Opposition Brief — Shriners Hospitals for Crippled Children v. First Security Bank of Utah, N. A.

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Supreme Court of the United States

(

() . > ON OTF Kio ‘“ S

Y BANK O TAH, N.A. AND

Cc ( \ BANK ()} RC) \ ~ \,

QUESTIONS PRESENTED

1. WHETHER THE INTERPRETATION OF THE

WYOMING SUPREME COURT OF A WYOMING STAT-

UTE DETERMINING WHETHER PETITIONER IS A

NAMED BENEFICIARY IN A WILL PRESENTS A SUB-

STANTIAL FEDERAL QUESTION.

2. WHETHER THE DUE PROCESS CLAUSE RE-

QUIRES NOTICE OF A PROBATE SALE OF ESTATE

PROPERTY OTHERWISE DEVISED TO A TRUSTEE OF A

TESTAMENTARY TRUST TO ALSO BE GIVEN TO A

REMAINDER BENEFICIARY OF THAT TRUST IF NO-

TICE OF THE SALE IS GIVEN TO THE TRUSTEE AND

IF THE TRUST’S TERMS PERMIT THE TRUSTEE TO

SELL THE PROPERTY WITHOUT NOTICE TO THE

TRUST BENEFICIARY.

RULE 29.1 STATEMENT

Respondent First Security Bank of Utah, N.A

itional banking association. Its parent corporation is

st Security Corporation and it has no subsidiary corps

—s . Beats .R eel ae

Respondent First Security Bank of Rock Springs is

A’. mMminoaoec y ~ ; ] Coe

vy YOMINZ corporation Its parent corporation 1S aisSo fFrirs

Security Corporation and it has no subsidiary corp

hraAn

its

RULE 29.4 STATEMENT

Since the proceeding draws into question the const

tutionality of Wyo. Stat. § 2-7-205(b), an act of Wyo

affecting the public interest, and neither the attorn:

general of Wyoming nor any agency, officer or employee

§ 2403(b) may

thereof is a party, it is noted that 28 U.S.C

be applicable

11]

TABLE OF CONTENTS

—

JUESTIONS PRESENTED

RULE 29.1 AND 29.4 STATEMENTS

ABLE OF CONTENTS

\BLE OF AUTHORITIES

CONSTITUTIONAL AND STATUTOR

PROVISIONS

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WYOMING STATUTORY

CONCLUSION ..

TABLE OF CONTENTS - Continued

Page

Petitioner Had No Property Interest In The

Pe in chou Ree Chee Ae Ove wae eae nee 17

1. As a Remainder Beneficiary of a Testa-

mentary Trust Petitioner had no Consti-

tutionally Protected Interest in the

Disposition of Assets of the Estate..... 17

2. Whatever Interest or Expectation Peti-

tioner had in the Trust Assets Was Sub-

ject to the Management and Control of

ee Ca ay us Coeveuvcetecte cues 18

3. Whatever Interest Petitioner had in the

Trust Assets is Future and Conjectural... 20

4. The Sale of the Estate Assets Did Not

Eliminate Petitioner’s Recourse Against

GI RNS a cc sfc os ehh eon tec e es 20

Under This Court’s Decisions Notice to the

Trustee Was Sufficient ................ 23

1. The Wyoming Statutory Probate Pro-

cedure Provides For Reasonable Notice 23

2. No Conflicts Disqualified the Trustee... 25

ey eee eer 29

APPENDICES

A. ORIGINAL OPINION OF THE SUPREME COURT

OF WYOMING, MARCH 21, 1989...... Al

B. OPINION ON REHEARING OF THE SUPREME

COURT OF WYOMING, NOVEMBER 15, 1989 Bl

TABLE OF CONTENTS - Continued

Page

OPINION OF THE DISTRICT COURT IN AND

FOR SWEETWATER COUNTY, WYOMING, AU-

(GAA BN SOE ous avsegec pew err enaninekeeeeeuen Cl

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS

TABLE OF AUTHORITIES

CASES

Azarian v. First National Bank of Boston, 383 Mass.

aya, See Vee FOP (IGOR)... os cece acess:

Board of Regents v. Roth, 408 U.S. 564 (1972)

ONO oe ee 17, 18,

Cook v. Elmore, 25 Wyo. 393, 171 P. 261 (1918)...

