Matter of Estate of Reno
604 P.2d 550
Wyo.
1979
Check Treatment

*1 automobile. The officers stated that at this they already looked inside the

automobile. When defendant was asked if

the officers could search his vehicle he in

formed them that had already find, therefore,

searched the car. I cannot

that McCutcheon’s statement ahead voluntary

and look awas consent

purged illegality initial intrusion.

His consent acqui search a mere

escence to authority inseparable lawful illegal search and con consent. State v. voluntary

sidered as a

Little, 810, 812, Or. cert. 955, (1967); Burrows,

denied 390 supra, U.S. 166, 174-175, Cal.Rptr. 529 P.2d at 598-

I would reverse and remand the case for proceedings.

further Floyd

In the Matter the ESTATE OF RENO, Sr.,

C. Deceased. RENO,

Mathew Executor of the Estate Floyd Reno, Sr., Deceased, C. (Petitioner), RENO, Appellee (Objector).

Dollie M.

No. 5152.

Supreme Wyoming. Court

Dec. 26, 1979.

change her surviving his or election if the not been notice and advice has judge. court notify did held that rights her appellee of uhder the and advise statute, appellee therefore the her has the to revoke We affirm. Reno, Floyd

Following the death C. Sr., 18, 1976, petition on June a for 23, July September was filed on 1976. On pro- 1976 an order was entered Mr. admitting bate court Reno’s will into attorney probate. day On that same a letter to Dollie for estate forwarded Reno, surviving spouse, in M. Mr. Reno’s conversation that had had to a copy of 2-4- concerning the estate. A § 2-47, (at that W.S. § W.S.1977 Cum.Supp.) and two alternate accompanied the of election forms notice sign urged letter. The letter Mrs. Reno of the notice of election forms. one acknowledged had Mrs. that she Reno letter and the documents from received the Furthermore, attorney for the estate. had read the Mrs. Reno stated she statute and believed that sign quired the notice forms her hus- within 30 date her probate. was admitted to She band’s will impression it was her also testified if not return one of the forms she did by the statute she specified within the time contempt of court or it would be held “in some- up proceeding or would hold Roberts, Morgan Brorby, Thomas & D. thing.” Gillette, appellant. for necessary it emergency A made D. Robert and William Omo- W. Schrader state of Wash- for hundro, Buffalo, appellee. for 2, 1976, where she ington on November During January, until remained J., RAPER, Before C. and MeCLIN- Washington, in Mrs. Reno was time that THOMAS, ROONEY, TOCK, JJ. ROSE telephone conversations and she several McCLINTOCK, Justice. for the attorney with the corresponded also one- desire to receive regarding estate present appeal raises related is- two rights mineral First, of the decedent’s fourth sues: whether the noti- Before taking under the will. fied a addition to and advised thought 2-4-101, going Washington under the election attorney W.S.1977, required by she had retained own as negotiations Second, represent a whether heirs; however, appears Appellant’s that Mrs. first contention is that provided attorney negotia- did not enter into complied have been with. tions with the heirs. upon bases contention On November 1976 Mrs. Reno presumption that there constructive re waiving election form notice of ceipt probate judge’s letter and fur to take one-fourth of her husband’s estate *3 thermore that Mrs. Reno had actual notice under the election statute. When Mrs. of right of election the from estate’s Reno to take the will elected under she was However, of these attorney. neither facts impression under the the negotiations is to satisfy sufficient the of with the other heirs completed had been or pro the election statute. Section 2—4-101 would be finalized by the time the court pertinent part vides in a per that married received her waiver. leaving surviving son children descend 16, probate by previous On 1976 ants of judge marriage, November children a and no by sent a to such children descendants of the mar certified mail Mrs. Reno’s riage existing at of the time his or Story, notifying Wyoming address her of bymay dispose death will not to exceed her rights under the election statute. Mrs. three-fourths of his or her real and Reno that she never received the testified persons estate to the surviving probate judge, letter from the and there is spouse. spouse the surviving If no in evidence the record to indicate other- one-fourth, optional less than it is with him wise. The record does reflect that this let- or her to to elect take one-fourth of the ter accepted by stepfather. provision estate in of any lieu for the sur stepfather Mrs. Reno had authorized her to viving in the will. The section con collect her mail while she was in Wash- tinues: ington. “In default of such the will election shall Accounting The Final and Petition for govern estate, in of the distribution 23, Distribution was filed on November cases, but in each of the above in not less 1977. When Mrs. Reno received a copy of (60) than sixty days following the admis- this document she became aware for the probate, sion of the will to judge first time she was receive one- probate court shall advise the surviv- fourth of the subsequently minerals. She ing spouse right of his or her of election objection filed an Accounting the Final explain and fully right shall such and on Petition Distribution December consequence thereof. In event 29, 1978. probate judge duty fails in his to advise within time limit hearing After on February a was held particulars provided in the in this 1979 court found that Mrs. section, then time the election Reno “any had not received notice or advice shall extended to court with thirty (30) days include such after election,” rights to her nor “were explanation by rights fully explained, or the conse- (Emphasis added.) . .” quences rights and actions ex- plained” probate judge. It therefore As previously this court has discussed in held the Reno election that Mrs. Miller, Wyo., Matter of Estate of void. The court at proceeded the same time (1975), 30-31 before 1957 the give advice con- automatically election six expired months cerning under after the will was admitted granted her 30 in which make an provision statute contained no requiring provided election as in the statute. Mrs. probate judge notice and advice timely filed an election take one- surviving spouse. In re Hartt’s fourth of the estate in of taking lieu (1956), under will. this court held that a was not widow enti- scribing that case is to