Opinion
No. 73-389
Decided August 20, 1974.
In ancillary estate proceedings, district court entered orders striking widow's election to take against the will and striking widow's selection of property for a statutory widow's allowance. Widow appealed.
Reversed
1. WILLS — Domiciliary Estate Proceedings — Missouri — Ancillary Estate — Colorado — Real Property — Distribution — Colorado Law. Where domiciliary estate proceedings were opened in Missouri and ancillary estate proceeding were opened in Colorado, the distribution of the decedent's real property in Colorado is governed by Colorado Law.
2. Rule — Prohibits — Taking Against Will — Receiving Under Will — Precludes — Election — Ancillary Administration — Inconsistent — Already Taken — Domiciliary Estate. The rule which prohibits from taking against the will and receiving benefits under the will at the same time precludes an election in an ancillary administration which is inconsistent with an election already taken in the domiciliary estate proceedings.
3. Ancillary Estate — No Showing — Prior Election — Receipt of Benefits — Domiciliary Estate — Defense — Not Established — Preclude — Electing Against Will. Where, in attempting to preclude widow from collecting against the will in ancillary estate proceedings in Colorado, decedent's sister did not show that, prior to the election against the will in Colorado, the widow had received any benefits under the will, or that the time for making the election to take against the will in the domiciliary estate proceedings in Missouri had expired, a defense of equitable estoppel was not established by the sister which would preclude the widow from electing against the will in Colorado.
4. Assets — Domiciliary Estate — Insufficient — Widow's Allowance — Entitled — Satisfaction — Ancillary Estate. Where the assets of the domiciliary estate have been insufficient to satisfy the widow's allowance awarded in the domiciliary proceedings, the spouse is entitled to satisfaction of the domiciliary allowance from the assets in the ancillary estate.
6. Order — Domiciliary Estate — Sufficient — Prima Facie — Only Assets Listed — Burden — Showing — Property Did Exist — On Party Opposing — Widow's Allowance. Absent a showing of its revocation, an order of the court of the domiciliary estate proceedings in Missouri refusing to grant letters of administration is sufficient to establish, at least prima facie, that the estate of the decedent consists only of those assets acknowledged in that order, namely: $800 in proceeds from the sale of a pickup truck; therefore, the burden of establishing that other property did exist in Missouri which could be applied to pay widow's allowance was upon the sister who opposed the granting of such allowance.
7. APPEAL AND ERROR — Erroneous Ruling — Trial Court — Removed Evidentiary Issue — Estate Proceeding — Remanded — Opportunity to Present Evidence. Where the parties and the trial court have proceeded under an erroneous ruling which has removed an evidentiary issue from the case, remand is proper to receive the evidence, if any, which bears on that issue; thus, since erroneous ruling of the trial court in ancillary estate proceeding obviated production of evidence by sister who opposed the granting of a widow's allowance, the case should be remanded to give the sister an opportunity to present evidence on such issue.
8. WILLS — Widow's Allowance — Restricted — Amount Permitted — Domiciliary Estate — Entitled — Missouri Determination — From Colorado Assets — Less — Amount Received. Although widow is entitled to recover widow's allowance by virtue of Colorado allowance statute, the amount of recovery should be restricted to the amount she could have received had the assets in the domiciliary estate proceedings in Missouri been sufficient, and she is entitled to the allowance designated by the domiciliary state, and, since the Missouri court determined that a reasonable allowance would be $3,000, the widow is entitled to that amount from the Colorado assets less any amount she may have received from the Missouri estate proceeding.
Appeal from the District Court of Cheyenne County, Honorable Robert Sanderson, Judge.
Martin P. Miller, for widow-appellant.
J.F. Brauer, for beneficiary-appellee.
This appeal stems from two orders of the District Court of Cheyenne County striking (1) a widow's election to take against the will and (2) a widow's selection of property for a statutory widow's allowance.
Appellant, Jane Plazza Link, is the widow of the decedent, Peter P. Plazza. The appellee, Esther M. Clark, is a sister of the decedent. Peter Plazza died in November of 1969 in Missouri where he and his widow were residents. At the time of his death, he owned some real and personal property in Missouri, most of which was apparently jointly owned and not subject to probate. He also owned real estate in Colorado. His last will left all of his Missouri property to his widow and his Colorado property to his sister. No issues are raised in this appeal regarding the construction or interpretation of the will. A domiciliary estate was opened in Missouri and an ancillary estate in Colorado.
In December of 1969, the widow applied for and was awarded a widow's allowance of $3,000 in the domiciliary estate proceeding. The record indicates that there was only one asset subject to probate in the State of Missouri, a pickup truck. This truck was later sold for $800, and the sum was apparently available to apply on the widow's allowance and administrative costs. It was also determined by the Missouri court that there was no other real or personal property to pass under the will in Missouri, and no letters of administration were issued.