In re Estate of Lacy, 54 Cal.App.3d 172, 126 Cal.

og EE | a

Farrell v. O'Brien, 199 U.S. 89 (1905)

Foster's Inc. v. City of Laramie, 718 P.2d 868 (Wyo.

1986)

Gropp v. Wisconsin, 400 U.S. 505 (1971) .........

Hansen v. Peoples Bank of Bloomington, 594 F.2d

Peer Grim EW, WDPD)..... 2 nc ccc cccnaesceweess

Herb v. Pitcairn, 324 U.S. 117 (1945)

Illinois v. Gates, 462 U.S. 213 (1983)

re |

Jensen v. Jensen, 4 Wyo. 224, 89 P.2d 1085 (1939).

Kerrison v. Stewart, 93 U.S. 155 (1876)...........

Kersh Lake Drainage District v. Johnson, 309 U.S. 485

(1940) ........

a a

Kind v. Markham, 7 F.R.D. 265 (S.D.N.Y. 1945) ...

Mennonite Board of Missions v. Adams, 462 U.S. 791

(1983)

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950)

“ee ee ee ee ee eee ee ee ehhh hh hl hl

coewreceweeeer eee eee ree eee eee seeer eee eee eee eee

Page |

ree <3

19, 20

ere ~ |

.... 28

Vii

TABLE OF AUTHORITIES - Continued

Page

Peterson v. United States, 41 FR.D. 31 (D. Minn.

cin Ae Te STC Ee OO eee D EE TEE 28

In re Potter’s Estate, 396 P.2d 438 (Wyo. 1964) ....... 18

Rice v. Sioux City Memoria! Park Cemetery, Inc. 349

me FRY REO pies nee is 4 owt chy ee oa el Pan ee es Ess 16

Rirte v. Board of Trustees of School District No. One,

O74 F208 ZIG (Wyo. 1983) . noc oc cciverccnccces 14

Sniadach v. Family Finance Corp., 395 U.S. 337

Ec EE REP EET REE TANS he eee a em PU LN Me cate ene 9

Street v. New York, 394 U.S. 576 (1969) .............. 14

Tobin v. Pursel, 539 P.2d 361 (1975).............000.. 14

Trimble v. Gordon, 430 U.S. 762 (1977) ............... 12

Tulsa Professional Collection Services, Inc. v. Pope,

GP FI. BI EIU 3 oir cic des vec desevacs. 20, 21, 22

Wichita and Affiliated Tribes of Oklahoma v. Hodel,

252 U.S. App. D.C. 140, 788 F.2d 765 (D.C. Cir.

Re ys ee eee ON eons ee kee gies 27

In re Matter of Estate of Wiswall, 11 Ariz.App. 314,

Te EAE WOO AOE ans secs wee OO eRe eee ek es 27

STATUTES

ees te YY.” een ein ine $, 1%, 13

ea es Pets ooh sha She ee an ee 15

WR VO. SONG. GB 2-7-2 IGF) o's 5 nv wees 11

wyo. Stat. § 2-7-2085 (ISTP. is iS S, 9,8, 1%,

Vili

TABLE OF AUTHORITIES - Continued

Page

Poe , er ere eee eT 6

Pee Se ee Ele ox s ealine Weer seve cies one 1]

