979, August $3,495.00 num from cluded in the estate. “ per with interest at 10% annum from the ‘While in this state the district court is judgment, date of this to be added to the the court general jurisdiction, and the proceeds net the sale with one-half of same court has (sec Constitution that amount Mrs. Grieve and be distributed to 10, 5) tion jurisdiction art. “of all matters remainder, any, if probate,” yet, in the exercise of its Mr. Scott. In the event of a deficiency, probate powers, its is limited judgment take and special, and probate when its acts in Mr. Scott. are without [beyond] the limits of the Tobin’s reflect that special jurisdiction conferred, they have when took over the administration of the no binding effect “even upon those who ’ ” estate, figure $83,156 he accepted the have invoked authority.” In appellant’s from amount then as the Re Stringer’s Estate, Wyo. 80 345 due estate from (1959), 789 rehearing being mine the amount of such privilege using advancement or the alternate date was charged.” (Empha- advancements to be thus not exercised. sis 1292 except I in the court’s decision concur 389, 343 P.2d 508 Wyo. 80 denied for prevents insofar as it district court’s Quin from Church v. (1959), quoting entering judgment proceeding in this 224 er, P. Wyo. 31 the estate any deficiency it finds Scott owes Estate, 30 (1924). In Re Black’s See distribution of available assets. after (1923); Matter of 216 P. 1059 Wyo. Frederick, Estate of Maintaining the fictional line drawn be- Blaney, of Estate of (1979); and Matter court sitting tween the district in law and Wyo., 607 P.2d equity sitting amounts to a pagan worship of the idol of stare decisis. can Accordingly, vestige is a of archaic times. We no against a debtor judgment render require separate longer actions to be filed alleged to have been on a debt

the deceased equity side of the district court. The If such debt is prior to the death. incurred judge, same the same clerk of bring the action must paid, the executor courthouse, same and the same courtroom proper. in the district for collection serve the district court in all its func- successful, judg proper If the action is tions. district court. issue out of such ment will require separate To action to be filed in case, the setoff appears In it satisfy precedent order to as to a matter began distributive share against appellant’s already tried or which can be tried $117,706.87 appears which figure with a single proceeding judicial is the ultimate in possibly been a the record to have from inefficiency. It makes about as much sense to the testator be- debt owed courtroom, two benches in the so, de- fore his If death. handling one to sit at when equity law and debt, opportunity sires to contest handling cases and another when so in an action afforded him to do should be matter, requiring robes, different colored brought against him in district court. Of sitting equity, purple black when in law and claim, course, acknowledges agrees if he sitting probate. when it, (by accepting pay pay and does to setoff, I have examined the source of this rule otherwise), matter can be goes Quiner, back to Church v. fash- within the estate in the same handled Wyo. (1924) 224 P. 1073 and In re instance in which estate ion as is other Estate, Black’s Wyo. 216 P. 1059 voluntarily surrendered to the assets are In the last cited there was gave We executor administrator. adopted language Strong’s the of In re Es appellant that thought proposition to the tate, 119 Cal. 51 P. an 1898 existence of the may agreed have which held that whenever the acts of the listing it on the estate tax return debt probate, though court in general a court of fig- and debits to that credits jurisdiction, are without the limits of the However, accountings. in his ure jurisdiction conferred, special they are nu objections report to the final gatory binding and have no effect even Tobin, allegations in appellant denies upon authority. those who invoked its concerning alleged debt of report rule is without reason. It would have been $210,793. In appellant in the amount of simpler say juris “the district court has event, judgment upon which collec- jurisdiction.” diction but does not have No amount owed to tion can be made upon where in the relied cases is the reason his death must be from the deceased before stated, for such a conclusion nor do I think proper. district court spirit it is within Wyoming Con with directions to We remand the case stitution, Art. 10: § amount, probate court to ascertain the “The district original jur- court shall have $210,793 $3,495 any, if of the allowed isdiction of all causes both at law and in represents alleged claim setoff which cases, equity and in all criminal of all existed before the against appellant matters of insolvency and of deceased, death of and to amend order special proceedings such cases and as are accordingly, necessary. provided not otherwise for. The district part and reversed in part, Affirmed in original court shall jurisdiction also have remanded. in all cases and of all proceedings in jurisdiction which not have been exclusively law vested RAPER, Justice, concurring part in in some other court; pow- and said court shall have the dissenting part. in er of papers carefully naturalization and to issue been considered Court; They therefor. have appellate being such and it noted that as one of the jurisdiction grounds in arising justices’ cases for rehearing, appellant advised respec- deposit and other inferior courts in their that the paid by'appellee had been tive counties as law. Grieve at the time she jury made a demand judges Said courts and their shall have connection with her power mandamus, issue writs of final account and of quo for distribution warranto, review, certiorari, prohibition, Although the record did not injunction reflect, corpus, writs of habeas so on has furnished a copy petition by person or on behalf of receipt payment. for Had the record custody actual respective their reflected payment, dis- such the result would tricts.” have been the Appellant recognized same. that there generally right no to jury I need to something see there prohib- which accounting Wyo. Estate, issues. In Re Kiesel’s its what the district court has done or will (1926). However, 249 P. 81 statute, do in this estate matter. The argued that such existed with refer- 2-2-101, W.S.1977, part of Wyo- § (1) ademption'issue, ence to: (2) ming Probate Code recently readopted, but any liability part on the been years, has books prior appointment which arose to his including during period the entire as executor. argument The second was administration of the estate we now con- made immaterial our holding relative to sider, prohibition contains no that I can see: impropriety determining pro- “The district courts of the state have proceedings appellant’s bate liability to the original jurisdiction exclusive of all mat- appointment estate which arose as executor. With tion to his relating ters and contest of ademp- reference to the testaments, wills and granting let- issue, the trial court made its determi- testamentary administration, ters and of nation that on there would not be a trial and the settlement and distribution of time, 1979. At the 2-6- § decedents’ estates. The court granting 403, W.S.1977, provided was effect. the letters has exclusive of all touching matters the settlement and dis- made, questions “All or as to advancement tribution of have estates for which letters made, alleged have been granted.” been heirs, may decedent to his be heard and “All touching matters” and “all matters judge determined the court or the settlement and distribution the es- tates for The section granted” repealed by which letters have been was the Probate pretty seem all-inclusive to me. Code which Ch. Under that became effective 1980. language, I believe a complete disposition Wyoming S.L. of 1979. can and justified. should be the case was assigned to judge, another determination that there would not be a When the new Wyoming Probate Code trial was reaffirmed on September adopted, purposes one of its was to The second undoubtedly had “[pjromote a speedy system and efficient foregoing quotation together in mind for liquidating the estate of the decedent provision with the following of the Probate distribution to his successors.” Code which became effective 1980: 2-l-102(a)(iii), Section W.S.1977. That is procedure herein good policy any time. We can throwing out an start * * * govern procedure further concept ancient no longer proceedings in probate pending, ex- valid. that, cept to the opinion extent in the I would have respects affirmed in all the proceedings application particular permitted the district to make and parts thereof would not be any judgment enter probate proceed- in the injustice, feasible would work in which ing necessary complete justice to do without event the former Ch. apply.” a separate the folderol of proceeding. of Wyoming S.L. ORDER DENYING PETITION

FOR REHEARING Appellant having filed a Petition for

Rehearing matter, in and the same

Case Details

Case Name: In Re Estate of Scott

Court Name: Wyoming Supreme Court

Date Published: Apr 1, 1982

Citation: 642 P.2d 1287

Docket Number: 5598

Court Abbreviation: Wyo.