of Colby

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 11, 2021
2021COA31
No. 19CA1132, Estate of Colby — Probate — Creditors’ Claims
— Manner of Presentation of Claims
In this probate proceeding, the decedent’s will provides that
her primary residence, if not “claimed” by a family member, is to be
sold and the proceeds evenly distributed to her two daughters. The
appellant, one of the decedent’s daughters, contended that she
made a valid claim for the residence under the terms of the will.
The district court disagreed because the appellant’s demand did not
comply with section 15-12-804, C.R.S. 2020.
A division of the court of appeals concludes that the district
court erred because section 15-12-804 applies only to a creditor’s
claim against an estate and does not apply to a devisee’s demand
for a devise under a will. Accordingly, the division reverses the
district court’s order approving the final settlement of the
decedent’s estate and remands for further proceedings.
COLORADO COURT OF APPEALS 2021COA31
Court of Appeals No. 19CA1132
Teller County District Court No. 18PR5
Honorable Scott Sells, Judge
In re the Estate of Carol Ann Colby, deceased.
Kathryn Gail Town-Statham,
Appellant,
v.
Kellie Marie Johnson, in her fiduciary capacity as Personal Representative,
Appellee.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE NAVARRO
J. Jones and Yun, JJ., concur
Announced March 11, 2021
The Law Office of Loren Randall & Associates LLC, Loren Randall, Denver,
Colorado, for Appellant
The Blattner Law Firm LLC, Lisa T. C. Blattner, Colorado Springs, Colorado, for
Appellee
¶1 Appellant, Kathryn Gail Town-Statham, challenges the district
court’s order approving the final settlement of decedent Carol Ann
Colby’s estate. Town1 is Colby’s daughter. Colby’s will provides
that her primary residence, if not “claimed” by a family member, is
to be sold and the proceeds evenly distributed to her two daughters.
The district court decided that Town did not make a valid claim for
the residence because her demand did not comply with section 15-
12-804, C.R.S. 2020. We conclude that the court erred. As a
matter of first impression, we hold that section 15-12-804 applies
only to a creditor’s claim against an estate and does not apply to a
devisee’s demand for a devise under a will. Accordingly, we reverse
and remand for further proceedings.
I. Facts and Procedural History
¶2 The following evidence was presented to the district court.
¶3 Colby died on January 18, 2018, and was survived by her two
daughters (Town and Lisa Smith) and several grandchildren. Colby
left a valid will naming her granddaughter, Kellie Marie Johnson, as
“executor.” Colby’s will (the Will) devises specific personal property
1With one exception, appellant uses only “Town” as her surname in
her opening brief. So we will do the same.
1
to her children and grandchildren. The Will devises her primary
residence somewhat differently. With respect to the residence, the
Will provides as follows:
VI. ADDITIONAL POWERS OF THE
EXECUTOR . . . .
My executor will have the power and authority
to pay all debts in my name and pertaining to
my home . . . , to pay all medical bills, to sell
my home . . . (if not claimed by family).
My home . . . , remaining assets, personal
items and any property that are not claimed by
children and grandchildren are to be sold by
the Executor Kellie Johnson[;] she is to evenly
distribute the remaining monies after financial
obligations have been met with debts, funeral
costs, selling fees and other financial
obligations in my name to my daughters
Kathryn Town-Statham and Lisa Smith if they
survive me out right and free of trust.
(Emphasis added.)
¶4 On February 12, 2018, Johnson applied for informal probate
of the Will and informal appointment as personal representative.
She also distributed copies of the Will to Town, Smith, and others.
¶5 Town later testified that, on February 27, 2018, she sent
Johnson an email saying that she “wanted a fair share of the
home.” But Johnson testified that she could not recall Town’s
2
claiming a share of the home’s value in that email. The email itself
was not admitted into evidence, and the district court did not make
a finding as to its contents. Sometime after this email, Johnson
and Town’s attorney had a conversation in which Johnson was
apparently informed that Town would be satisfied with receiving
half of the house’s value plus an additional $10,000. Town also
requested an appraisal of the residence. Johnson, however, did not
consider any of those communications to be a “formal claim” for the
home.