assert that the wid- the will after against tied to elect to take notice of what period, ow there had constructive statutory even expiration Yet we are sure that provided. the statute know that she though the widow did not amending legislature in- the statute period. during had a bring a different result in decision, tended to about Undoubtedly response to this Similarly, situations. to hold that the language in 1957 included legislature principle agent that notice to an is notice to specifically direct- the election statute case, principal applicable in this give notice of ed “the plain language would be to subvert the election to the surviv- explain requiring explana- advice and the statute ing spouse.” Matter of Estate of place, showing there is no tion. In the first 541 P.2d at ever stepfather that Mrs. Reno’s had notice required to construe the Although we are anything; the most that can be said is it is notewor- statute as it existed document, that he received the not that he *4 in a consolidation thy legislature, that read it. There is no reason to assume that code, effective probate and revision of the stepdaughter’s his open he would and read 1, 1980, April requires still impose mail. The dissent would therefore right given judge explain to advise and notice upon notice constructive constructive only it is after surviving spouse charged to hold Mrs. Reno spouse to there has been a failure of such “agent” properly that it cannot be said her Chapter respond that the will controls. explanation, is importantly, had. More it Wyoming 2-5-101 and of S.L. §§ required by not notice that is legislature, well be that It contemplate not and that statute does to be harsh considering the rule in Hartt explanation being delivered to some third surviving spouse’s and inimical to the best might close he be to the person, however interest, could have avoided the effect pass the infor- may may who not by merely requiring thereof that a notice be spouse. mation on to the forwarded to the sur We consider the statute clear and viving spouse. We are not concerned with held, unambiguous. this court has when As legislature the motives that induced the clear, we will not look statutory language explana require advice further construction, nor will statutory rules of carry concern is to out the man tion. Our meaning to the stat we attribute another legislature. date of the While the dissent is State, Wyo., ute. v. Sanchez correct in the view that the statute does not Director, (1977); rel. Worker’s ex State explicitly prohibit receipt” “constructive Tallman, Compensation Wyo., Division notice, it is nevertheless the case that (1979). We therefore only that the not requires the statute reject argument that the statute appellant’s his or her surviving spouse inform the requires only that the notice explain the conse right of election but also to the election be mailed quences right. of that Matter of Estate of necessarily not that such notice does concepts The supra, 541 P.2d at 31. judge. given by have to be “explanation” are com of “advice” and supports the district The record construc pletely at odds with notion of per finding Mrs. Reno did not court’s that notice. Both bear the connota tive words letter from the sonally receive the is, communication, tion of that that the elec explaining under person addressed receives and understands receipt tion statute. Constructive can explanation the advice and so that he re satisfy is not sufficient intelligently act in the matter. Such advice Therefore, Mrs. of the statute. quirements explanation impossibility if the are an and advice as Reno was not explanation is not received. document required by the election adequate If there is constructive notice that further contends principle then no difference in between this finds that the notice way de- even if this court Certainly case and Hartt. Furthermore, quirement of election statute has I believe that the majority met, been Mrs. Reno revoke her places opinion an and unnecessary onerous They support conten- on impediment an estate. by pointing tion fact that record requires, majority opinion prac- as a contains no evidence matter, bring that the court tical ignorance facts, the waiver in of material purpose, personally before it for the of ad- ignorance statutory right an elec- vising him or her of to make an any testimony tion. Nor was there estab- thereof. lishing undue influence or fraud would can it positive allow How else this court set aside her election to agree take the will. under While we required was received as record reflects that Mrs. Reno knew she fact, opinion? opinion will autho- had a take under the will or elect to prevent timely progress rize a estate, take one-fourth of the also shows probate proceedings by making herself or misappre- her election was made on a himself through unavailable the advice— agreement hension that she had an trip Washington or otherwise. The heirs would which have vested her with vacuum, spouse does not exist in a but has somewhat more she received under the obligation in a some to react reasonable will. inequity per- There is therefore no his fashion information in or her actual mitting her to withdraw from this election. possession. or constructive event, In any this knowledge does not alter the fact Reno was not notified does not mandate that *5 contemplated the by advised in manner given personally. advice be It does not 2—4—101. As this § court stated Matter prohibit receipt” “constructive thereof as is supra, Estate of at by majority opin- read into the statute right “. . . of election does not case, In this ion.1 the failure to receive the given terminate until notice is either to by advice was her own widow in her lifetime or to It fault. was her that agent did not for- representative after her properly ward the document was which sent death.” by the court to her address. There is no wants her change widow mind “[I]f controversy over the fact the court during period statute, fixed in the she containing mailed a letter the necessary In supra, do so.” re Hartt’s address; advice Mrs. Reno’s that it was present at 990. case Mrs. receipt request- sent certified mail —return to make an election under the ed; that was by received at address statute thirty did not terminate until stepfather; her and that she authorized him after she advised by was receive mail. With reference to this election, was and she there- authorization, she testified: fore not barred from revoking her And, “Q. did he other mail receive you?

