Keeven v. Wakley

DONALDSON, Chief Justice. This is an appeal from an order of the magistrate court that (1) the appellant, Sylvester Keeven, was not an omitted spouse in his deceased wife’s will within the meaning of I.C. § 15-2-301 and (2) the decedent’s real property was her separate property. The district court dismissed Keeven’s appeal stating that it was not provided for by statute and that the magistrate’s order was not a final judgment. We reverse the district court’s dismissal of Keeven’s appeal and affirm the magistrate court’s order. The facts of the case are as follows. Barbara VanLeuven was a widow when she — 454 — and Sylvester Keeven began living together around 1976. In March of 1979, Barbara executed a will, leaving her personal property in equal shares to her five children, and her real property in six equal shares to her five children and her “dear friend Sylvester Keeven.” The residue of Barbara’s estate was left in equal shares to her children. Barbara’s sister, Lila Wak-ley, was nominated as personal representative. In February of 1980, Barbara married Sylvester Keeven. On September 19, 1982, Barbara died. The will of March 1979 had not been redrafted, amended or revoked. Lila Wakley made an informal application for probate of the will on October 13, 1982. She was appointed personal representative and gave notice to Keeven. Keeven petitioned for homestead, exempt property and family allowances provided under I.C. § 15-2-401. On December 13, 1982, the parties stipulated that Keeven was entitled to the allowances and that he was entitled to live in the house for a maximum of one year after the decedent’s death. An inventory listing was filed on March 17, 1983, and a second inventory was filed on May 5, 1983, characterizing and valuing the property of the decedent as separate or community. On April 27, 1983, the personal representative moved for partial summary judgment approving the characterization of decedent’s real property, a house in Lava Hot Springs, as her separate property. In response, Keeven filed an affidavit alleging that he personally performed a majority of the construction of the house and contributed his own money and resources to its construction. He also alleged that he and his deceased wife had always intended and agreed to consider the house as belonging to each of them. The personal representative’s motion was granted. In its Memorandum Decision and Order, dated June 30, 1983, the magistrate court refused to consider Keeven’s affidavit of the oral agreement between himself and the decedent since such testimony would violate I.C. § 9-202(3) (Idaho’s Deadman Statute). The magistrate stated that since there existed no written agreement as to the transmutation of the separate real property to community property, there was no genuine issue of material fact to preclude declaring the real property as separate. Both Keeven and the personal representative then filed motions for partial summary judgment to determine if Keeven was an omitted spouse pursuant to I.C. § 15-2-301 and therefore entitled to an intestate share of decedent’s estate. After a hearing, the magistrate court granted the personal representative’s motion. The court found that Keeven was provided for in the will. The personal representative had also filed a motion for partial summary judgment to settle the characterization and valuation of all property in the second inventory based on Keeven’s failure to respond to her Requests for Admissions. On February 6, 1984, the court denied this motion holding that the facts contained in the second inventory were still in dispute. The magistrate also ordered Keeven to turn over possession of the house to the personal representative. Keeven filed an appeal of the magistrate court's order to the district court. The personal representative filed a motion to dismiss the appeal and, in the alternative, filed a cross-appeal on the magistrate’s denial of partial summary judgment settling the characterization and valuation of the property in the second inventory. Initially, the district court dismissed Keeven’s appeal but suggested it would again entertain the appeal if the magistrate court certified that its order constituted a final judgment under Rule 54(b). On May 3, 1984, the magistrate court did certify its order, and the district court again took jurisdiction and scheduled briefing and hearing dates on the appeal. After a hearing, the district court issued an order striking its previous order scheduling the case for appellate briefs and hearing. It also modified its previous decision by eliminating that portion suggesting it — 455 — would entertain an appeal if a Rule 