¶6 In March 2018, Johnson petitioned for formal probate of the
Will and formal appointment as personal representative. She
retained counsel. Shortly thereafter, Johnson’s attorney received a
communication from Town claiming “half of what the house is
worth.” Johnson’s attorney passed along this message to Johnson,
but again Johnson did not consider it to be a “formal claim” for half
of the home’s value.
¶7 In July 2018, Johnson was appointed as personal
representative. At some point between August and November 2018,
Smith (Johnson’s mother) delivered a written request for the
3
residence to Johnson’s attorney. No one disputes that Smith’s
request was a claim for the residence.
¶8 On November 27, 2018, Johnson filed a petition for final
settlement of Colby’s estate. According to the petition, Smith would
receive the residence, and Town would receive two items of Colby’s
personal property. In February 2019, Town filed an objection to the
will and inventory. Additionally, Town filed three motions to set
aside the Will and probate the estate under the laws of intestacy.
Town did not make a demand for Colby’s residence in any of those
motions. Those motions were denied for Town’s failure to
prosecute.
¶9 The district court set a hearing on Town’s February 2019
objection. After receiving the evidence discussed above, the court
consulted section 15-12-804, which governs claims by creditors of
an estate. The court concluded that Town had failed to comply with
section 15-12-804 because she presented her “purported claim” for
Colby’s residence (or a share of it) to Johnson in February 2018,
which was before Johnson had been appointed as personal
representative. The court also decided that Town had not complied
with the Will’s terms, but the only reason the court gave for this
4
decision was Town’s failure to make a “valid claim” under the
statute. The court thus concluded that only Smith had validly
claimed Colby’s home.
¶ 10 The court thereafter granted Johnson’s petition for final
settlement of Colby’s estate.
II. The District Court Erred by Applying
the Creditor Claims Provisions
¶ 11 We agree with Town that the district court erred by applying
section 15-12-804 to her alleged claim for Colby’s residence
because that provision does not apply to distributions to
beneficiaries under a will.2
A. Standard of Review and Pertinent Principles
¶ 12 We review de novo the district court’s legal conclusions,
including its interpretation of the probate statutes and the Will.
See Sandstead-Corona v. Sandstead, 2018 CO 26, ¶ 38; Oldham v.
Pedrie, 2015 COA 95, ¶¶ 9-10.
2 We say Town’s “alleged claim” because, as we will explain, we
must remand this case to the district court to determine the precise
contents of the communications between the parties and their
attorneys, as well as whether those communications constituted a
“claim” under the Will.
5
¶ 13 Our task in construing a statute is to ascertain and give effect
to the intent of the General Assembly. People v. Dinkel, 2013 COA
19, ¶ 6. In determining legislative intent, our review begins with the
statute’s plain language. Id. at ¶ 7. We look to the statutory design
as a whole, giving effect to the language of each provision and
harmonizing apparent conflicts where possible. Id. In doing so, we
read statutory words and phrases in context and construe them
according to their common usage. Id. If the statute is clear and
unambiguous, we need not engage in further analysis. Id.
¶ 14 This case requires us to consider sections of the Colorado
Probate Code, §§ 15-10-101 to 15-17-103, C.R.S. 2020, which must
be construed liberally to promote a speedy and efficient system for
settling a decedent’s estate and making distribution to their
successors. § 15-10-102(2)(c), C.R.S. 2020; Oldham, ¶ 10. Because
the Colorado Probate Code is adapted from the Uniform Probate
Code (UPC), we can also consider the decisions of courts from other
jurisdictions that have adopted the UPC. § 15-10-102(1)-(2)(e)
(“This code shall be . . . applied . . . [t]o make uniform the law
among various jurisdictions.”); § 15-16-928, C.R.S. 2020; cf. People
in Interest of G.C.M.M., 2020 COA 152, ¶ 26 (“[W]e look to guidance
6
provided by other states because, if a statute has been adopted
from a uniform law, it should be construed to bring uniformity to
the law in the various states that adopt it.”).
