Opinion
No. 22523.
Decided October 6, 1969.
Action by daughter involving filing of claim and asserting interest in certain real property included in estate of her mother. From order striking claim as barred by statute of limitations, plaintiff brought error.
Reversed.
1. LIMITATION OF ACTIONS — Claim — Real Property — Hearing — Lack of Evidence — Bar — Statute of Limitations — Premature — Error. Where plaintiffs filed claim in mother's estate asserting one-half interest in certain real property, and where at hearing on claim — and before any evidence had been heard — counsel for executor moved for order striking claim contending it was barred by either Statute of Frauds or Statute of Limitations, and where court, after questioning counsel for plaintiff on nature of case concluded that claim was barred by running of Statute of Limitations, held, conclusion of trial judge — made before plaintiff had opportunity to present evidence when alleged trust on property at time of transfer from plaintiff to her mother was repudiated and when Statute of Limitations began to run — was premature and constituted error.
2. EXECUTORS AND ADMINISTRATORS — Claims — Hearings — Formal Pleadings — Negative — Issues — Statute. In an action under C.R.S. 1963, 153-12-5, which provides for hearings on claims filed in estates, there are no formal pleadings and the issues are formed at the hearing.
3. Claims — Hearings — Evidence — Amendment — Conformance — Issues — Testimony. At hearings on claims filed in estates, the general rule is that plaintiff is permitted to produce his evidence; and if it develops that he has established one ground for his claim rather than another, he can amend his theory of the case to conform with the issues raised by the testimony.
Error to the District Court (Probate Division) of Arapahoe County, Honorable Donald P. Smith, Jr., Judge.
Robert H. Kiley, for plaintiff in error.
Shivers Banta, M. O. Shivers, Jr., for defendant in error.
The plaintiff in error (hereinafter referred to as the plaintiff) filed a claim in the estate of Esther B. Mills, her mother, who died testate on April 1, 1964. The claim was filed on November 10, 1966 and asserted a one-half interest in certain real property included in the estate of the deceased by her will. The property in question had been inherited jointly by the plaintiff and her mother from the estate of plaintiff's father. The plaintiff executed a deed purporting to convey her interest in this property to Esther Mills by warranty deed on November 7, 1944, and the deed was recorded by Mrs. Mills on April 5, 1945. The rights of the plaintiff in the property, as set forth by the claim, are based on an alleged trust imposed on the property at the time of the transfer.
A hearing on plaintiff's claim was held on May 19, 1966. At the start of that proceeding and before any evidence had been heard, counsel for the executor moved for a denial of the claim and for an order striking it from the file on the grounds that such claim was barred by either the State of Frauds, C.R.S. 1963, 59-1-6, or the Statute of Limitations, C.R.S. 1963, 118-7-1. The court questioned the counsel for the plaintiff on the nature of plaintiff's case and concluded that the claim was one within the purview of C.R.S. 1963, 118-7-1 and was barred by the running of that statute. We find that the conclusion of the trial judge, made before the plaintiff had the opportunity to put on any evidence, was premature and constituted error, and we reverse and remand this action to the trial court.
[2,3] In response to questions by the trial judge, counsel for the plaintiff attempted to express the theory upon which the claim was based. A fair interpretation of the record is that counsel was unsure on what grounds he would proceed. In an action under C.R.S. 1963, 153-12-5, which provides for hearings on claims filed in estates, there are no formal pleadings and the issues are formed at the hearing. As a general rule the plaintiff is permitted to produce his evidence, and if it develops that he has established one ground for his claim rather than another, he can amend his theory of the case to conform with the issues raised by the testimony.
But, in the present case, the trial judge concluded that the action was barred by the Statute of Limitations without the benefit of any testimony. In order to do so, he had to make certain conclusions concerning the nature of the claim. All he had to guide him were the general allegations in the claim that the plaintiff was contending that her interest in the real property was conveyed to her mother for the purpose of being held in trust by the mother for the plaintiff.
It was the plaintiff's theory that her mother was to hold the plaintiff's one-half interest in the property in trust and that a deed in blank to her mother for her one-half interest was made for the convenience of the parties in disposing of the property while the plaintiff was away. The mother used the deed to convey the property to herself. Thereafter, it is contended, the mother, upon sale of portions of the property, made payment to the plaintiff for her one-half. Under such circumstances, if proved, the mere recording of the deed by the mother did not necessarily begin the running of the Statute of Limitations for the recording was an act not in repudiation of the agreement but in furtherance of it. It was therefore necessary for the trial judge to determine from facts not before him as part of the record when the trust was repudiated and the running of the statute commenced. Apposite to the case at bar is Bushner v. Bushner, 134 Colo. 509, 307 P.2d 204. If there was a trust here — and that is a matter which must be determined by the facts — then the plaintiff was entitled to present evidence to the court to determine when the trust was repudiated and the Statute of Limitations began to run.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.
MR. JUSTICE DAY, MR. JUSTICE HODGES and MR. JUSTICE GROVES concur.