Pardee v. Kuster

89 P. 572 | Wyo. | 1907

Lead Opinion

Scott, Justice.

On May 18, 1903, Charles Kuster made and executed his will containing among others the following recital, viz.:

“Second — As to my property, both real and personal, I make the following disposition to take effect upon my death, viz.:

“To my beloved son, Charles F. Kuster, I do give, grant and bequeathe all of my property, both real and personal, within the State of Wyoming; he, the said Charles F. Kus-ter, however, not to have possession, manage or control of the same for two years after my demise * *

It is alleged that on the following day he signed an instrument, in form a deed, with covenants of warranty; purporting to convey to the plaintiff a house and lot situated in the City of Laramie, Wyoming, which instrument contained the following provision: “This instrument is to be in full force and effect from and after my death.” On May 21, 1903, two days after the date of the purported deed, the testator made a codicil to his will as follows: “I, Charles Kuster, of Laramie, Wyoming, having made my last will and testament bearing date the 18th day of May, A. D. 1903, do make this codicil to be taken as a part of the same:

“First — I hereby ratify and confirm said will in every respect, save so far as any part of it is inconsistent with this codicil.

“Second- — -In case Charles F. Kuster, my son, should die within t-vyo years after my death, I give and bequeathe to my beloved half-brother, Frederick Reinsberg, of Germany, and to (his) heirs and- assigns forever, unconditionally and without reserve, all the real and personal property belonging to me at my death.

“In testimony whereof, etc.”

The deed was never delivered, and upon the death of the testator it could not be found. The testator died on July 14, 1903, and on the 16th day of August following the will, executed on May 18, 1903, and the codicil thereto, executed on May 21, 1903, was duly admitted to probate and the defendant, Abrams, who was nominated’in the will, was duly appointed and qualified as executor. On July 23, 1904, the plaintiff commenced this action in the District Court of Albany County to establish the lost deed as a codicil to the will. She alleged in her petition that the deed had been lost during the testator’s life 'or fraudulently destroyed after his death. Upon issue joined the case was tried to the court without the intervention of a jury, and the court found generally and rendered judgment for the defendants. The plaintiff brings the case here upon error.

The defendants object to the consideration of any of plaintiff’s assignments of error on the ground that her petition filed in the court below does not state facts sufficient to constitute a cause of action. The sufficiency of her petition was raised by demurrer in that court and although it was overruled the defendants are not barred from raising the question here, for if such petition was not sufficient to support a judgment in her favor she cannot be heard to say that she was prejudiced by the entry of the judgment complained of. The will, codicil and deed are set out in the petition and the sufficiency of the latter turns upon the construction of these instruments considered together and thus constituting, as alleged by her, the last will of the testator.

By the terms of the will and the codicil all of the property, both real and personal, of which testator died seized was devised to his son, Charles F. Kuster. By the terms of the deed title to the house and lot should vest in the plaintiff on the death of the grantor, who is the same person as the testator in the will. The theory upon which this case was brought is that the deed never having been delivered to plaintiff no title passed by deed, and that the latter by its terms having held the title in abeyance until the death of the grantor that the deed was in effect a will or specific bequest of the property therein described. There is no question that the legal' title of the property was in testator up to and at the time of his death; he therefore died seized of the same. Conceding that the contention of the plaintiff is correct, that the deed was in fact executed and intended by testator, and that it should be construed by the court as a codicil, yet this would not prevent the testator from executing a codicil subsequent thereto and in conflict therewith. On the 21st day of May, 1903, or two days after the execution of the deed, the testator by the codicil re-affirms the provisions of the will executed by him three days before, except in so far as any part of it is inconsistent with the codicil. It is evident that the testator had in mind the provisions of the will to which this codicil was attached, for he expressly reaffirms those provisions and, without exception or recognition of any deed or specific devise, provides in the broadest terms that all of the property, both real and personal, of which he may die seized shall go to his son, if living, as provided in the will, and in case of his death, then to his half-brother. This codicil is of a later date than the deed which is sought to be established as a codicil, and it is apparent that its terms are in conflict with the deed. Giving the latter the effect contended for, plaintiff is in the position of claiming rights under a codicil which is in conflict with the terms of a later codicil to the will. It is well settled that the deed, if in fact it was a codicil to the will, must be construed as a part thereof, and in such construction the terms of a codicil later in date must govern when repugnant to or in conflict with the terms of the will or prior codicil thereto. (6 A. & E. Ency of Law, 186, and cases there cited.) And in this sense the word will is used to mean the will as first executed, together with all codicils, be they many or few, which have been added thereto, and the meaning and effect of which taken together is re-affirmed or changed by the last codicil; and the will so changed or re-affirmed speaks from the date of its republication by the last codicil. (Coale v. Smith, 4 Pa. St., 386; Graham v. Burch, 28 Am. St. Rep., 353; Gilmor’s Estate, 35 Am. St., 855; Linnard’s Appeal, 93 Pa. St., 316; 39 Am. Rep., 753; Hawke v. Euyart, 27 Am. St. Rep., 391; Matter of Stickney, 76 Am. St. Rep., 246; 161 N. Y., 42; McIntyre v. McIntyre, 102 Am. St. Rep., 71, and note p. 77.) It is an established rule of construction that “the codicil shall change the will only in so far as the intent is manifest; and the provisions of the will are not to be disturbed further than is necessary to give effect to the codicil.” (Holden v. Blaney, 119 Mass., 421.) The codicil, made and signed on May 21, 1903, republished the will, and took no notice of the deed, and the title to the property described in the deed remained in testator up to and at the time of his death. The provisions of the will as originally drawn with respect to the property here involved were continued in force as and from the date of its republication by the terms of the codicil and were repugnant and antagonistic to the claim of the plaintiff; the codicil being of a later date than her deed must under the established rules of construction be deemed to express the intent of the testator. Conceding the allegations of the petition to be true and' that the lost deed was in fact executed as a codicil to the will, then upon reason and authority the deed so construed was revoked and of no validity — its terms and provisions being antagonistic to those of a later codicil.