¶ 15 Part 8 of Article 12 of Title 15 is titled “Creditors’ Claims” and
includes section 15-12-803, C.R.S. 2020. That section is a
“nonclaim statute” and sets forth time limits for “creditors” to
present “claims” against a decedent’s estate. § 15-12-803. Claims
that are not timely presented are barred against, among others, the
estate, the personal representative, and “the heirs and devisees of
the decedent.” § 15-12-803(1)(a), (2).
¶ 16 Section 15-12-804 lays out the manner of presentation of
claims. As relevant here, a claim may be presented by delivering a
written statement of the claim to the court-appointed personal
representative. § 15-12-804(1)(b). If this method is selected, a
claim is not validly presented unless delivered after the personal
representative has been appointed. § 15-12-804(2). The personal
representative’s knowledge that a creditor could bring a claim is not
a valid substitute for proper presentment of a written claim.
§ 15-12-804(3). A claim must contain a request or demand for
payment and provide sufficient information to allow the personal
7
representative to investigate and respond to the claim.
§ 15-12-804(4).
¶ 17 With some exceptions not relevant here, “‘[c]laims’” in this
context “includes liabilities of the decedent . . . whether arising in
contract, in tort, or otherwise, and liabilities of the estate which
arise at or after the death of the decedent . . . including funeral
expenses and expenses of administration.” § 15-10-201(8), C.R.S.
2020. “Creditor” is not defined, but it is clear that the “UPC
equates the term ‘creditor’ with one who holds a claim against the
estate.” Martel v. Stafford, 603 A.2d 345, 348 (Vt. 1991).
B. Preservation
¶ 18 To reiterate, Town contends that the district court erred by
applying the statutory provisions related to a creditor’s claim
against an estate because they are inapplicable to her purported
demands for Colby’s residence. Johnson says that Town did not
preserve this claim because Town asked the court to interpret those
statutory provisions broadly and to apply them here.
¶ 19 At the hearing, Town’s counsel explained that the “Probate
Code gives the deadline for creditors to file” but “we’re not talking
about a creditor claim in this case.” He argued that, in the context
8
of the Will, “claims should be interpreted more broadly than just the
Probate Code.” Counsel noted that the Will does not outline a
format or a deadline for a beneficiary to claim property under the
Will, and counsel asked the court to interpret the Will broadly to
effect Colby’s wishes. In particular, counsel asked the court to
interpret the Will to permit a beneficiary’s claim made “even
pre-appointment of the personal representative” because “[i]t
doesn’t say, ‘once someone is appointed that they can make a
claim.’” Town’s counsel argued that Town made a claim for the
house to the person named in the Will as the estate’s executor and
who was later appointed as personal representative (Johnson).
¶ 20 Based on the above, we conclude that Town adequately
preserved her contention that the statutory provisions related to a
creditor’s claim against an estate are inapplicable to her purported
demands for Colby’s residence. Rather than asking the district
court to apply those provisions, Town asked the court to interpret
the Will as permitting the informal procedure by which she allegedly
claimed the house.
9
C. Section 15-12-804 Does Not Apply Here
¶ 21 We conclude that the district court erred by applying section
15-12-804 because Town did not present a claim against the estate.
Instead, in her role as a beneficiary and devisee, she ostensibly
made a demand for a devise under the Will.
¶ 22 “Beneficiary” as it relates to a beneficiary designated in a
“governing instrument” includes a “devisee”; “[g]overning
instrument” includes a will. § 15-10-201(5), (22). “Devisee” means
“a person designated in a will to receive a devise.” § 15-10-201(13).
“Devise,” when used as a noun, “means a testamentary disposition
of real or personal property,” and, when used as a verb, “means to
dispose of real or personal property by will.” § 15-10-201(12).
“Property” means “both real and personal property or any interest
therein and anything that may be the subject of ownership.”
§ 15-10-201(42).
