Parker v. Lewis

CALLISTER, Justice:

This is an action between the executors appointed in the testator’s domicil and the brother of the decedent, a Utah resident; each has sought the admission to probate in Utah of the foreign will and appointment as representative of the estate in Utah. The trial court admitted the will to probate as a foreign will, but denied the petition of the executors and appointed the brother as administrator with the will annexed for the conduct of ancillary probate proceedings in Utah.

Dallas Bedford Lewis, the decedent, died a resident of California on April 25, 1966. He had' prepared his own will, dated December 7, 1965, in which he did not specifically designate an executor but named appellants, Lucille Parker, Jack Heidt, and Robert Gaston as “Trustees”, directing that they perform certain duties and exercise powers which an executor would perform.

On May 2, 1966, Lucille Parker filed a petition in California for the probate of the will, for interpretation of the same, for designation of the executors thereunder or in the alternative for issuance of letters of administration with the will annexed. The next day, Robert Gaston and Jack Heidt filed their petition for probate of the same will.

The respondent, brother of the decedent, received notice of the hearing and engaged a California attorney; both appeared at the hearing.

The California court, after the hearing entered an order dated May 25, 1966, determining decedent died testate, a resident of California having an estate therein and admitted the will to probate. The court found that Parker, Gaston and Heidt were named as executors under the will and ordered letters testamentary be issued to them upon their furnishing a bond in the sum of five million dollars.

The chief asset of the estate in Utah was 17,000 acres of mining property together with a small plant where decedent’s brother was manager.

On June 2, 1966, the decedent’s brother filed a petition in Utah seeking his appointment as ancillary administrator with the will annexed. On June 14, 1966, the California executors filed their objections and a petition for the probate of the will as a foreign will and for issuance of letters testamentary.

A hearing of the two petitions was held June 29, 1966. The trial court admitted the foreign will to probate in ancillary proceedings and appointed the respondent brother administrator. The court found that the appellants were named in the will as “trustees” and not as executors, and as non-residents they were not competent to serve. The court further determined that it was immaterial whether appellants were “trustees” or executors inasmuch as they did not petition the court within thirty days as required by Section 75-3-4, U.C.A.1953, nor did they show good cause for the delay.

The trial court was bound by the holding of the California court that appellants were the executors of the testator’s will. California as the domicil of the decedent was the proper forum to exercise jurisdiction and construe the will. Furthermore, respondent had notice and appeared and participated in the proceedings; he cannot collaterally attack the California judgment in Utah in ancillary proceedings.

The central issue of this case is the interpretation and application of Section 75-3-4, U.C.A.1953, which states:

If the person named in a will as executor, for thirty days after he has knowledge of the death of the testator and that he is named as executor, fails to petition for the probate of the will and for letters-testamentary, he may be held to have renounced his right to letters, and the court may appoint any other competent person administrator, unless good cause is shoivn„ (Emphasis added)

The trial court held that appellants lost the preference rights to letters testamentary in Utah¹ because they had not petitioned therefor within thirty days after their knowledge of the testator’s death. This conclusion is erroneous for several reasons.

First, the testator, who died April 25, 1966, left a self-drawn will which did not name an executor. The appellants were designated as trustees. They did not have knowledge within thirty days after testator’s death that they were the executors of his estate.

Second, on May 25, 1966, the California probate court held a hearing, at which respondent was present, and determined that appellants were the executors of the estate —although not specifically named as such in the will.

Third, the appellants, after being designated by the California court as executors on May 25, 1966, filed their petition in this state for letters testamentary within twenty days thereafter.

Fourth, and finally, the fact that appellants were not named in the will as executors and were not competent to act in that capacity until the determination of the California court on May 25, 1966, clearly places them under the protection of the “umbrella” provision of 75-3-4, U.C.A.1953 — “unless .good cause is shown.”

Reversed and remanded for further proceedings in accordance with this opinion. Costs to appellant.

CROCKETT, C. J., and TUCKETT and HENRIOD, JJ., concur.

1 . 75-3-4, U.C.A.1953.