We Ce 27 SD GOPPE IN so 5 Rado a'e ewe ens madd 22

Internal Revenue Code of 1954, as amended,

MND, Sora tt et Pale sls agate ea gabe yee oa) es 4

Internal Revenue Code of 1954, as amended,

EE gh Paattu ig bed Las hae oe SRE e heed eys.6 4

MiIsceELLANEOUS

G. Bogert, Trusts and Trustees (2d ed. rev. 1980) ..24, 25

United States Supreme Court Rules, Rule 10........... 16

United States Supreme Court Rules, Rule 29.4....00... 15

Wyoming Rules of Civil Procedure, Rule 60(b).......... 7

Wyoming Rules of Appellate Procedure, Rule 5.07...... 14

Shriners Hospitals for Crippled Children vs. First Se-

curity Bank of Utah, et al., Civil No. C-89-247...... 22

CONSTITUTIONAL AND STATUTORY PROVISIONS

The relevant portions of the Constitution of the Unit-

ed States, Amendment 14, Section 1, and Wyoming Stat-

utes 2-7-202, 2-7-205, 2-7-402, 2-7-614, 2-7-615 and 2-7-620

are set out in Appendix D.

No. 89-1444

In The

Supreme Court of the United States

October Term, 1989

SHRINERS HOSPITALS FOR CRIPPLED CHILDREN,

Petitioner,

VS.

FIRST SECURITY BANK OF UTAH, N.A.,

as Personal Representative of the

Estate of Velma Rife Jones

(deceased), et al.,

Respondents.

BRIEF IN OPPOSITION OF RESPONDENTS FIRST

SECURITY BANK OF UTAH, N.A. AND

FIRST SECURITY BANK OF ROCK SPRINGS

—

Respondents First Security Bank of Utah, N.A. and

First Security Bank of Rock Springs respectfully request

that the Petition for a Writ of Certiorari sought by Peti-

tioner to review the judgment of the Supreme Court of

Wyoming entered on November 15, 1989, be denied.

- ,’

OPINIONS BELOW

Petitioner appealed the decision of the District Court

in and for Sweetwater County, Wyoming to the Supreme

Court of Wyoming. The Supreme Court of Wyoming, ina

3-2 decision, denied Petitioner’s original appeal, which is

reported at 770 P.2d 1100 (App. A, infra). Upon rehearing

the Supreme Court of Wyoming, this time in a 4-1 deci-

sion, again denied Petitioner’s appeal. That decision on

rehearing is reported at 782 P.2d 229 (App. B, infra). The

opinion of the District Court is not officially reported.

(App. C, infra).

STATEMENT OF THE CASE

Joseph George Jones, Jr, (“Mr. Jones”) and Velma

Rife Jones, (“Mrs. Jones”) owned certain real property

located in Sweetwater County, Wyoming, commonly

known as the Rife Ranch. (App. A3; R. 197.)! The Rife

Ranch included 17 non-contiguous parcels of deeded land

and various federal and state leases of government-own-

ed property spread over a thirty by twenty mile area in

southwest Wyoming.” (R. 233.) Mr. Jones, a Utah resident,

1 “R. _” denotes reference to the original record of the

District Court proceedings filed in the Supreme Court of Wyo-

ming.

2 The fee land of the Rife Ranch is contiguous only by

virtue of adjacent federal or state lands which were leased by

the Rife Ranch and are completely isolated within the federal

and state lands. Additionally, about 23,360 acres of the fee

property is located on what is commonly referred to as the

“checkerboard” area in which every other section of property

was deeded to the railroad for twenty miles on either side of

the railroad line. This checkerboard effect made it difficult both

to manage and later to market the Rife Ranch. (R. 291, 399-400.)

preceded Mrs. Jones in death. As part of the administra-

tion of Mr. Jones’ estate, First Security Bank of Utah, N.A.

(“First Security-Utah”) and First Security Bank of Rock

Springs (“First Security-RS”) (collectively “Banks”), as co-

personal representatives, requested an appraisal of the

Rife Ranch to determine its “estimated” value, which

appraised at $1.2 million in 1985.? (R. 292.)

Approximately one and one-half years after Mr.

Jones’ death, Mrs. Jones, also a Utah resident, died testate

on October 19, 1986. (R. 198.) Mrs. Jones’ Will (“Will”)

contained cash bequests to six surviving cousins and left

the remainder to First Security-Utah as Trustee of a chari-

table remainder unitrust (“Trust”). (App. A3; R. 12-26.)