¶ 23 Under these definitions, Town, as a member of Colby’s family
who could claim the property, is a devisee of Colby’s primary
residence and allegedly demanded the devise or a share of it. Cf.
Laymon v. Minn. Premier Props., LLC, 913 N.W.2d 449, 454 (Minn.
2018) (Nothing in the statute “suggests that devisees of residuary
10
property are treated any differently from specific or general
devisees.”) (footnote omitted). That is, Town did not assert a claim
as envisioned by the nonclaim statutes, including section
15-12-804.
¶ 24 As courts in other UPC states have recognized,
non-claim statutes apply only to claims
against the estate of a decedent which, if
allowed, would reduce the corpus of the estate
or the amount of property which would
otherwise be subject to division or distribution
among the heirs of an intestate decedent or the
legatees and devisees of a testate decedent.
Estate of Powers, 552 N.W.2d 785, 787 (N.D. 1996). In other words,
“the assertion of rights as a beneficiary under the terms of a will is
not regarded as a claim against an estate.” Steen & Berg Co. v.
Berg, 713 N.W.2d 87, 90 (N.D. 2006); see Matter of Estate of
Pallister, 770 P.2d 494, 495 (Kan. Ct. App. 1989) (recognizing that
“an assertion of rights under the terms of a will cannot be regarded
as a claim against an estate”); O’Connor v. Immele, 43 N.W.2d 649,
651 (N.D. 1950) (“The claim of a beneficiary . . . is not a claim
against the estate of the testator but a claim of a property right in
that estate, which is itself subject to claims against the estate.”).
11
¶ 25 Accordingly, sections 15-12-803 and 15-12-804 do not apply
to Town’s alleged demand for the house or an interest therein. See
Estate of Gardner, 845 P.2d 1247, 1252 (N.M. Ct. App. 1992)
(holding that New Mexico’s analogous creditor claims statutes did
not govern devisees’ challenge to distribution of estate property).
Indeed, a division of this court in Murphy v. Glenn, 964 P.2d 581,
583-84 (Colo. App. 1998), declined to apply section 15-12-803 to a
dispute brought by alleged devisees over the distribution of assets
under a will. The division concluded that “[a] will contest, or a
dispute over the distribution of [an] estate, is not a claim against
the estate as contemplated by [section] 15-12-803.” Id.¶ 26 Johnson argues that Murphy is distinguishable because the
dispute there concerned whether the decedent owned the subject
property at the time of death. Johnson is mistaken. In Murphy, the
decedent plainly owned the subject property at the time of her
death, and the question presented was whether the putative
devisees were entitled to receive the property under the decedent’s
first will. See id. Likewise here, there is no dispute that Colby
owned the residence at issue at her death. The dispute is whether
12
Johnson properly distributed the residence. Murphy, therefore, is
on point.
¶ 27 In sum, we hold that neither section 15-12-803 nor section
15-12-804 applies to a devisee’s demand for distribution of a devise
under a will.3
D. The Will Governs Demands for the Residence
¶ 28 Having determined that section 15-12-804 is inapplicable, we
further conclude the terms of the Will govern demands for Colby’s
residence.
¶ 29 To repeat, the Will says that Colby’s primary residence “[if] not
claimed by children and grandchildren [is] to be sold by Executor
Kellie Johnson [and] she is to evenly distribute the remaining
monies . . . to my daughters . . . .” The Will does not define “claim”
3 We note that a devisee’s assertion of a claim as defined in the
Colorado Probate Code — such as payment for funeral expenses
and expenses of administration — is governed by sections
15-12-803 and 15-12-804, C.R.S. 2020. In that scenario, the
devisee would be a creditor with respect to that particular claim.
We also note that a devisee’s right to recover property improperly
distributed is time limited. A devisee’s right to do so is barred at
the later of the following: three years after the decedent’s death, or
one year after distribution of the property. § 15-12-1006, C.R.S.
2020.
13
or give guidance as to how the children and grandchildren are
supposed to make such a claim.
