National Trust Co. v. Duys

269 P.2d 1049, 2 Utah 2d 112, 1954 Utah LEXIS 161
CourtUtah Supreme Court
DecidedApril 29, 1954
DocketNo. 7970
StatusPublished
Cited by3 cases

This text of 269 P.2d 1049 (National Trust Co. v. Duys) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Trust Co. v. Duys, 269 P.2d 1049, 2 Utah 2d 112, 1954 Utah LEXIS 161 (Utah 1954).

Opinions

WADE, Justice.

This is an intermediate appeal from an order denying the appellants National Trust Company, Ltd., as administrator with the Will Annexed of the Estate of Robert Bown Ferrie, deceased, and Colina Ferrie, the right to intervene in a will contest in the estate of Florence P. Howard, deceased.

Florence P. Howard, a resident of Salt Lake City, Utah, died in Montreal, Canada, on January 28, 1952. On May 14, 1952, four holographic instruments were admitted to probate as her last will and testament and the Walker Bank and Trust Co. was appointed executor of her estate. On November 12, 1952, and within six months after admission of the instruments to probate as the last will of decedent, Helen Duys, Ernest F. Howard and Ethel Forrest, who were legatees, filed a contest of 'the admission to probate of the 1939 and 1940 instruments as being part of the last will and testament of decedent on the ground that they were revoked by the later instruments. Thereafter in December other legatees filed answers to the contest, each contending for a construction which would admit to probate only those instruments as decedent’s will which would be most favorable to such answering beneficiary. Among such answers was one filed by Hilda, Mildred and Roger Black and Rachel Heaps on December 6, 1952, wherein it was alleged that the holographic instrument dated January 14, 1952, and which was the last instrument made by decedent, alone represented the last will and testament of decedent.

Robert Bown Ferrie who survived decedent and of whose estate the National Trust Company, Ltd., is administrator with the will annexed and Colina Ferrie, appellants herein, were not named by decedent as beneficiaries in any of her holographic instruments, but are heirs at law of decedent and would have an interest in her estate if she died intestate as to all or part of her estate. The appellants received no actual notice of the probate proceedings before the instruments were admitted to probate as the last will of decedent but Colina Ferrie was given notice of the admission to probate of these documents on September 3, 1952, more than two months prior to the expiration of the six months period after the will was admitted to probate, upon the petition of the Walker Bank and Trust Co. for an order, which was granted, that such notice be given to additionally discovered heirs. No such notice was given to the National Trust Company, Ltd., as administrator of Robert Bown Ferrie’s estate. On January 14, 1953, more than six months after the will was admitted to probate appellants filed a motion asking leave of the court to intervene in the Will contest and to file an [115]*115answer and cross-complaint. On January 16, 1953, they filed an answer to the petition of the Walker Bank and Trust Co. filed November 20, 1952, to construe the will. In this answer the appellants attacked the jurisdiction of the court to probate the instruments on the ground that proper notice had not been given to them and also alleging that the instruments were not the will of decedent and that she died intestate, and further pleaded that if the court should find that she did not die intestate, then it should determine that the instrument dated January 14, 1952, was her last will and testament and that it did not dispose of her entire property. The court denied their petition to intervene as parties to the Will contest. The Will contest and the petition to construe the will were heard on January 19 and 20, 1953, at one proceeding. The court found that all of the four instruments were valid and constituted the last will and testament of decedent and should be administered as such except where they were irreconcilable as to particular bequests, then each were to be given effect insofar as possible.

Appellants contend that the court failed to obtain jurisdiction to probate the estate because the posting of notices of the petition for probate of the wills did not comply with statutory or constitutional requirements.

Notice of the Walker Bank and Trust Company’s petition and supplemental petition for probate of the wills were given upon proper orders by posting in three public places in Salt Lake County and by mailing to the heirs, devisees and legatees listed by it in its petitions. At those times the Walker Bank and Trust Co. was not aware of any heirs not listed in its petitions, although it had made inquiry of the only living relative of decedent known to it, in an effort to ascertain information as to the existence of any such heirs.

Sec. 75-3-3, U.C.A.1953, Subsec. (3) provides that the petition for the probate of a will should show “The names, ages and residences of the heirs, legatees and devisees of the decedent, so far as known to the petitioner.” Sec. 75-3-5 provides that the notice of the hearing of sueh petition “shall be given by publication or by posting as the court or clerk may direct and by the mailing of notices to the heirs, * * Sec. 75-14-1 provides for the time and manner of giving notices when required by the probate code and states that it shall be the duty of the clerk “to mail copies of all notices in probate proceedings to the known heirs, devisees and legatees.” Obviously the only heirs which the clerk could be expected to know in a petition to probate a will would be those named by the petitioner in such petition in conformance with the requirements of Sec. 75-3-3, Subsec. (3). As we have shown above the notices were mailed by the clerk to all the heirs, devisees and legatees known to [116]*116petitioner at the times of filing' its petitions. There remains the question of whether there was a compliance with that portion of Sec. 75-3-5 which requires that the notices of the hearing must be given by either publication or by posting. In the instant case the method directed by the court was by posting. Sec. 75-14-9, provides that where “the court, judge or clerk may direct, that notice be given by posting, it shall be sufficient if the notice or order is posted in at least three public places in the county, one of which must be at the courthouse of the county, for the time required by law, or prescribed by the court, judge or clerk.” The clerk posted one of the notices at the west entrance of the City and County Building in Salt Lake City, Utah, another on a public bulletin board located at the northeast corner of the intersection of 33rd South and State Streets and on the same corner of the intersection on which a church is located, in Salt Lake County, Utah, and the third notice in the Post Office in Murray, Salt Lake County, Utah. The clerk testified that for a period of at least 7 years it had been customary to post such notices at these places. As pointed out in In re Phillips’ Estate, 86 Utah 358, on page 368, 44 P.2d 699, on page 703:

“ * * * Tile paramount controlling principle which should guide the poster of the notices is that the two notices which are to be posted other than at the courthouse should be placed in the county at places most likely to reach parties interested. * * * There should be customary places at which all such notices should be posted, which places should be at conspicuously public points and not on the byways. * * * ”

Thus the posting done by the clerk in this case was sufficient to comply with the statute and give the court jurisdiction.

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Related

Estate of Powell v. West
626 P.2d 430 (Utah Supreme Court, 1981)
Duys v. National Trust Co.
278 P.2d 622 (Utah Supreme Court, 1955)
In Re Howard's Estate
278 P.2d 622 (Utah Supreme Court, 1955)

Cite This Page — Counsel Stack

Bluebook (online)
269 P.2d 1049, 2 Utah 2d 112, 1954 Utah LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-trust-co-v-duys-utah-1954.