The Trust provides the Trustee with the ordinary powers

of a trustee to sell, exchange, and otherwise manage the

assets of the Estate. (R. 17-19.) The Trust further provides

that at the death of the lifetime beneficiary of the Trust,

3 The appraisal clearly indicates in its prefatory pages that

it is merely an “estimate” of the “highest price” the property

might bring at sale. (R. 250.) The appraiser also noted that a

substantial decline in the value of real estate in the area was

ongoing, with potential sellers and realtors alike expressing

“considerable pessimism with regard to the current real estate

market,” (R. 290) and that this substantial decline was due in

part to “very high mortgage interest, low commodity prices,

escalating expenses and a lack of direction concerning federal

agricultural programs.” (R. 290.) Furthermore, Petitioner insin-

uates throughout its Brief the impropriety of the sale without a

reservation of mineral rights, even though its Brief is devoid of

any citation to the record of the value, or even existence of the

mineral rights beyond the few sections listed in the appraisal

report. (R. 265.) The appraisal does note, however, that First

Security-Utah had information on mineral rights and that

“Imlinerals in the general area have traditionally been sold all

or in part with the surface rights, with no discernible value

contribution...” (R. 265-266.)

Mrs. Darrell Rife Mork, the remainder of the Trust would

be distributed equally to Petitioner and the University of

Utah, provided that at such time each qualified as a

charitable organization pursuant to §§ 170(c) and 2055(a)

of the Internal Revenue Code. (R. 16.)

After Mrs. Jones’ death, First Security-Utah and First

Security-RS were appointed as the co-personal represen-

tatives of Mrs. Jones’ Estate (“Estate”) (R. 2) and on

February 20, 1987 a Petition for Probate of Will was filed

by the co-personal representatives of Mrs. Jones’ ancillary

probate in Wyoming. (R. 4.) The Petition for Probate of

Will acknowledged that the Estate had an ownership

interest in the Rife Ranch and “estimated” its value at

$1.2 million, which figure was based upon the old 1985

appraisal prepared at the death of Mr. Jones. (R. 4.)

In the administration of the Estate, First Security-

Utah requested a new appraisal from the same appraiser

who had prepared the original 1985 appraisal. On Febru-

ary 24, 1987, the Rife Ranch was reappraised at an esti-

mated value of $925,000. This lower figure represented

the rapid decline in the real estate market in south-

western Wyoming over the year and a half since the

original appraisal.4 (R. 378-486.)

4 The $300,000 decrease 1n the estimated value of the Rite

Ranch over 1'/2 years was attributed to a substantial decline of

12-14% per year for recent sales of ranches in the area. The

appraiser warned that the second appraisal, which contained

estimated values ranging from a low of $820,000 to a high ot

$1.2 million, was more accurate at the low end since the real

estate market was continuing to rapidly decline. Furthermore,

(Continued on following page)

Several months after the Will was admitted to ancil-

lary probate in Wyoming, Respondent Southern Wyo-

ming Cattle Company, a joint venture of respondents

Rock Springs Grazing Association, Lazy VD Land and

Livestock, and Elza Eversole, (collectively “Buyers”)

made a cash offer to the co-personal representative First

Security-Utah of $820,000. (R. 488.) Upon receipt of the

cash offer, First Security-Utah contacted the appraiser

and discussed the offer in connection with the appraisal

reports. (R. 492-502.) The appraiser concluded that the

cash offer was reasonable because of its cash nature and

because the opportunity cost of the money invested, cou-

pled with the continuing decline in land values, out-

weighed the insignificant 12% differential between the

$820,000 cash offer and his $925,000 appraisal.> (R. 492-3.)