The widow then filed a document purporting to be an "election to take against will" in Missouri. She later filed an election to take against the will in Colorado ( see C.R.S. 1963, 153-5-4), and also filed a selection for the purpose of claiming a widow's allowance of $3,500 ( see C.R.S. 1963, 153-12-16). She also attempted to amend the motion to claim $7,500 as provided for in an amendment to the allowance statute (1969 Perm. Supp., C.R.S. 1963, 153-12-16).
In the ancillary estate proceeding in Colorado, the sister filed motions to strike the widow's election in Colorado and the widow's selection of allowance in Colorado. Both motions were granted by the trial court following the submission of briefs and arguments, but without hearing any evidence. The widow appeals.
The Election Against the Will
The sister's motion to strike the widow's election to take against the will in Colorado was based on the assertion that the widow had not shown the court that a valid election against the will had previously been filed in Missouri. The trial court agreed, stating that a valid election in the domiciliary estate was required, and that the court was unable to determine whether the election in Missouri was valid, but that the burden of proving the validity of the Missouri election was upon the widow and had not been sustained.
[1] It is undisputed that the distribution of the decedent's real property in Colorado is governed by Colorado law. Foster v. Kragh, 107 Colo. 389, 113 P.2d 666. See also In re Owsley's Estate, 122 Minn. 190, 142 N.W. 129. We must, then, look first to Colorado statutory law which permits the surviving spouse to elect against the will. C.R.S. 1963, 153-5-4 sets forth the requirements for a surviving spouse to make the election between that which he or she would receive under the will and one-half of the probate estate. Nothing in this statute expressly requires, in the case of an ancillary administration, that a valid election against the will be filed in the domiciliary state. Nor is the statute limited to cases in which Colorado is the domiciliary state.
While the Uniform Probate Code has now been adopted in this state, it did not become effective until July 1, 1974. Colo. Sess. Laws 1973, ch. 451, 153-8-101.
Compare C.R.S. 1963, 153-5-4 with Colo. Sess. Laws 1973, ch. 451, 153-2-201.
[2] It is generally held that the rule, which prohibits taking against the will and receiving benefits under the will at the same time, precludes an election in an ancillary administration which is inconsistent with an election already taken in the domiciliary estate. See, e.g., In re McAllister's Estate, 135 Minn. 357, 160 N.W. 1016. See generally Scoles, Conflict of Laws and Elections in Administration of Decedents' Estates, 30 Ind. L.J. 293. This rule is based upon the doctrine of equitable estoppel and is designed to prevent a surviving spouse from taking unfair advantage of the multi-jurisdictional distribution of the estate. The rule has been applied in two ways: (1) As an absolute bar to an election which is contrary to an election already made in the domiciliary estate, see, e.g., Colvin v. Hutchinson, 338 Mo. 576, 92 S.W.2d 667, 105 A.L.R. 266, and (2) by holding that, while the spouse may make an election contrary to that made in the domiciliary estate, the spouse must account for benefits received previously under a contrary election, see, e.g., Griley v. Griley, 43 So.2d 350 (Fla.); Murphy v. Murphy, 125 Fla. 855, 170 So. 856.
The first question with which we are faced is whether there has been an election, either to take under the will or to elect against the will, which binds the widow in the Colorado proceeding. We conclude that no such election appears to have been shown in the case before us.
[3] Since it is based on equitable estoppel, the assertion of a contrary election is an affirmative defense which must be pleaded and proved by the party asserting the estoppel, here, the sister. See Kimmel v. Batty, 168 Colo. 431, 451 P.2d 751; O'Byrne v. Scofield, 120 Colo. 572, 212 P.2d 867; Howard v. Fisher, 86 Colo. 493, 283 P. 1042. In attempting to preclude the widow from electing against the will in Colorado, the sister has not shown that, prior to the election against the will in Colorado, the widow had received any benefits under the will, or that the time for making the election to take against the will in Missouri had expired. A defense of equitable estoppel has not been established by the sister which would preclude the widow from electing against the will in Colorado. Under the facts before us, we conclude that the surviving spouse is entitled to elect against the will in the ancillary proceedings in Colorado and the trial court erred in striking the widow's election.
Widow's Selection for Allowance
The probate court also granted the sister's motion to strike the widow's selection of property for the widow's allowance filed by the widow under C.R.S. 1963, 153-12-16.
[4] The general rule is that a widow's allowance is controlled by the law of the decedent's domicile. Annot., 51 A.L.R.2d 1026. However, under the applicable statute, C.R.S. 1963, 153-12-16, there is no requirement that the surviving spouse be a resident of this state or that this state be the domiciliary state. We find no statutory bar to filing for a widow's allowance in Colorado, where Colorado is the ancillary jurisdiction.
Compare Colo. Sess. Laws 1973, ch. 451, 153-2-403, which requires that the decedent must have died while domiciled in this state.
It should be noted that while the widow's allowance claim in Missouri was filed and was granted by the Missouri probate court, the widow apparently does not seek enforcement of the Missouri order in this state. Whether such an order is enforceable against real property in this state ( see Annot., 13 A.L.R.2d 973) is therefore, not an issue before us. Rather, the widow seeks to receive an allowance under the Colorado statute.
