87 P.2d 745 | Colo. | 1939
CLARA B. Stitzer died testate on May 5, 1935, leaving as her only heir at law her husband F. A. Stitzer, then 95 years of age, who is the defendant in error here. By her will, after making a number of bequests to relatives and friends, Mrs. Stitzer left the residue of the estate to her husband for life and after his death to her three sisters. In due course her will was presented for probate to the county court of the City and County of Denver, and shortly thereafter the husband filed a caveat contesting the will on the grounds of lack of testamentary capacity and undue influence. At the trial of the contest in the county court the will was upheld and admitted to probate. From the county court judgment the husband *531
took an appeal to the district court where his contest was sustained. The proponents then brought the case to this court for review with the result that the judgment of the district court was reversed and the validity of the will upheld. Peterson, Ext'r v. Stitzer,
July 26, 1937, the will was returned to the county court from the district court under a remittitur from the Supreme Court, and, in accordance with the directions of the latter, was therein finally admitted to probate and record. August 21, 1937, the husband filed in the county court a petition which, after reciting that he had "heretofore filed herein his election not to take under the alleged will" of the decedent, requested that certain specifically described real and personal property be set aside to him as a part of his one-half interest in the estate. July 25, 1938, the executor, plaintiff in error *532 here, filed in the county court a petition asking that the purported election of the husband be declared a nullity. The county court, the Hon. H. Lawrence Hinkley presiding, after hearing, overruled the petition of the executor, who then appealed to the district court, which reached the same conclusion, and its judgment, entered accordingly, is before us for review. The statute relating to the matter here presented for consideration, section 37, chapter 176, '35 C. S. A., reads as follows: "If any testator or testatrix, leaving a wife or husband, him or her surviving, shall by will give, bequeath, or devise away from such surviving wife or husband more than one-half of his or her property or estate, such surviving wife or husband may, in her or his option, and notwithstanding such will, take and receive one-half of the property or estate, both real and personal, of such testator or testatrix; provided, that such surviving wife or husband exercise such option by filing in the county court, in which such will is admitted to probate, within six months thereafter, her or his election in writing to take and receive one-half of said property or estate; and upon such filing of such election within said time, any such will shall be inoperative as to such one-half of said property or estate. The failure to make and file such election within said period of six months shall be conclusive evidence of the consent of the surviving wife or husband to the provisions of such will."
[1] As his primary contention, plaintiff in error asserts that the purported election, having been filed before
the will was admitted to probate, is without force and effect, and maintains that our pronouncement in Sheelyv. Sheely,
Prior to the adoption of statutes fixing the period subsequent to which the election of the surviving spouse is precluded, in Colorado as in many other states, where the right of election, unrestricted as to time, was provided, much unnecessary delay and uncertainty in the administration of testate estates was occasioned. As illustrative of this situation, see: Hodgkins v. Ashby,
[2, 3] By the enactment of the statute here under consideration the legislature, undoubtedly taking into consideration the time required for the filing of claims, inventories and other pertinent matters, merely provided what it deemed a reasonable season of delay with the penalty of the loss of the right if the election was not exercised before the expiration of the limited period. The obvious purpose of the statute is to assure timely notice to the court, to those in charge of the administration of the estate, and to all persons interested therein, that the surviving spouse is dissatisfied with the will and elects to take and receive one-half of the estate under the statute. We are unable logically to perceive the difference in efficacy as notice between an election filed in the probate proceedings before the admission of the will and one filed afterwards within the limitation period. Nor are legal rights prejudiced by the filing of the election before the admission of the will, since if it is admitted, the election ipso facto may become operative as of that time, but if probate is denied the effort of the surviving spouse becomes merely a futility. In the light of these considerations, it is our opinion that the county and district courts were right in overruling the petition *534
of plaintiff in error. In accord with this conclusion in the case of In re Altman's Estate,
We note that the opinions in Harding's Adm'r v.Harding's Ext'r,
[4, 5] Secondarily, plaintiff in error contends that the purported election is ambiguous, uncertain and contingent which, it is said, renders it insufficient to constitute an election under the statute. The statute, supra, prescribes no specific essentials with reference to the form of election other than to require that it be "in writing." In view of this paucity of requirements it would seem that any written form of notice which accomplishes the purpose of informing those charged with the administration of the estate that the surviving spouse is dissatisfied with the will and is asserting statutory rights, would be sufficient. In re Clark's Will,
In view of our determination that the election filed before the probate of the will was an effective exercise *536 of the option of the surviving husband to take under the statute, it is unnecessary to consider the effect of the petition filed after the issuance of the remittitur inPeterson, Ext'r v. Stitzer, supra, nor to determine whether the will was admitted to probate in the county court as of the date of its original order or when the second order was entered in accordance with the remittitur.
The judgment is affirmed.