Opinion
April 20, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 122
Cross & Christensen, John A. Cross, Loveland, for defendant.
Alden T. Hill, Alden v. Hill, Fort Collins, for plaintiffs in error, Alma Bagby and Leon Bagby, individually.
John A. Price, Walden, for plaintiff as Executor.
D. Chet Mast, Fort Collins, for defendant in error, Sonja E. Warberg.
ENOCH, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This appeal concerns the construction of the Last Will and Testament of Mary E. Hill and the allowance of attorneys' fees as ordered by the trial court. Plaintiffs in error, Leon Bagby and Alma Bagby, are the residuary beneficiaries under the will and Leon Bagby is the Executor. The defendants in error are Sonja E. Warberg, who is the assignee of the testamentary interest of Hazel McGowan, a named beneficiary in the will, and Maurita Stewart, a named beneficiary. The parties appear here in the reverse order of their trial court appearance and will be referred to by their trial court designation or by name.
The plaintiffs filed separate, but similar, petitions in the trial court for a construction of certain language appearing in the will.
The sections of the will in question read as follows:
II
'I give, devise and bequeath to MAURITA STEWART of Loveland, Colorado one-fourth of the principal amount of the investment that I own, at the time of my death, in the United Income Fund, and the car that I own at the time of my death, said bequest to be free of any and all expense of administration and taxes and any other expense connected with my death.'
III
'I give, devise and bequeath to HAZEL McGOWAN of Fort Collins, Colorado one-fourth of the principal amount of the investment that I own, at the time of my death, in the United Income Fund, said bequest to be free of any and all expense of administration and taxes and any other expense connected with my death.'
At the time of the testatrix' death, her investment or shares in United Income Fund was represented by an account with United Funds, Inc. She had no stock certificates. Prior to her death, dividends and capital gains were credited to her account and fixed monthly payments were made to her. The Executor took the position that the gifts to the plaintiffs were general bequests and that each plaintiff was entitled only to a sum of money equivalent to the market value (as determined at the time of testatrix' death) of one-fourth of the testatrix' investment in United Funds, Inc. The plaintiffs took exceptions to this interpretation and filed the petitions initiating this court action.
I
The issue in the construction of this will is whether the sections quoted above created specific bequests of an undivided interest in the United Funds, Inc. account, as alleged by the plaintiffs, or whether they are general or demonstrative bequests of a computable sum of money. This question is material to the parties because after the death of the testatrix, the market value of the stock increased and dividends and capital gains were received increasing the value.
The parties agree with the basic legal principles that if these are specific bequests of interests in stock shares or certificates or of the account, the plaintiffs are entitled to their share of the income, capital gains and the benefit of the market value increase after the date of death. Conversely, it is agreed that if the gifts are construed to be general or demonstrative bequests of a computable sum of money, the plaintiffs are entitled to receive only the computed value at the time of death without the benefit of any increases. The trial court determined that the will was clear and unambiguous and the wording used by the testatrix created specific bequests to the plaintiffs of interests in the fund shares. We agree with this construction of the will.
The three types of legacies in question were defined by our Supreme Court in Nusly v. Curtis, 36 Colo. 464, 85 P. 846, as follows:
'* * * a general legacy is one which is payable out of the general assets of a testator's estate, such as a gift of money or other thing in quantity, and not in any way separated or distinguished from other things of like kind. A specific legacy is a gift by will or a specific article, or a particular part of the testator's estate, which is identified and distinguished from all others of the same nature, and which is to be satisfied only by the delivery and receipt of the particular thing given. A demonstrative legacy partakes of the nature both of a general and specific legacy. It is a gift of money or other property charged on a particular fund in such a way as not to amount to a gift of the Corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fails. A specific bequest is subject to ademption, but such is not true of a general, or a demonstrative, legacy.'
These deinitions have been cited with approval in Breymaier v. Davidson, 149 Colo. 218, 368 P.2d 965, and in Bond v. Evans, 92 Colo. 1, 17 P.2d 311.
The gifts to the plaintiffs fit squarely within the definition of a specific legacy. They are gifts of a specific or particular part of the estate, I.e., 'one-fourth of the principal amount of the investment that I own, at the time of my death, in the United Income Fund.' This gift is clearly identified and distinguished from any other part of the estate and can be satisfied only by delivery of one-fourth of the United Income Fund account. If the testatrix had owned nothing in the United Fund, Inc. at the time of her death, the defendants would, no doubt, be quick to agree that the gifts were specific in nature and the plaintiffs would take nothing.