Upon the facts alleged in the petition and in this view of the case it becomes unnecessary to discuss the evidence the sufficiency of which is in dispute and upon which the court found for the defendants; nor is it here necessary to discuss the rules governing the establishment of lost wills, for as already indicated if the evidence was sufficient for this purpose still by the rules of construction the finding and decree of the court was right and should not be disturbed.

The judgment will be affirmed. Affirmed.

Potter, C. J., and Beard, J., concur.

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Rehearing

ON PETITION FOR REHEARING.

Scott, Justice.

The plaintiff in error has filed her petition for a rehearing upon the ground that the defendants in error filed no cross-assignment of error to the overruling of their demurrer to the petition. It .is urged that in the absence of such cross-assignment the question of the sufficiency of the petition was not before the court. Taking that view, she submitted no oral argument thereon, nor did she refer to this question in her brief. The defendants in error called this court’s attention to the question and devoted a considerable part of their brief to its discussion.

The case is analogous to Fell v. Muller, 78 Ind., 507, in which it was said: “The real question for discussion in this case is: Did the appellant’s complaint state a cause of action in their favor against the appellee? If it did not state a valid or sufficient cause of action against the appellee, and we think it did not, then it is clear that the appellants were not harmed by any of the rulings of the trial court adverse to them and the judgment below must be affirmed.” In that case there was no assignment of cross error and the decision turned 'on the provisions of the civil code of that state to the effect that no judgment shall be reversed by reason of any error or defect in the/ proceedings which does not effect the substantial rights of the .adverse party. Sec. 3744, R. S. Wyo., 1899, is as follows: “No exception shall be regarded unless it is material and prejudicial to the substantial rights of the party excepting.” In order that the exception may be considered, it must be material to a substantial right. It is just as essential to show a substantial right either by the pleadings or the record as it is to preserve the exception. A failure to do either would furnish no basis for a review of an alleged error. That there is no substantial right upon the whole case may appear from the allegations of the petition, though where there has been a trial it is not generally so, and in most cases that question involves an .examination of the entire record. If the party complaining shows by his petition that no valid cause of action exists in his favor against the defendant, then he has failed to show a substantial right, and in such case any and all of his exceptions should be disregarded because harmless. It will be observed that the petition was not defective by reason of the absence of averment or want of allegation of an existing fact. The execution of the deed, its terms, the time aiid the purpose for which it was executed are alleged and taken in connection with the other allegations clearly set forth the claim of the plaintiff. She was bound by the allegations of her petition and nowhere, either in the record or by suggestion in the argument, does it appear, nor are we able to discover that any amendment could be made. The defect goes to the question as to whether she has any cause of action, or right to recover, upon a full and complete statement of all the facts. The error is fundamental in that it affirmatively appears that no allegation of an existing fact can be brought into the petition by way of amendment and thereby perfect it so that it would support a judgment in her favor. The error is not in failing to plead all the facts, but rested in an attempt to predicate a right of recovery upon a complete statement of facts when no such right exists. It is not the defective statement of a cause of action, but a showing of no cause of action. Such a petition can neither be cured by answer, verdict or judgment. (Giddings v. Baker, 2 O. St., 21.) This case is distinguishable from the Indiana cases (Anderson, &c., Assn. v. Thompson, 88 Ind., 405; Farmer’s Bank v. Orr, 25 Ind. App., 71, 89) cited by plaintiff in error in support of her petition. In those cases the defect did not consist in the absence of any cause of action, but did consist in the omission of a material' averment in the allegations of an existing cause of action. The theory of those cases is that by failing to demur or to assign cross error the pleadings were treated by the parties as being complete, and it was presumed that evidence was submitted and heard and findings made upon issues necessary to support a judgment even though there may have been an absence of averment of some material fact. (Secs. 471, 720, Elliott App. Proc.)