Affirmed. RAPER, ROONEY, Justice, dissenting, with whom Chief Justice, joins. “A. He received [*] [*] [*] all my [*] mail. [*] [*] “Q. He pick up I was agree authorized requirement 4^101, here W.S.1977 was not met. mail? 2— 1. The statute does not trial Even should the cast convert be the role of counselor, require- into counsel for the he could “advise” or “ex- seldom attorney-client relationship plain” proceedings ments of should not further at the time in the at Any explanation be required, read into the statute. full which such is as the inasmuch inven- by consequences” tory appraisement “of court estate of the would not normally election could be little more as be time. available at that accomplished by the words of the statute. edge Yes, of the will and its contents as well “A. he was.” as of dower pro- received mail relative She nature, know and she bound to its address, including the estate at bate of space year that if she omits for the Settlement, Notice of Final return dissent, she cannot claim signify stepfa- signed by her receipt for which was ” dower.’ ther. case involve issue Hartt did not permitted to avoid the should not be She or not was whether advice of her own purpose of the statute virtue properly given. It the issue as to involved arrange failure to for transmittal her of necessary whether or such was at all. not legal and communications sent to business legislature subsequently amended the designated the address her. require giving statute to advice or underlying “It is a fundamental rule notice. such to require It did agency principal structure of law that the stated, and, already personally; I believe for, by, liable the acts which is bound adequately pursuant advised agent with or his does within actual authority apparent principal, from the unequiv- clearly I believe statute agent’s scope and within the of the em- ocally I interpretation sets forth the here * * Agen- *.” 3 ployment Am.Jur.2d would, thus, agree I Normally, to it. Wettlin, (1962), citing cy 261 Jones the court its state- (1928) among many 271 P. unambig- is clear and ment that the statute other cases. However, we uous. since the fact is that I would in a written hold concerning the mean- disagreement are in form, spouse’s statute, mailed to the address would language I must ing of the satisfy the ab- is not clear and requirement conclude that and that the aforesaid deter- unambiguous showing sent a communication necessary. legislative intent mination of not delivered to that address. legislative recent attention Certainly, legislative holding gives This effect to the emphasizes the dissatis- procedure intent, It is contrary. gen- rather than the *6 re- therein such as formality faction with thought erally that the 1957 amendment to opinion. quired by (relative advising W.S.1977 “ex- The of the words “advice” and use spouse concerning to make an signifi- have no planation” in thereof) election “Advice” and cance in this determination. a result of court in the the decision “explanation” routinely customarily are of In case Re Hartt’s writing given in and with constructive (1956). 295 P.2d 985 Hartt case held in happen- ceipt ordinary with in connection presumed effect ings everyday life. Labels and directions have and of election thereof explaining the contents and uses consequences. Against its the widow’s con- daily purchased many are on articles that she tention that “she did not know Acceptances many marketplace.. in the will,” to dissent from the business world daily made contracts duty on court held that there was no when to the offerer’s are effective mailed (she part of the executors to so advise courts, opinions of address. Decisions and duty), they contended that had this one, explaining the nature including this following at quoted approval page solutions, and advis- controversies their Stephens Gibbes, 999 of 295 from v. P.2d ing actions are effective relative to future Fla. are actual- when issued whether or “ executors, ‘Neither the the other devi- anyone. Many other instances ly read creditors, or legatees, sees nor are in can in which communica- be referenced legal obligation sense under an or issued and tion effective when uttered provisions particular person group the widow notice of the directed to a (as to the actual presumes persons the will. without The law knowl- distinguished constructive) receipt