(Continued from previous page)

the appraiser warned that the sales data relied upon in the

appraisal was already eight months old and that in such a

declining market the figures were already dated. (R. 399-401

> Petitioner suggests that the Rife Ranch sold for 30% less

than its appraised value of $1.2 million, choosing to completely

ignore that: 1) the 1985 appraisal was cutdated and was not

relied upon by the Estate; 2) a second appraisal was prepared

for the Estate; and 3) the appraiser reviewed the cash offer of

Buyers and approved its reasonableness. While Petitioner at-

tempts by this artifice to imply egregious conduct, the facts

suggest otherwise. The sale of the Rife Ranch was a mere 12%

less than the estimated appraised value, which admittedly

relied heavily on old data. Furthermore, the figure of $820,001

was one of the valuation figures which the appraiser arrived at

in his appraisal, but chose not to use. (R. 400.) Thus, despite

Petitioner’s underlying suggestion of wrongdoing throughout

its Brief, nothing in the record supports such innuendo.

Accordingly, the co-personal representatives filed a

Petition for Authority to Sell Real Property and for Con-

firmation of Sale with the Court, as required by Wyo.

Stat. §§ 2-7-614 and 2-7-615. (R. 54.) Pursuant to Wyo.

Stat. § 2-7-205, the co-personal representatives contacted

each of the named beneficiaries of the Will, the Trustee

First Security-Utah and the specific devisees, and ob-

tained waivers of the notice to hearing on the proposed

sale.© (R. 58.) The reasons for the sale set forth in the

Petition for Authority to Sell the Property were that it

was in the best interest of the Estate to sell the Rife Ranch

because it was not currently in operation; the Estate was

in need of liquid assets to pay debt, costs of administra-

tion and taxes;” and the Trust, through the Trustee, had

no desire to own or operate the Rife Ranch.®

* Petitioner implies that the Banks had ulterior reasons for

not giving formal notice of the proposed sale to Petitioner or

the other Trust beneficiaries. Rather, Wyoming Stat. § 2-7-205

requires only that notice be given to the beneficiaries named in

the Will, and as a Trust remainderman beneficiary Petitioner

was not entitled to, and therefore not given, notice.

’ Petitioner mistakenly makes the assumption in footnote

7 of its Brief that sufficient liquid assets remained ($108,940)

after payment of expenses to provide for the needs of the

Estate. However, this simple arithmetic fails to take into ac-

count the future income needs of the lifetime beneficiary, Mrs

Mork who was in an enfeebled condition and required inten-

sive medical care. Petitioner also fails to take into account the

operational expenses associated with merely maintaining the

Rife Ranch. The investment income to be derived from

$100,000 would not have met either need, let alone both ot

them.

* Petitioner implies that this language means that the

Banks were representing that “Petitioner had no desire to own

(Continued on following page)

The sale of the Rife Ranch was approved by the

District Court on May 19, 1987. (R. 98.) Two months after

the sale, Petitioner moved the District Court to set aside

the sale pursuant to Wyoming Rules of Civil Procedure,

Rule 60(b), the Wyoming equivalent of the federal rule,

claiming that it was a beneficiary named in the Will and

that, regardless of the needs or best interests of the Es-

tate, its wishes as a prospective Trust remainderman that

the property not be sold should supersede all other con-

cerns of the Estate. Petitioner took this position despite

the fact that it had no legal interest in the property, no

right to notice of sale of the property under Wyoming law

and no right to notice of a sale by a Trustee under the

terms of the Trust. In fact, the terms of the Trust provide

the Trustee with the power, at its sole discretion, to sell

the property. (R. 19.) The District Court denied Peti-

tioner’s Motion for Relief. (App. C; R. 596-601.)

The Wyoming Supreme Court affirmed the District

Court’s denial of the Rule 60(b) motion in a 3-2 decision

(App. A), holding that a contingent beneficiary of a testa-

mentary trust is not entitled to notice of the proposed sale

of an estate asset, thereby making it unnecessary to ad-

dress other issues raised by Petitioner. (App. A9.) Upon

the retirement of Justice Brown, the author of the majority

opinion, Petitioner sought a rehearing of the matter. In a

(Continued from previous page)

or Operate the property.” This is inaccurate. The plain language

of the Petition indicates that the ultimate beneficiary of the Estate

was the Trust, which had no desire to own or operate the Rife

Ranch. Here, as throughout the Petitioner’s Brief, Petitioner

misleadingly suggests that it was a beneficiary of the Will

when in fact it was a remainder beneficiary of the Trust

4-1 decision, written by Chief Justice Cardine, who had

earlier dissented, the Wyoming Supreme Court affirmed

its earlier decision, except that it withdrew any categori-

zation of Petitioner as a contingent beneficiary. (App. B.)