54(b) certificate was filed by the magistrate court. The district court remanded the case to the magistrate court for completion of the probate and stated it would not entertain any more appeals until the probate was completed, unless the appeal was specifically provided for by the rules or statutes. Keeven now appeals that dismissal to this Court. I Appealability of the Magistrate’s Order Under I.A.R. 11(b), Keeven can appeal the magistrate’s order to the Supreme Court in this probate proceeding as a matter of right only if the order would have been appealable from the magistrate to the district court. Whether the magistrate’s order is appealable to the district court is governed by I.R.C.P. 83(a). In this case, I.R.C.P. 83(a)(3) provides the avenue for Keeven’s appeal. That part of the rule provides for an appeal “[f]rom any order, judgment or decree by a magistrate in a special proceeding in which an appeal is provided by statute.” I.C. § 17-201 is the statute which governs appeals to the district court in probate matters. That section reads “Appealable judgments and orders. —An appeal may be taken to the district court of the county from a judgment, or order of the magistrate’s division of the district court in probate matters: “1. Granting, refusing or revoking, or refusing to revoke, letters testamentary, or of administration, or of guardianship. “2. Admitting, or refusing to admit, a will to probate. “3. Against or in favor of the validity of a will, or revoking or refusing to revoke the probate thereof. “4. Against or in favor of setting apart property, or making an allowance for a widow or child. “5. Against or in favor of directing the partition, lease, mortgage, sale or conveyance of real property. “6. Settling an account of an executor, administrator or guardian. “7. Refusing, allowing or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy or distributive share. “8. Confirming report of appraiser setting apart the homestead.” Keeven argues that the questions raised in his appeal of the magistrate’s order deal with issues encompassed in subsections 3, 4 and 7 of this statute. The district court disagreed, noting that “the only exception which vaguely matches any of the issues decided by the magistrate is exception No. 7, which speaks of the ‘distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy or distributive share.’ ” However, the court said, since the personal representative’s “administration” of the estate does not constitute a “distribution” of the estate, subsection 7 is inapplicable. We agree with the district court that subsection 7 is inapplicable, and based on the plain language of subsection 4, it too appears inapplicable. Only subsection 3 provides a colorable basis on which Keeven can appeal. In Estate of Pierce, 95 Idaho 625, 515 P.2d 1017 (1973), this Court noted that “By the enactment of I.C. § 17-201, the legislature intended that certain actions taken by the courts handling the settlement of decedent’s estate were of such material consequence that it was essential the decisions reached by the courts in those areas should be subject to review by a higher court regardless of whether such decisions were ‘final judgments’ as provided by I.C. § 13-201.” Id. at 626, 515 P.2d at 1018. In Pierce, the Court held that an order of intestacy and appointment of an administrator was appealable under I.C. § 17-201(1) even though not a final judgment. See also, Estate of Spencer, 106 Idaho 316, 318, 678 P.2d 108, 110 (Ct.App.1984), (a more literal approach to subsection 6 of I.C. § 17-201 was followed). — 456 — A. The Omitted Spouse I.C. § 15-2-301 provides: “15-2-301. Omitted spouse. — (a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence. “(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 15-3-902 of this code.” Hence, a determination that someone is an omitted spouse is a determination “against the validity of the will” (I.C. § 17-201(3)) as to the omitted spouse, but not as to the other devisees. Upon such a determination, those other devisees’ share is abated but not reevaluated based on intestacy. The will remains partially valid. I.C. § 17-201(3) should not be read to mean the order must be against or in favor of the validity of the whole will before an appeal can be taken under this section. Since the rights of the spouse are substantially altered upon the determination that he is an omitted spouse, the will is necessarily and substantially invalidated. This is exactly the situation in the present case. Keeven is arguing against the validity of the will. The magistrate court’s order was, therefore, a determination that the will was valid. Hence, the order that