The trial court ruled in denying the widow's selection of allowance, that:
"If the assets are not sufficient in the State of Missouri to satisfy a Widow's Selection of Allowance . . . by the law of that State, the domiciliary executrix could have required a transfer of sufficient funds from the State of Colorado, the State of ancillary administration to the State of Missouri for the purpose of paying the Widow's Selection of Allowance."
We can find no basis in law for this holding of the trial court. While such a procedure might well have been successful in obtaining the allowance for the widow, see, e.g., In re Schram's Estate, 132 Neb. 268, 271 N.W. 694, we know of no requirement that this procedure is the exclusive means of providing the widow's allowance under the circumstances such as are before us.
While the statutory amounts set for widow's allowances vary from state to state, the policy of providing such an allowance is uniform. That policy is to protect the surviving spouse during the period until a final distribution of the estate can be made. Bradley v. Bradley, 106 Colo. 500, 106 P.2d 1063; DeQuintana v. Madril, 71 Colo. 123, 204 P. 483; In re Polizoe's Estate, 246 S.W.2d 391 (Mo.App.). In re Stromberg's Estate, 119 Minn. 325, 138 N.W. 428. This policy should not be frustrated because the situs of the assets of the decedent's estate are located in more than one state.
[5] Although the jurisdictions are divided upon the issue of whether the surviving spouse is entitled to a widow's allowance under the law of an ancillary state, see Annot., 51 A.L.R.2d 1026, we conclude that the better rule is that where the assets of the domiciliary estate have been insufficient to satisfy an allowance awarded in the domiciliary proceeding, the spouse is entitled to satisfaction of the domiciliary allowance from the assets in the ancillary estate. See In re Stromberg's Estate, supra.
The sister argues that there is nothing in the record to show that the estate of the decedent in Missouri was inadequate to satisfy the allowance. Although the widow did file an affidavit stating that the only asset of the Missouri estate, a pickup truck, had been sold for $800, the sister argues that no evidence was taken and that the widow was not subject to cross-examination on the assertion made in the affidavit. We note, however, that the record contains an order of the Missouri court refusing to grant letters of administration under Mo. Ann. Stat. § 473.090 V.A.M.S. (Supp. 1974). That statute permits such an order "when the estate of the decedent is not greater in amount than is allowed by law as exempt property and the allowance to the surviving spouse or unmarried minor children under section 474.260 R.S. Mo. . . . "
[6] This order of the Missouri court, absent any showing that the order had been revoked in Missouri at the instance of creditors or other interested parties in that state, is sufficient to establish, at least prima facie, that the estate of the decedent consists only of those assets acknowledged in the order of the court: in this case, the $800 proceeds from the sale of the pickup truck. See Todd v. Security Insurance Co., 203 Mo. App. 474, 221 S.W. 808 (holding that such an order is a judgment entitled to the same weight as any other judgment). Therefore, the burden of establishing that other property did exist in Missouri which could be applied to pay the widow's allowance was upon the sister.
In substance, the sister has argued that she has met that burden. She argues that (1) the widow's affidavit refers to property held in "joint ownership" with the decedent, and (2) there is a presumption against the creation of joint tenancy. She deduces from these facts that the property was held in tenancy in common and not in joint tenancy and that, therefore, there is property of the decedent subject to administration in Missouri. Assuming that such presumption against joint tenancy exists in Missouri (although we have not been cited to any authority for that proposition), we conclude that it is irrelevant here. The presumption, if any, can only be applied within the context of certain conveyance language which is before the court; it cannot be applied in a vacuum.
[7] While this burden has not been met on the record before us, we conclude that the case should be remanded to the trial court to give the sister an opportunity to present evidence on this issue. The erroneous ruling of the trial court requiring the widow to seek an order from the Missouri court to the Colorado executor obviated production of evidence by the sister. Where the parties and the trial court have proceeded under an erroneous ruling which has removed an evidentiary issue from the case, remand is proper to receive the evidence, if any, which bears on the issue. Butin v. Rothman, 135 Colo. 477, 312 P.2d 783; American Insurance Co. v. Naylor, 101 Colo. 41, 70 P.2d 353; American Factors Associates, Ltd. v. Triangle Heating Sheet Metal Co., 31 Colo. App. 240, 503 P.2d 163.
[8] While we conclude that the widow is entitled in this case to recover a widow's allowance by virtue of our allowance statute, we rule that the amount of recovery should be restricted to the amount she could have received had the assets in Missouri been sufficient. See Mitchell v. Word, 64 Ga. 208. The widow is entitled to the allowance designated by the domiciliary state, and, here, the Missouri court determined that a reasonable allowance under Mo. Ann. Stat. § 474.260 (Supp. 1974) would be $3,000. Thus, she is entitled to that amount from the Colorado assets less any amount she may have received from the Missouri estate proceedings.
Judgment is reversed and cause remanded for further proceedings not inconsistent with this opinion.
JUDGE COYTE and JUDGE SMITH concur.