The defendants in error asked no affirmative relief — they had obtained a judgment in the court below with which they were satisfied. They sought neither to vacate nor modify it and did not assign the ruling on the demurrer as error prejudicial to them or at all. The finding and judgment being in their favor, the overruling of the demurrer was not available to them. (Blessing v. Blair, 45 Ind., 546; Rogers v. State, 99 Ind., 218; Reddick v. Keesling, 129 Ind., 128; 28 N. E., 316; Allen v. Berndt, 133 Ind., 355; 32 N. E., 1127; Thrash v. Starbuck, 145 Ind., 673; 44 N. E., 543; Levi v. Allen, 15 Ind. App., 38; 43 N. E., 571.) Nor was the decision based upon the exception to such ruling. The presumption of the correctness of the judgment was necessarily against the contention of the plaintiff in error and the burden was on her not only to show error upon the record (Sec. 4249, R. S. 1899), but that the error complained of was material and prejudicial to her substantial rights. (Sec. 3744, R. S. 1899.) In this jurisdiction a defendant in error has always been accorded the right, without assigning cross error, to direct our attention to different parts of the record presented for review to show that an alleged error was not prejudicial. All parts of the record so presented are accessible to the defendant in error for that purpose. 'When the complete record is before the court, as it was in this case, the justice of the rule is apparent. It is not within the power of the plaintiff in error to open the record at certain places to sustain his contention and close the balance to the defendant in error. The entire record was in the court for the benefit of the parties and the court. The pleadings constituted a part of the record of the case. (Sec. 1, Chap. 3, S. L. 1901.) If the erroneous admission of evidence may be shown to be without prejudice by consulting other parts of the bill, we see no reason why it could not also be shown by consulting the pleadings, for the latter are as much a part of the record as is the bill. The materiality of the evidence is determined by the issues, and when the petition affirmatively shows the non-existence of any legal cause of action there can be no issues of fact and no right of recover. Hence, the admission or rejection of any evidence would be harmless to the plaintiff. She had no standing in court and is, therefore, not in a position to allege or urge prejudicial error. When no affirmative relief is sought the defendant in error is not precluded from showing from the record the non-prejudicial character of the error complained of, and we hold that this rule is sufficiently broad to enable him, without assigning cross error, to urge that a full and complete statement of the facts as appears in the petition in this case constitutes an affirmative showing of no cause of action or right of recovery in the plaintiff, and that it would not for that reason support a judgment in her favor. It should be remembered that what is here stated and what we said in the opinion filed is directed and applies to the kind of a petition involved in this case, and we here express no opinion as to one which is defective merely by reason of the absence of averment.

The plaintiff in error has presented a brief upon her contention as to the construction which should be placed upon the documents construed together as the last will of the testator. We discussed the question in the opinion filed and after considering the authorities cited in her brief we find nothing in conflict with that opinion. We are still of the opinion that the reference in the codicil is not merely by date, but by other words which clearly indicate that it was the document executed on May 18, 1903, by itself which was within the contemplation of the testator. (McLeod v. McNabb, App. Cases (1891.) It may be conceded that when A. devises to B. and over to C., the latter upon the accrual of his right takes all of the property which B. would have taken under the will. By the codicil the testator substituted Reinsberg as devisee in case of his son’s death. It was evidently the intention of the testator to provide that the devise of his property as contained in his will should not lapse and as relating back and showing the extent of that devise the language used in the codicil is material. It is from the context of the will-and the codicil thereto that this question must be determined. It will be noticed that the codicil does not merely confirm the former devise and say that in the event of the death of the primary devisee then the property devised to the latter shall go to Reinsberg, but it goes further and designates the property devised over; it says that in that event all the real and personal property owned by testator at the time of his death shall go to Reinsberg, his heirs and assigns forever, unconditionally and without reserve. It -is unreasonable in the face of this language which discloses the evident purpose of testator to prevent a lapse of the previous devise to his son to say that such previous devise was less in its scope than the devise over. The language of the codicil as a whole shows that the testator must in confirming the provisions of his will have intended his confirmation of the devise to his son to be equally as broad as the devise over to Reinsberg. If title to the property described in the deed vested in petitioner, then no contingent interest therein vested at the same time in Reinsberg upon the death of the testator. The latter’s title was to accrue and vest upon a contingency disassociated with and antagonistic to the idea of the ownership of the property ever having passed to plaintiff in error. The title by devise to the property in controversy never vested in Reinsberg, nor could it except upon the hypothesis that the testator contemplated and by his codicil confirmed and ratified by itself the document which was executed on May 18, 1903. This intention of the testator is apparent and clearly appears from the codicil. It is not a case of latent ambiguity calling for parol testimony, nor is it so contended, and the question was one of construction to be determined and ascertained from the words and language used by the testator in these documents. (Secs. 956, 1025, 49, Cent. Digest.) The later codicil operated as a complete revocation of the former devise of the same property to the plaintiff in error regardless of whether the testamentary deed be construed as a codicil or treated as a will by itself. (1 Jarman on Wills, 171, 173; Rood on Wills, Sec. 336, and cases cited in support of the text; 1 Redfield on Wills, 350, 351, and cases there cited.) It does not appear that the conclusions reached in the opinion filed are in any wise erroneous or that any new questions are presented by the petitioner.

Rehearing denied.

Potter, C. J., and Beard, J., concur.