Keeven was not an omitted spouse under I.C. § 15-2-301 is appealable under I.C. § 17-201(3). I.C. § 17-201(3) must be read in light of I.C. § 15-2-301 as to an omitted spouse and, arguably, as to pretermitted children under I.C. § 15-2-302 as well. This, however, does not necessarily mean that any other devisee has a similar right to appeal under I.C. § 17-201(3) upon a ruling that the share they take under the will is invalid, at least not until the distribution of the estate. Since Keeven has grounds to appeal the magistrate’s determination that he is not an omitted spouse, based on I.R.C.P. 83(a)(3) through I.C. § 17-201(3), it is unnecessary for us to decide whether the magistrate’s certification of this part of its order as final was an abuse of discretion. B. Characterization of Decedent’s Real Property Since the magistrate court’s order that Keeven was not an omitted spouse is appealable under I.C. § 17-201(3) and I.R. C.P. 83(a)(3), then under I.A.R. 17(e) all other interlocutory orders issued prior to the entry of the final appealable order are available for review. Rule 17(e) reads in pertinent part: “Rule 17. Notice of appeal — Contents. — A notice of appeal shall contain substantially the following information: “(e) Designation of Appeal. (1) A Designation of the Judgment, Order or Decree Appealed From. The notice of appeal shall designate the final judgment, order or decree appealed from which shall be deemed to include, and present on appeal: (A) All interlocutory judgments, orders and decrees entered prior to the judgment, order or decree appealed from, and (B) All final judgments, orders and decrees entered prior to the judgment, order or decree appealed from for which the time for appeal has not expired, and (C) All interlocutory or final judgments, orders and decrees entered after the judgment, order or decree appealed from.” If there is a final appealable order in a case and an appeal is properly taken from that order, then all other orders — 457 — which would otherwise not be appealable may be considered by this Court. Therefore, on remand, the trial court can be correctly advised on the law as it relates to all the issues of the case. Otherwise, much judicial time and resources may be wasted because the parties might have to take another appeal in order to test those same interlocutory orders which this Court could have decided when it decided the final ap-pealable orders in the first appeal. This same concept of judicial economy is contained in I.C. § 1-205 which provides that when a case is remanded by this Court for a new trial, “the court shall pass upon and determine all the questions of law involved in the case presented upon such appeal, and necessary to the final determination of the case.” We have always liberally construed this provision to allow this Court to decide all the issues in a remanded case that will be necessary for the final determination of the case. Olson v. Idaho Dept. of Water Resources, 105 Idaho 98, 99-100, 666 P.2d 188, 189-190 (1983); State v. Stoddard, 105 Idaho 533, 539, 670 P.2d 1318, 1324 (Ct.App.1983). This is true even though an issue so decided is not specifically and separately assigned by the parties as error. Neilsen & Co. v. Cassia and Twin Falls County Joint Class A School Dist. 151, 103 Idaho 317, 318, 647 P.2d 773, 774 (Ct.App.1982); Barry v. Arrow Transportation Co., 80 Idaho 447, 454, 333 P.2d 1008, 1012 (1958). Our duty to facilitate the trial court’s final adjudication of the case is not diminished merely because we are affirming the trial court and remanding for a continuation of proceedings stayed by the appeal rather than remanding from a reversal for a new trial. It is evident, therefore, that I.A.R. 17(e) and I.C. § 1-205 are parallel provisions and both serve the ends of judicial economy. Both contemplate that if there is a final appealable order before the Supreme Court, the Court should resolve all interlocutory issues which have been passed upon by the trial court so that possibly another appeal will be avoided. Hence, although an order declaring part of decedent’s property as separate or community is not normally an appealable order, I.C. § 17-201 and Estate of Freeburn, 97 Idaho 845, 848, 555 P.2d 385, 388 (1976), we will address this issue raised in Keeven’s appeal based on the mandate of I.A.R. 17(e) and I.C. § 1-205. II The Omitted Spouse We now reach the merits of that part of the magistrate’s order granting partial summary judgment to the personal representative on the issue of the omitted spouse, an issue of first impression before this Court. We affirm the magistrate’s order that Keeven cannot be considered an omitted