thereof. pertinent timetable in the case is:2 -

9/13/76 Will probate. admitted to -

11/16/76 Court mailed letter of advice to address,

Mrs. Reno’s certified receipt requested. mail—return -

11/18/76 receipt signed Return by Mrs. stepfather. -

11/30/76 Mrs. Reno Notice of Elec- tion to take under the Will. —

12/6/76 Notice of Election filed with the

court. Therefore, 2-4-

101, W.S.1977, relative to the accomplished were within the therein, specified

times and the court’s or-

der to the contrary should be reversed with being

the case remanded for proceedings

accordingly. Jacqueline Meeker,

Cecil MEEKER and (Plaintiffs),

Appellants Kay Lanham,

Joe K. LANHAM and E.

Appellees (Defendants).

No. 5165.

Supreme Court of Wyoming.

Dec. *7 option 2.The fact that Mrs. Reno had actual knowl- the other inheritors for me. I have the edge going Floyd’s taking an election and of the Will or under the make pertinent thereof is not Wyoming whereby statutes of the I state case, except emphasize determination of this would be entitled to one-fourth of the entire absurdity necessity the advice estate. personally. That she had such “Rather than ask for one-fourth of the estate record, places evidenced in several in in- very I would like to with the Will but feel cluding postmarked her statement in a letter strongly equal I am entitled an share November bargaining position “I 1976 that would be in a better Floyd’s mineral in lieu of one-fourth sign if I don’t & file the one of the entire estate. taking including following the wills” and your “Please contact the other inheritors at contents of her letter to Mr. Swanton dated my earliest convenience since decision must November papers be made and the filed before Decem- greatly you, appreciate “I would if ber 13.” Floyd’s lawyer for his estate would contact