It found such categorization unnecessary to its holding

that Wyoming law does not require notice to beneficiaries

not named in the Will. (/d. at 3.) Thus, the Wyoming

Supreme Court reasoned that “any beneficiary of a trust

created in a will is not a beneficiary under the will for

purposes of the notice requirements” of Wyoming law

(Id.)

REASONS FOR DENYING THE WRIT

Petitioner seeks certiorari to the Wyoming Supreme

Court in order to obtain additional review of the Wyo-

ming State District Court’s refusal to set aside its order

approving the sale of the Rife Ranch. This matter has

already been considered and rejected by three courts,

once by the state district court and twice by the Wyoming

Supreme Court

This case does not involve any important federal

issue. The interpretation of a Wyoming probate statute

does not present a federal question; nor is that statute or

the Wyoming Supreme Court's interpretation of it incon

sistent with this Court’s precedent. Petitioner had pn

interest in the administration of the Estate under Wyo

ming law. Neither does petitioner have any right to con

trol the sale of the Trust’s assets. While Petitioner's

argument presupposes that it has a property interest in

the Jones’ Estate, the Wyoming Supreme Court did

make such a supposition. As Justice Brown cogently ob-

served in the Wyoming Supreme Court's original opin-

ion, Petitioner cannot “bootstrap” its status as a

contingent beneficiary of a trust created under a will to

transform itself into a beneficiary under the Will. (App

A9.) Likewise, Petitioner cannot “bootstrap” a conjectural

and future interest in the Trust to a constitutionally pro-

tectable interest in the Estate. Finally, even to the extent it

were determined that Petitioner holds some constitu-

tionally cognizable interest, the Wyoming probate pro-

cedure accorded those interests appropriate notice

THIS CASE DOES NOT PRESENT A SPECIAL AND

IMPORTANT QUESTION OF FEDERAL LAW.

A. The Interpretation of a State Statute is a Matter

Exclusively Within the Province of the State

Court.

This Court does not review the judgments of state

courts except when the validity of a state statute is drawn

into question under federal law. Herb v. Pitcairn, 324 U.S

117, 125-26 (1945); 28 U.S.C. § 1257(a). This Court does

not sit as a “super-legislative body,” concerning itself

with the wisdom of state law. Sniadach v. Family Finance

Corp., 395 U.S. 337, 339 (1969). The decision of the Wyo-

ming Supreme Court dealt with its interpretation of its

own state law and this Court should not review a matter

of purely State law

*etitioner asserted at the District Court proceeding

that it was a “beneficiary named in the will” and there-

fore was entitled to notice pursuant to Wyo. Stat

S 2-7-205. (App. A5.) Petitioner argued that failure to

state law decision. See, e.g. Farrell v. O’Brien, 199 U.S. 89

(1905). In Trimble v. Gordon, 430 U.S. 762, 771 (1977) this

Court reaffirmed that principle, noting that:

[t]he orderly disposition of property at death

requires an appropriate legal framework, the

structuring of which is a matter particularly

within the competence of the individual

states... Absent infringement of a constitution-

al right, the federal courts have no role here,

and even when constitutional violations are al-

leged, these courts should accord substantial

deference to a State’s statutory scheme of inheri-

tance.

Certainly, the question of whether a party is a “benefici-

ary named in the will” is particularly a matter within the

competence of the state court and its statutory scheme of

probate. Review in this case would undermine the tradi-

tional deference given the states in such probate matters.