spouse under the decedent’s will since he was specifically provided for in the will. Keeven had moved in with the decedent and lived with her on a full-time basis since 1976, three years before the will was executed. Eleven months afterwards, they were married. After marriage, the decedent did not revise her will even though she was in very poor health. She died two and one-half years after her marriage. Under these circumstances, the magistrate court correctly held that Keeven was specifically provided for by name, even though referred to as “my dear friend,” in the will and was not an omitted spouse. Keeven argues that if the will is executed before marriage and provides for the soon-to-be spouse by name, the will must specifically indicate his capacity as spouse, or state that he is included in the will in contemplation of marriage. A provision for a “dear friend,” Keeven argues, is not equivalent to a provision for a “spouse,” therefore, he is omitted within the meaning of I.C. § 15-2-301. I.C. § 15-2-301 is identical to the corresponding section of the Uniform Probate Code, but has never been construed by this Court. The section is designed to avoid the unintentional disinheritance of the spouse of a testator who executes a will prior to the marriage but neglects to revise it after458 wards. According to the Editorial Board Comment, this section “reflects the view that the intestate share of the spouse is what the decedent would want the spouse to have if he had thought about the relationship of his old will to the new situation.” See Uniform Probate Code, § 2-301, 8 U.L.A. 88 comment (1983). Originally, at common law and later through legislation, many states applied the rule that, whether the testator was a man or a woman, his or her subsequent marriage revoked the will either absolutely, or as to the spouse, or unless it appeared from the will that it was made in contemplation of marriage, or unless the spouse was provided for in the will or otherwise mentioned therein so as to indicate an intention not to revoke. T. Atkinson, Law of Wills § 85 at 424-25 (2nd ed. 1953). Although the Uniform Probate Code does not achieve its result by specifying revocation of the will, its requirement that an omitted spouse not provided for in the will receive the share he or she would have inherited by intestacy clearly reflects a familiar and long standing feature of the law of wills. Estate of Christiansen, 655 P.2d 646, 649 (Utah 1982). In addressing a ease very similar to the present case, the Utah court noted that “Some statutes in force when the Uniform Probate Code was drafted specified that in order to avoid the rule of revocation by marriage a provision for the surviving spouse must have been included in the will in contemplation of marriage. In other words, the will provision must have been executed in favor of the recipient in his or her capacity as a prospective spouse. Even where there was no such requirement in the statute, some cases have imposed that requirement, though others have not. “Even though ‘contemplation of marriage’ figured prominently in prior statutes and case law, the Uniform Probate Code makes no mention of that legal requirement. In a statute so carefully drafted, that omission must have been deliberate. We think it would therefore be inappropriate for the ‘contemplation of marriage’ requirement to be re-en-grafted by judicial decision. The interpretative problems entailed in applying that requirement to various testamentary dispositions, described in Estate of Ganier, Fla.App., 402 So.2d 418, 421 n. 3 (1981), confirm the wisdom of avoiding that requirement unless it is clearly imposed by statute. Here it is not.” Christiansen, supra at 649. We agree with the reasoning of the Utah court and hold that a testator can “provide by will for his surviving spouse” in such a way as to prevent the recipient from being an “omitted spouse” under I.C. § 15-2-301 even though the devise was not expressly made in contemplation of marriage. It is possible that the devise in the will is so minimal and made in such a way that it appears the testator “failed to provide by will for his surviving spouse.” The burden of establishing this; however, is on the surviving spouse. In order to satisfy this burden, “the evidence must be sufficient to establish that the testamentary gift specified before the marriage could not reasonably represent the testator’s effort ‘to provide by will for his surviving spouse.’ ” Christensen, supra at 650; Estate of Ganier v. Estate of Ganier, 418 So.2d 256, 260 (Fla.1982). The relevant factors to consider are: “(1) the alternative takers under the will, (2) the dollar value of the testamentary gift to the surviving spouse, (3) the fraction of the estate represented by the gift, (4) whether comparable gifts were made to other persons, (5) the length of time between execution of the testamentary instrument and the marriage, (6) the duration of the marriage, (7) any inter vi-vos gifts the testator has made to the surviving spouse, and (8) the separate property and needs of the surviving spouse. For example, if a testator’s will made token gifts to various friends, one of whom married the testator years later, the original gift is not likely to quali — 459 — fy as a ‘provision by will for his surviving spouse.’ ” Christensen, supra at 650. It is undisputed that the decedent and Keeven were more than just friends. They had an intimate personal relationship and were living together well before the will was executed. Decedent provided that Keeven have a portion of her real property equal to that of one of her children. Since the vast majority of her estate consisted of her home, this is more than a token inheritance. In fact, when the statutory allowances are included, Keeven’s share of the estate far exceeds the share of any of the children. Keeven is amply provided for by the will and by the statutory allowances and with those factors mentioned above in mind he cannot be considered an omitted spouse. The magistrate’s order that Keeven is not an omitted spouse within the the meaning of I.C. § 15-2-301 is, therefore, affirmed. Ill Characterization of Decedent’s Real Property In the inventory of the estate, the personal representative characterized the decedent’s house in Lava Hot Springs, her only real property, as her separate property. The magistrate court subsequently granted the personal representative’s motion for partial summary judgment confirming this characterization of decedent’s real property. We affirm the magistrate’s order. In support of her motion for partial summary judgment, the personal representative filed an affidavit and a copy of the Warranty Deed to the real property. These established that Barbara Van Leuven purchased the land in 1971 by the Warranty Deed, which has been recorded and is in her name only. In 1976, she began construction of a house which was completed by the time of her marriage to Keeven. Therefore, in February of 1980, when the decedent and Keeven were married, the land and house attached to it were the decedent’s separate property, pursuant to I.C. § 32-903. That provision expresses the most universally accepted principle of community property property law in Idaho: “32-903. Separate property of husband and wife. — All property of either the husband or the wife owned by him or her before marriage, and that acquired afterward by either by gift, bequest, devise or descent, or that which either he or she shall acquire with the proceeds of his or her separate property, by way of moneys or other property, shall remain his or her sole and separate property.” Thus, the burden was placed on Keeven to present evidence of any interest he claimed in his wife’s separate property. Keeven did file an affidavit in opposition to the personal representative’s motion, and stated that he was the one who originally advised the decedent to purchase the land. When construction of the house began in 1976, Keeven stated that “It was decedent’s intent and our agreement that at all times the house would be considered as belonging to each of us.” Keeven also claimed he performed much of the construction work on the house and garage, expended his own money on the home and did all the landscaping. The personal representative objected to the magistrate court’s consideration of Keeven’s affidavit. She asserted that I.C. § 9-202(3), Idaho’s Deadman Statute, rendered the affidavit inadmissible and, therefore, under I.R.C.P. 56(e) it could not be considered in the motion for partial summary judgment. The pertinent part of I.C. § 9-202(3) states, “9-202. Who may not testify. — The following persons cannot be witnesses: “(3) Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any communication or agreement, not in writing, occurring before the death of such deceased person.” — 460 — In Argyle v. Slemaker, 99 Idaho 544, 585 P.2d 954 (1978), we stated that “the statute bars (1) certain persons from testifying (2) in specified actions (3) as to certain communications. All three portions of I.C. § 9-202(3) must be satisfied in order for the evidence to be barred.” Id. at 547, 585 P.2d at 957. In this case, all three requirements are clearly met in that: (1) Keeven is a party in this action against the executrix or administratrix; (2) his claim is against his deceased wife’s