Opinion
Rehearing Denied Oct. 2, 1973.
Page 1148
Orville A. Kenelly, Wesley G. Davis, Colorado Springs, for petitioner-appellant.
Donald E. LaMora, Colorado Springs, for respondent-appellee.
PIERCE, Judge.
This is an appeal from a judgment resulting from the approval by the trial court of a Master's final report determining claims filed by a daughter of the deceased against the estate of Isabelle Moore. We affirm.
The district court admitted to probate the last will and testament of Isabelle Moore. The first aricle of the will provided for the payment of debts and expenses, including repayment to three other of the deceased's children for funds advanced to the deceased, and provided that a fourth child, 'Beulah Moore he compensated for the care and maintenance which she has supplied me during the latter years of my life.' Beulah Moore filed two claims: One for $126,298.60 ($93,135 'wages due' and $34,088.60, advancements) and a claim for $3,150 for the use of a Jeep automobile for 'care of Isabelle Moore and supervision and sale of property of Isabelle Moore.' The court thereafter appointed a Master to determine these and other claims against the estate. The Master filed an initial report and held hearings on objections thereto. He then filed his final report and a hearing was held in the trial court on the objections to the final report. The court then adopted the final report which denied Beulah's claims for advancements and awarded her $26,000 for the care and maintenance of the deceased prior to her death.
Beulah appeals on numerous grounds pertaining to he conduct of the investigation by the Master and his conclusions, the adequacy of her counsel, and rulings as to the applicability of the deadman's statute before the Master and in the trial court.
I
We find nothing in the record which would indicate that the Master failed in any way to perform his duties thoroughly under C.R.C.P. 53. He conducted a thorough investigation and interviewed witnesses for both parties before submitting his report.
Beulah argues that he erred in refusing to consider certain receipts which she offered to prove advancements made to her mother. The Master properly refused these items on the ground that there was no evidence to show that these expenditures were from Beulah's personal funds and not from the funds of the mother. He specifically requested documentation of the source of these funds and when such evidence was not produced, it was proper for him to refuse to consider the proffered receipts. The record also shows that he requested specific documentation of the various assertions relating to Beulah's claims, and that when she did not produce this evidence, he proceeded to make an independent inquiry to gather relevant evidence pertaining to the determination of these claims.
II
Beulah also asserts that the Master erred in treating her claims for compensation as a claim against the estate instead of a legacy. The difference, it is argued, is that the burden of proof of a legacy is on the administrator and not the claimant, and that the administrator has a duty to protect and establish the legacy. This argument was first asserted by counsel for Beulah Moore in her objection to the final report of the Master. The issue was also argued before the trial court in a hearing on the Master's final report; and the court also found the proceedings to be in the nature of a claim and not a legacy. We agree with this interpretation of the will as the clause in question appears in an article of the will providing for the payment of debts, and not in a later article which specifically sets out the legacies bequeathed.
III
Beulah next asserts that the Master improperly, and on his own motion, applied the deadman's statute, C.R.S.1963, 154--1--2. The record does not indicate whether or not the deadman's statute was actually applied to exclude any evidence submitted during the Master's inquiry. Beulah was not present at the hearing before the Master, and the statute was not invoked by or against her at that point. However, she did testify at the hearing before the court on the Master's final report as to matters subsequent to her mother's death. At the time that testimony was taken, her then attorney expressly reminded her that she could not testify to matters which occurred prior to her mother's death. While the court stated in its order approving the final report of the Master, that the statute did apply to all proceedings before the Master and the court, at no time was an attempt made to have Beulah testify to matters which might be under the purview of the statute. Thus, we need not consider whether or not the statute would have been applicable had a timely offer of proof been made. As held in Parker v. Hilliard, 106 Colo. 187, 102 P.2d 734, an objection on these grounds is not proper until the witness is asked to testify as to those matters covered by the statute. This issue was never properly placed before the Master or the trial court.
IV
Beulah further argues that the Master erred in allowing her claim for compensation for only the period of 1960 to 1970 and also, in diminishing the value of the compensation by the value of real property transferred to her by decedent in 1964. With respect to these claims, the trial court found that the report of the Master was supported by substantial evidence. Such determinations by a Master are binding on the trial court unless clearly erroneous. Hutchinson v. Elder, 140 Colo. 379, 344 P.2d 1090; Sunshine v. Sunshine, 30 Colo.App. 67, 488 P.2d 1131. We agree with the trial court that these findings were proper under the law.
V
We have examined the other allegations of error alleged by the appellant and find them either to be covered by our previous discussion or otherwise without merit.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.