Opinion
Dec. 17, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 663
Hellerstein, Hellerstein & Shore, P.C., L. A. Hellerstein, William M. Banta, Denver, for respondent-appellee, William G. Griffith, Executor.
James H. Rogers, Denver, for petitioners-appellants.
John P. Moore, Atty. Gen., Dante L. Zarlengo, James R. Riley, Jr., Asst. Attys. Gen., Denver, for respondent-appellee, Palmer L. Burch, the Treasurer of the State of Colorado.
Van CISE, Judge.
Vera Marie Gregory (Gregory) died January 18, 1968, leaving a will which left all her property to her sister and mother, both of whom had predeceased her. The will was admitted to probate and the executor named in the will was duly appointed and qualified. On July 3, 1972, the executor, having found no heirs, petitioned for and the court entered an order approving the final report and directing the funds in the estate to be paid to the State of Colorado. On July 17, 1972, and prior to delivery of the funds, a petition for determination of heirship was filed on behalf of certain named individuals claiming to be heirs. The court thereupon stayed its order of July 3, pending determination of this petition. Notice was duly published. The petition was later amended, and the present appellants (petitioners) became the parties claiming to be the heirs. The guardian ad litem appointed to represent the unknown minor heirs, and, through their attorneys, the petitioners and the State Treasurer (as custodian of the State Escheat Fund) appeared at the September 18, 1973, hearing on the amended petition. Petitioners offered in evidence four birth, five death and five marriage certificates, three uncertified U.S. census reports, and one uncertified military record. In addition, they presented the verified answers from five of the petitioners to interrogatories of the executor pertaining to their relationship to decedent, the basis therefor, and to any knowledge each might have concerning any claim of relationship by any other person. Finally, they offered a genealogical chart, prepared by the attorney for the executor, summarizing the contents of the answers to the interrogatories. There was no oral testimony. Objections were entered to the admission of much of this evidence, and the state and guardian moved to dismiss the petition for failure to prove heirship. All matters were taken under advisement and subsequently the court issued its 'judgment,' overruling the objections and admitting into evidence all documents offered by petitioners. It found:
'The Court has carefully examined the evidence in this case several times and is unable to find anything, independently of the statements of the interested parties, that even purports to connect the claimants to the decedent.
'The burden of proof which counsel have agreed was upon the claimants has not been satisfied.
'It is the opinion of the Court that the evidence is not satisfactory in this case. It is impossible to suggest the type of evidence that might have satisfied the burden. There are no pictures, no family records, no neighbors, no friends, no letters, no school records. Even the will itself mentions only one sister. The interrogatories and answers submitted by petitioners do not tie well together.'
It then denied the petition for determination of heirship and ordered the funds of the estate to be paid over to the State Treasurer.
Petitioners appeal, asserting that the evidence admitted by the court clearly and convincingly established that they were entitled to a decree of heirship in their favor. They claim heirship under C.R.S.1963, 153--2--1(3)(d), as descendants of Gregory's maternal grandparents through brothers and sisters of Gregory's mother and allege that some of them are first cousins and others are descendants of deceased first cousins of Gregory. We do not agree, and therefore affirm the judgment.
Heirship is determined as of date of death of the decedent. State v. Rogers, 140 Colo. 205, 344 P.2d 1073. As of the time of Gregory's death, 'To prove heirship, the evidence must have been clear and convincing and must have consisted of more than mere conjecture.' Estate of Etchart (Cable v. Nelson), Colo., 500 P.2d 363; Seddon v. State, 110 Colo. 528, 136 P.2d 285. '(P)roof by 'clear and convincing evidence' means that the truth of the facts asserted is highly probable.' Sheets v. B & B Personnel Systems of Oregon, Inc., 257 Or. 135, 475 P.2d 968. The evidence must have established '(1) that intestate is dead, (2) that claimants are his heirs or next of kin, and (3) that there are no other persons entitled before them.' State v. Grooms, 110 Colo. 264, 133 P.2d 379.
Gregory died on January 18, 1968, prior to the effective date of 1971 Perm.Supp., C.R.S.1963, 52--1--28.
At the hearing no evidence was offered as to whether Gregory was survived by (1) a husband, (2) any descendants, (3) her father, (4) any other sister or brother or a descendant of any deceased brother or sister (including any descendant of the sister named in the will). If any one of these people was living, such person would be entitled to inherit before petitioners. C.R.S.1963, 153--2--1(1) and (3)(a) through (c). Also, nothing was presented as to whether any of Gregory's grandparents (maternal or paternal) or any uncles or aunts or descendants thereof on her father's side were living at her death or whether the maternal grandparents had other children living or deceased with living descendants. If any of these were alive, the claimed proportionate shares of all petitioners would be reduced or eliminated. C.R.S.1963, 153--2--1(3)(d). Instead, petitioners relied on the assertions as to heirship contained in the amended petition sworn to by one of them and on the various documents referred to above.
Even where there is no adverse party to the proceeding, the court is not obligated to accept a mere verified petition as establishing heirship. 'The court may in all cases require further evidence when it deems it necessary to fully determine the heirship of the decedent therein,' C.R.S.1963, 153--3--5, especially where, as here, two other groups of alleged relatives had filed petitions and had later withdrawn them, and where the original group in this petition had been replaced by the present petitioners in the amended petition. With the exception of the answers to the interrogatories and the chart compiling those answers, none of the documents presented established any connection between Gregory, or either of her parents, and any of the petitioners.
The interrogatories were answered by five of the petitioners, one of whom also verified the amended petition. Each set of answers bore a very marked resemblance to every other set, as to typing, format, text, and acknowledgment language. Each contained a recital tracing his or her relationship to Gregory and then a listing of each of the other petitioners as first cousins or as first cousins once removed. None referred to any personal contact with and none recited any statement made by anyone confirming any connection with Gregory or with either of her parents.
Over objections, the court admitted these answers to interrogatories into evidence. It is not clear whether the court based its ruling on lack of standing in either the State or the guardian to object or on a determination that the 'dead man's statute,' C.R.S.1963, 154--1--2, did not prohibit one claiming to be an heir from asserting his relationship and right to inherit and from testifying in support of such right. In any event, these answers are self-serving hearsay declarations. See Stone v. Union Fire Insurance Co., 106 Colo. 522, 107 P.2d 241. They are not within the pedigree exception to the hearsay rule because they were made by persons (1) not shown to be unavailable to testify, (2) in support of litigation in process when they were made, and (3) which involved each declarant's own claim to family relationship. See In Re Estate of Cunha, 49 Haw. 273, 414 P.2d 925; Peterson v. Peterson, 121 Cal.App.2d 1, 262 P.2d 613; Carfa v. Albright, 39 Wash.2d 697, 237 P.2d 795; 2 C. McCormick Evidence s 322 (2d ed.); 5 J. Wigmore Evidence s 1483 (3rd ed.); 29 Am.Jur.2d Evidence s 508; 31A C.J.S. Evidence s 228. The declarations in the answers, being hearsay, are to be received with caution, and the weight, if any, to be given to them is within the discretion of the court as the trier of the facts. See In Re Kasendorf's Estate, 222 Or. 463, 353 P.2d 531. There was no abuse of discretion here.
There was no evidence that there were no other persons entitled before petitioners, and the evidence offered that claimants are Gregory's heirs was not clear and convincing. The court properly denied the petition.
Judgment affirmed.
SMITH and RULAND, JJ., concur.