It is correct that where there is an ambiguity, 'courts are disposed to interpret gifts as general or demonstrative, but if the language is clear and unequivocal and plainly evidences an intent of the testator to create a specific legacy, such effect must be given to that language.' Nusly v. Curtis, Supra.
Defendants cite Bond v. Evans, Supra, in support of their position. Actually, that case supports the conclusion of the trial court. In the Bond case, the gift was, 'Fifteen (15) shares New York Central Railroad Stock to Mrs. Annie Bond, 3955 Falcon St., San Diego, Calif.' The court held this to be a general bequest and the beneficiary was not entitled to the dividends received after the death of the testator. In so holding, the court there said:
'If a specific bequest was intended, one means of identification would be to give the serial number of the stock certificate. Other tests that have been applied are words such as 'in my possession,' 'stock owned by me,' 'in my name,' or words of similar import.' (citation omitted)
We find similar words of intent clearly set forth in the bequests to the plaintiffs, I.e., 'that I own, at the time of my death.'
Defendants further contend that the words 'principal amount of the investment' make the gift general or demonstrative in nature and that if it were intended to be specific, the testatrix would have used the following words: 'I bequeath one-fourth of all of the shares of stock that I own at the time of my death in United Fund, Inc. to * * *' We do not agree. To say 'all of the shares of stock' is nothing more nor less than to say the 'principal amount of the investment,' particularly where, as here, her share in the account was not evidenced by certificates of stock. A similar argument was made in Nusly v. Curtis, Supra. There, the will read in part:
'Second. Any and all sums of money which may at any time hereafter become due and payable to me or my estate, by or under any insurance policy upon the life of my husband * * * which may heretofore have been insured, payable to me or in my favor, I will and bequeath to * * *'
The Supreme Court, in holding that this was a specific legacy, said, 'It is just the same as if the policy itself had been bequeathed.'
II
The trial court determined that the services of the two attorneys for the respective plaintiffs were helpful to the court and were necessary in arriving at a correct interpretation of the will. Following a hearing on the issue of attorneys' fees, the court ordered the estate to pay $450 as reasonable fees to each of the attorneys and $35 to each of the two expert witnesses who testified as to the reasonableness of the attorneys' fees and the value of their services. Defendants seek a reversal of this order.
We agree with the general rule cited by defendants that no allowance may be made out of the estate for services of an attorney not employed by the personal representative of the estate where the services were rendered for the sole benefit of an individual or group of individuals interested in the estate. In re Coors' Estate, 140 Colo. 343, 344 P.2d 184. However, attorneys' fees of a beneficiary have been allowed where the proceedings to construe the will were initiated by the executor who caused the beneficiary to be cited for the hearing. Tarr v. Newby, 146 Colo. 296, 361 P.2d 622; Bennett v. Poudre Valley National Bank, 129 Colo. 107, 267 P.2d 647; First National Bank v. Strickler, 103 Colo. 361, 86 P.2d 260.
The procedure here was a bit different in that the beneficiaries initiated the court proceedings for a construction of the will. However, the facts clearly justify the action of the beneficiaries and the court's award of attorneys' fees. The executor, without the aid of an interpretation of the will by the court, was attempting to distribute the assets of the estate according to his own interpretation in a manner which would have resulted in a personal gain to him as one of the residuary beneficiaries. The action of the plaintiffs prevented this wrongful distribution. In Bennett v. Poudre Valley National Bank, Supra, the court allowed attorney fees to the beneficiary's attorney, stating that:
'* * * (T)he attorneys * * * successfully prosecuted a caveat which inured not only to the minor, but to all persons interested in the estate, And prevented a wrongful distribution of the estate which would have occurred under the interpretation insisted upon by the proponent of the will. * * *' (Emphasis added)
The record supports the finding of fact that the services of the attorneys were helpful to the court. The fees awarded are reasonable and are less than the amount testified to by the experts.
The only objection raised by defendants as to the allowances for the expert witness fees is that the witnesses did not have sufficient evidence before them on which to form a proper opinion of the value of the services involved. The qualification of the witnesses; their credibility; the sufficiency, probative effect and weight of the evidence; and the inferences and conclusions to be drawn therefrom are all within the province of the trial court, whose determination will not be disturbed on review unless manifestly erroneous. Broncucia v. McGee, Colo., 475 P.2d 336; Rubens v. Pember, Colo., 460 P.2d 803.
Judgment affirmed.
SILVERSTEIN, C.J., and DUFFORD, J., concur.