Because this Court does not substitute its own judg-

ment for a state Supreme Court’s construction of state

laws, and particularly those relating to probate matters,

and because those were the only issues decided by the

Wyoming Supreme Court, this case offers only a narrow

federal issue for the Court’s review. The only potential

role for this Court in this case would be to consider

arguments that Wyoming’s probate statute, as finally con-

strued by the Wyoming Supreme Court, “is repugnant to

the Constitution.” 28 U.S.C. § 1257(a).'°

10 Petitioner’s jurisdictional statement evades a direct

challenes to the constitutionality of the Wyoming probate stat-

ute, seeking instead to base this Court's jurisdiction on the

assertion that the Wyoming Supreme Court's decisions are

repugnant to the Constitution. Section 1257(a) does not permit

(Continued on following page)

C. The Issue of the Constitutionality of the Wyo-

ming Statutory Probate Procedure Has Not

Been Raised.

Petitioner has yet to assert that Wyoming’s probate

statute is unconstitutional. The Court’s certiorari jurisdic-

tion Over decisions from state courts derives from 28

U.S.C. § 1257(a) which provides that:

[flinal judgments or decrees rendered by the high-

est court of a State in which a decision could be

had, may be reviewed by the Supreme Court by

writ of certiorari . . .-where the validity of a statute

of any State is drawn in question on the ground of

its being repugnant to the Constitution.

In exercising such jurisdiction this Court has held that it

has no jurisdiction over such issues ui .ess a federal ques-

tion has been properly presented or determined in the

court below. Illinois v. Gates, 462 U.S. 213, 218 n. 1 (1983).

The Wyoming Supreme Court's original opinion and

its opinion on rehearing are both silent on the issue of the

constitutional claim of Petitioner. In the Wyoming Su-

preme Court's original opinion, the Court listed the is-

sues presented by Petitioner with no mention of a

constitutional issue. (App. A2.) Clearly the Wyoming Su-

preme Court did not address or decide the issue now

being urged upon this Court. This Court has stated that

“when, as here, the highest state court has failed to pass

upon a federal question, it will be assumed that the

omission was due to want of proper presentation in the

(Continued from previous page)

such a theory. Petitioner does not suggest a conflict with any

federal statutory law nor specially claim any title, right or

privilege under the Constitution. Therefore, Petitioner must

challenge the statute’s validity or this Court lacks jurisdiction.

state courts, unless the aggrieved party in this Court can

affirmatively show the contrary.” Street v. New York, 394

U.S. 576, 582 (1969).

Rule 5.07 of the Wyoming Rules of Appellate Pro-

cedure provides that “[iJn all cases both criminal and

civil .. . in which a statute is alleged to be unconstitu-

tional . . . counsel shall also serve a copy of their brief

upon the attorney general.” The reason for such a rule is

obvious: “[t]he attorney general, being the chief legal

officer of the State, has a duty to protect the interests and

the welfare of the people in declaratory judgment actions

where statutory constitutional questions are in issue.”

Ririe v. Board of Trustees of School District No. One, 674 P.2d

214, 219 (Wyo. 1983), citing Tobin v. Pursel, 539 P.2d 361,

365 (1975).!! Compliance with this rule is mandatory and

failure to comply can render an appeal vulnerable to

dismissal for lack of jurisdiction. Ririe, 674 P.2d at 220.'°

The constitutionality of the statute was not properly pre

sented to the Wyoming Supreme Court as a result of this

11 While Tobin was concerned with an appeal from a de

claratory judgment action, the Ririe decision makes it clear that

the purpose of the Wyoming Rules of Appellate Procedure are

the same and the “need for the state’s chief legal officer t

protect the public interest does not depend mh n the classifica

tion of the proceedings in which the constitutional challer

arises.” Ririte, 674 P.2d at 219

12 The appeal was not dismissed in Ririe because t!

pellant belatedly coinplied with the rule and

court was “not asked to render a decis

tionality of a state statute without the (

of the representative of the peopl tf this stat , 74

at 220.

r r

failure. Such failure must be assumed to be a basis for the

Wyoming Supreme Court's silence on the constitutional

issue.

