In Re Mayne's Estate

345 P.2d 790
CourtWyoming Supreme Court
DecidedNovember 3, 1959
Docket2891
StatusPublished

This text of 345 P.2d 790 (In Re Mayne's Estate) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Mayne's Estate, 345 P.2d 790 (Wyo. 1959).

Opinion

345 P.2d 790 (1959)

In the Matter of the ESTATE of Frank Finley MAYNE, Deceased.
Clair Murray MAYNE, Appellant,
v.
Willis J. BRUCE, Special Executor, Appellee.

No. 2891

Supreme Court of Wyoming.

November 3, 1959.

*791 Whitley & Liamos, Newcastle, and Ralph R. Bremers, Omaha, Neb., for appellant.

Jones & Dumbrill, Richard S. Dumbrill, Newcastle, for appellee.

Before BLUME, C.J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

This is an appeal from (1) an order removing an executor because he had failed to comply with the orders of the court without just cause and lawful excuse, and (2) an order adjudging said executor to be in contempt for wilful disobedience of the court's order without just cause and lawful excuse.

Since docketing of the case in this court appellee has filed a motion to dismiss the appeal on the ground that it is now moot *792 because Clair Murray Mayne has purged himself of contempt and further that he is incompetent to be reinstated as executor. As to the contempt, appellee alleges that Mayne has returned all funds belonging to the estate and has been released from custody. As to the competency, appellee asserts that Mayne was adjudged incompetent in the State of Nebraska, committed to a Douglas County Hospital in Omaha and later removed to a Veterans Administration hospital there. Appellant's counsel has filed a counter-affidavit alleging that although the said Clair Murray Mayne was found by the Douglas County Board of Mental Health to be mentally ill said Mayne has in the opinion of his attorney made a full and complete recovery of his mental health. After study we have determined that the motion should be denied, and the appeal decided upon the merits.

The records show that Clair Murray Mayne, a nonresident of the State of Wyoming, was appointed as executor of the Estate of Frank Finley Mayne on November 12, 1955, and that the various routine orders concerning the administration were entered thereafter. On September 24, 1957, the presiding judge, the Honorable Preston T. McAvoy, entered an order reciting that upon a reading of the probate docket he had learned that the estate was delayed in settlement, and he therefore ordered Mayne and his resident attorney to prepare and publish a notice of final settlement and in due course file petition for final settlement and distribution or failing in same show cause on October 7, 1957, why an order of contempt should not issue. On October 7 a hearing was held, the attorney made a statement, Mayne testified evasively and ambiguously, merely saying in response to the court's inquiry as to reasons for failure to close the estate, "I cannot comply with the Order of the Court because to do so, I feel I would commit perjury." He made some explanation about the uncertainty of Government and production taxes, but from our reading they constitute neither excuse nor justification for noncompliance with the court's request. He also said that he had taken some $30,000 of estate money and placed it in a bank in Omaha, Nebraska. The court then made an order finding that the notice of final settlement was being published, that there was no cause sufficient to avoid the closing of the estate, that there was only a nominal indebtedness, and it was ordered that the executor forthwith furnish his attorney with needed information for the final account and petition for distribution, so that the attorney could proceed with the closing on or before the 28th of October 1957, or failing therein that he be relieved of his duties as executor. On November 6 his attorney asked and was granted an extension of time of thirty days to file the final account and petition for distribution. On November 9 the court entered an order reciting that the cash coming into the hands of the executor had materially exceeded the amount of his bond and ordered that an additional bond of $10,000 be provided. On the same day a further order was entered reciting the removal of the funds by Mayne and requiring him to deposit estate moneys in a Newcastle, Wyoming, bank. On November 27 Mayne wired the clerk of court, saying that he was "unable to file final estate report due to lack of information regarding U.S. Internal Revenue Service appraisal of estate mineral rights and other irregularities." On December 11 his attorney requested, and the court granted, an extension of sixty days. On March 7, 1958, the attorney again requested, and the court granted, an extension of ninety days. On April 24, 1958, Mayne requested authorization to transfer $15,000 out of the jurisdiction of the court into the jurisdiction of a Nebraska court. The matter was set for hearing on May 19. On May 5 at the request of the attorney the court again extended the time for filing the final account and petition for distribution for sixty days. On May 19 the attorney moved that the court vacate the order setting the hearing regarding the transfer of the $15,000 and requested that the matter be continued to a future date; an order was *793 entered accordingly continuing the hearing until further order of the court. On June 26, 1958, the Honorable G.A. Layman, Judge of the Fourth Judicial District, acting for Judge McAvoy, assigned the Mayne estate matter to the Honorable Franklin B. Sheldon of the Seventh Judicial District.[1] On July 14 Judge Sheldon entered an order reciting that from an examination of the file it appeared that Mayne had been ordered to provide additional bond and to deposit all moneys in the estate in the Newcastle bank, had failed to comply with the orders, suspended the power of Mayne as executor until the matter was investigated, cited him to appear and show cause on August 14 why his letters should not be revoked. Simultaneously, Judge Sheldon entered a similar order of suspension of the executor based upon the verified petitions of Maybelle Lyons and Mary Adele Gillaspie, sisters of the deceased and beneficiaries under the will. At a reported hearing on August 14 Mayne testified both in response to the questions of his attorney and those of the court. He insisted that the estate matters were not in order so that he could bring the estate to a close and that he therefore refrained from attempting to do so. He also insisted that the will provided that he was not to furnish a bond, that he furnished the first one anyhow but could not furnish the additional bond. He insisted also that he could not comply with the order to send funds back to Wyoming but had left them in the bank in Omaha because to do otherwise would be to violate his obligation. The court questioned him at length and explained with some pains the necessity of his proceeding to close the estate and to comply with the order which Judge McAvoy had issued but with no apparent cooperation from Mayne. After indicating that the letters testamentary to Mayne must be revoked, the court requested of one of the sisters to know whom she wished to act as administrator with the will annexed. She suggested Willis J. Bruce who owned land on which the deceased had had mineral rights and whom Clair Murray Mayne as nonresident executor had appointed to be his resident agent. Thereupon the court entered an order permanently revoking the letters testamentary to Clair Murray Mayne and appointing Willis J. Bruce as administrator with the will annexed. The court simultaneously issued an order adjudging Mayne to be in contempt until he complied with the order of court of November 9, 1957, and returned to the estate in the State of Wyoming the $34,000.

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345 P.2d 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-maynes-estate-wyo-1959.