estate; and (3) his proffered testimony is as to a communication or agreement, not in writing, occurring before the death of his wife. In Argyle, we found that the third requirement had not been met. However, the facts in the present case, as Keeven asserts them in his affidavit, can easily be distinguished. In Argyle, the appellants had been barred from testifying that a deed to property they had owned was delivered to the respondents without any description of the property conveyed. The deed itself clearly existed and this Court merely refused to read I.C. § 9-202(3) so broadly as to exclude appellant’s testimony as to the state of that deed’s description upon delivery. Such testimony was not a “communication or agreement” within the meaning of the Deadman Statute. We said, “I.C. § 9-202(3) does not bar testimony concerning a state of affairs or matters of fact occurring before decedent’s death.” Id. at 547, 585 P.2d at 957. What Keeven is relying upon here is an oral agreement, pure and simple. Keeven is not claiming the 1971 Warranty Deed of the property is in any way invalid. Rather, he admits in his affidavit that “The decedent and the undersigned [Keeven] had intended to get the title straightened out; however, we had not got around to it prior to the time of decedent’s heart attack which claimed her life.” Unfortunately, what Keeven claims he and his wife intended to do in the future cannot rise to the level of written evidence to substantiate the alleged agreement to convey a real interest to Keeven. He produced no written evidence whatsoever to establish his claim, whether it be in the form of deeds, invoices, contracts, or even letters by the decedent. The magistrate court, therefore, correctly applied I.C. § 9-202(3) when it ruled Keeven’s affidavit inadmissible for purposes of determining the personal representative’s motion for partial summary judgment. Even without Keeven's affidavit, there still remained before the magistrate court the issue of whether there existed a genuine issue of material fact so as to preclude granting the motion for partial summary judgment. I.R.C.P. 56(c). The personal representative, as the moving party, has the burden of showing the absence of any genuine issue of material fact and any evidence she presents must be viewed in a light most favorable to the nonmoving party. LePelley v. Grefenson, 101 Idaho 422, 428, 614 P.2d 962, 968 (1980); Shaw v. City of Rupert, 106 Idaho 526, 528, 681 P.2d 1001, 1003 (1984). The only written evidence before the magistrate relating to Keeven’s claim of an interest in decedent’s real property was the will itself. As noted above, the will left a one-sixth interest in the real property to Keeven. It made no reference whatsoever to any agreement that Keeven should have a greater interest in the real property because of his help to the decedent in acquiring it and building the house on it. Under Idaho’s community property system, any agreement settling the real property rights of husband and wife entered into prior to or during marriage must be in writing, exécuted and acknowledged in the same manner as conveyances of land. I.C. § 32-917. Such agreements must also be recorded. I.C. § 32-918. If no recording occurs, the agreement may still be binding between the parties, absent any intervening rights. I.C. § 32-919; Stockdale v. Stockdale, 102 Idaho 870, 873, 643 P.2d 82, 85 (Ct.App.1982). Thus, although a husband and wife may agree to alter their real property rights at any time, even before marriage, they must engage in certain formalities for those al — 461 — tered property rights to be recognized against third parties. Stockdale, supra. If there really was an agreement between Keeven and the decedent as Keeven alleges, the trial court had no evidence before it which suggested those formalities had been met. The evidence the court did have, namely the will itself and the unchanged Warranty Deed, suggested quite the opposite. Idaho law does not recognize the transmutation of real property by oral agreement. Id.; Griffin v. Griffin, 102 Idaho 858, 862, 642 P.2d 949, 953 (Ct.App.1982). Therefore, even if Keeven’s affidavit had been admissible, it would not have created a genuine issue of material fact. Hence, we affirm the magistrate court’s grant of partial summary judgment that the decedent’s real property is her separate property. Having affirmed the magistrate’s orders on the issues of the omitted spouse and the character of the decedent’s real property, we remand this case back to the magistrate court for a completion of the probate proceedings. Costs to respondent. No attorney fees on appeal. SHEPARD, BAKES and HUNTLEY, JJ., concur.