¶ 30 When construing a will, the controlling consideration is the
testator’s intent; that intent prevails if it is not prohibited by law or
public policy. Heinneman v. Colo. Coll., 150 Colo. 515, 521, 374
P.2d 695, 698 (1962); Estate of Lewis, 93 P.3d 605, 607 (Colo. App.
2004). Determination of intent should be made from the language
of the will itself. Lewis, 93 P.3d at 607. When the meaning of the
testator’s words is plain and unambiguous, the testator’s intent is
easily determined and must be effectuated. Estate of Paulsen, 113
Colo. 373, 379, 158 P.2d 186, 189 (1945). In cases of ambiguity,
nontechnical terms are to be given their ordinary meanings. Id.¶ 31 The dispute here turns on the meaning of “claim” in the Will.
When used as a verb, a “claim” ordinarily means “to ask for[,]
especially as a right.” Merriam-Webster Dictionary,
https://perma.cc/RUV8-KCDQ. When used as a noun, a “claim”
refers to “a demand for something due or believed to be due.” Id.Considering the term’s ordinary meaning, we conclude that “claim”
under the Will means to ask for Colby’s residence as a right or a
demand for the residence as due under the Will’s terms.
14
¶ 32 Bolstering our conclusion is the fact that the Will does not
provide a procedure for asserting a claim or specify what form a
claim must take. Had Colby intended for a claim to be more formal
or specific, presumably she would have said so. See Heinneman,
150 Colo. at 520, 374 P.2d at 697 (“[C]ourts will not re-write a will
or insert words not placed therein by the testator.”).
¶ 33 The record reveals at least three possible claims by Town for
Colby’s residence:
 The February 2018 email to Johnson in which Town allegedly
requested all or half of the value of the residence.
 The conversation between Johnson and Town’s attorney’s
regarding Town’s desire for half the value of the residence and
an appraisal.
 The conversation between Johnson’s attorney and Town in
which Town allegedly requested “half of what the [residence]
was worth.”
While Johnson did not consider these to be formal claims, the
question is whether they constituted a “claim” under the ordinary
meaning of the term. Because the district court ended its analysis
after concluding that the communications did not satisfy section
15
15-12-804, we must remand for the court to determine whether, in
light of the ordinary meaning of “claim,” any or all of these
communications were valid claims under the Will. As part of this
determination, the court must ascertain the content of the
communications. To the extent the court finds that Town asked for
only the residence’s value or partial value — as opposed to the
residence itself — the court must decide whether Colby intended
such a request to qualify as a valid claim under the Will. The court,
in its discretion, may take additional evidence.
¶ 34 If the court determines that Town made a valid claim, the
court must then ascertain Colby’s intent regarding what must occur
when two or more claims are made under the Will.
III. Remaining Contentions and Attorney Fees
¶ 35 Town contends that Johnson breached her fiduciary duty by
failing to recognize Town’s request for the residence. We do not
address this issue because the record does not show that Town
presented it to the district court and requested a ruling. See Est. of
Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5
(Colo. 1992) (“Arguments never presented to, considered or ruled
16
upon by a trial court may not be raised for the first time on
appeal.”).
¶ 36 After Town missed the deadline for filing her opening brief,
Johnson moved to dismiss the appeal and for attorney fees and
costs. This court later accepted Town’s opening brief filed out of
time and denied Johnson’s motion to dismiss. This court deferred
ruling on the motion for attorney fees and costs and directed
Johnson to address her argument for fees and costs in the answer
brief. Although Johnson requested attorney fees in the answer
brief, she did not explain why she is entitled to them. Therefore, we
deny her request. See C.A.R. 39.1 (“[T]he principal brief of the party
claiming attorney fees must include a specific request, and explain
the legal and factual basis, for an award of attorney fees.”).
¶ 37 Similarly, because Town did not request attorney fees in the
opening brief, we deny her request made in the reply brief. See id.IV. Conclusion
¶ 38 The order approving the final settlement of Colby’s estate is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
JUDGE J. JONES and JUDGE YUN concur.
17