Novotny v. Wade

DOOLING, Acting P. J. Juanita S. Novotny and Paul G. Stolle appeal from an order appointing Phyllis D. Wade (hereafter called Phyllis) administratrix with the will annexed of the estate of Harriet Stolle Wade (hereafter called Harriet).

Harriet died testate on October 21, 1955. Her will making her surviving husband, John H. Wade (hereafter called John), sole beneficiary was admitted to probate on November 30, 1955, with John as executor.

John married Phyllis on October 15, 1956, and on June 25, 1957, these two executed a joint will. John died two days later, leaving Harriet’s estate still in course of probate. The joint will of John and Phyllis was admitted to probate on August 6, 1957, the court appointing Phyllis and M. Mignon Blood, an employee of John, as coexecutrices. This will after making two bequests of $1,000 each left the residue of the estate of Phyllis. Juanita S. Novotny, the daughter of a deceased brother of Harriet, and Paul G. Stolle, Harriet’s brother (appellants herein), filed a contest of this joint will in which they alleged the existence of a previous will of John’s in which he had bequeathed to each of them $10,000.

Thereafter Phyllis and Juanita Novotny each filed petitions for letters of administration with the will annexed of Harriet’s estate. A third petition was filed by Charles A. Christin, Phyllis ’ attorney herein, but this petition need not be further noticed. The three petitions came on for hearing at the same time, and the court granted Phyllis’ petition and denied the others.

Appellants urge on appeal that the probate court refused to admit pertinent and relevant evidence to support the claim of appellant Juanita Novotny that she should have been ap[689]pointed in preference to Phyllis and that as a result the appointment of Phyllis was an abuse of discretion.

Preliminarily it should be noticed that neither petitioner has any direct interest in the estate of Harriet and neither has preference over the other as a matter of law. Phyllis’ interest in Harriet’s estate is a derivative one—as residuary beneficiary of John’s last will which has been admitted to probate she would take all of John’s estate, except $2,000, and derivatively all of Harriet’s estate after it is distributed to the estate of John. Appellants’ interest in Harriet’s estate is likewise derivative—if they succeed in their contest they would each take $10,000 from John’s estate under his previous will, but in no event would they take any part of Harriet’s estate directly, although they might take some part of it after its distribution to John’s estate.