Petitioner has also failed to provide appropriate no-

tice of this proceeding pursuant to United States Supreme

Court Rules, Rule 29.4. Rule 29.4 requires that “[i]n any

proceeding in this Court wherein the constitutionality of

any statute of a State is drawn into question, and the

State or any agency, officer, or employee thereof is not a

party, the initial pleading, motion, or paper filed in this

Court shall recite that 28 U.S.C. § 2403(b) may be applica-

ble and shall be served upon the attorney general of that

utate.” 28 U.S.C. § 2403(b) provides that “[i]n any action,

suit, Or proceeding in a court of the United States to

which a state or any agency, officer or employee thereof is

not a party, wherein the constitutionality of any statute ot

that State affecting the public interest is drawn in ques

tion, the court shall certify such fact to the attorney

general of the State, and shall permit the State to inter

vene . si

Petitioner has not raised the constitutionality of Wyo

ming’s probate statute and that issue, accordingly, is not

before this Court.

D. The Sufficiency of Wyoming’s Probate lro-

cedure Is Not a Special and Important Federal

Question.

Even were a challenge to the constitutionality of the

State statute properly presented, there is no generally

applicable principle of constitutional law to be derived

trom the Court’s acceptance of this case. As this Court’s

own rules provide, a review by writ of certiorari “is not a

matter of right, but of judicial discretion and will be

granted only when there are special and important rea-

sons.” United States Supreme Court Rules, Rule 10. This

case does not present this Court with either a special or

an important issue. Petitioner’s claim in this case de-

pends solely upon the terms of an individual Trust, the

terms of a particular Will, the application of one state’s

probate laws and the unusual circumstance that the

Trustee of a testamentary Trust also serves as personal

representative of the Estate. While such unique facts may

present an interesting intellectual exercise, they do not

supply the special and important reasons required for a

grant of certiorari; special and important reasons “imply

a reach to a problem beyond the academic or episodic.”

Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70,

74 (1955). Constitutional review of Petitioner’s claim

would necessarily be limited to the peculiar circum-

stances of this one case. This case does not provide the

Court an appropriate platform from which to establish

new constitutional principles.

Il.

THE WYOMING STATUTORY PROBATE PROCEDURE

IS CONSISTENT WITH DUE PROCESS DECISIONS

OF THIS COURT.

This Court’s decisions have established a two part

test to ascertain when a state’s notice procedures violate

due process. First, there must be a state deprivation of a

constitutionally protected interest. Second, the challenged

method of notice, to withstand constitutional scrutiny,

must be reasonably calculated under the circumstances to

apprise parties holding such interests of the pendency of

the action. This Court has held in Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950) that

“if with due regard for the practicalities and peculiarities

of the case these conditions are reasonably met, the con-

stitutional requirements are satisfied.” In this case both of

these elements are absent from Petitioner’s claim. The

Petitioner did not have a constitutionally protected prop-

erty interest in the Estate and the notice provisions of

Wyo. Stat. § 2-7-205(b) are reasonably calculated to ap-

prise interested parties of the sale of estate assets.

A. Petitioner Had No Property Interest.

1. As a Remainder Beneficiary of a Testamen-

tary Trust Petitioner had no Constitution-

ally Protected Interest in the Disposition of

Assets of the Estate.

This Court has long recognized “that [p]roperty in-

terests, of course, are not created by the constitution.

Rather, they are created and their dimensions are defined

by existing rules or understandings that stem from an

independent source such as state law.” Board of Regents v.

Roth, 408 U.S. 564, 577 (1972). Here, whether Petitioner

had a “property interest” protected under the Constitu-

tion is a matter of Wyoming law. Wyoming law, both

statutory and judicial, clearly does not grant a remainder

beneficiary of a trust a property interest in the assets of a

decedent’s estate. Wyoming statutory law provides that

title to a decedent’s property “passes to the person to

whom it is devised by his last will . . . ” Wyo. Stat.

§ 2-7-402. This has long been the law of Wyoming. Cook v.

Elmore, 25 Wyo. 393, 404, 171 P. 261, 264 (1918). The

Wyoming Supreme Court’s decision in In re Potter’s Es-

tate, 396 P.2d 438, 447 (Wyo. 1964), put this issue to rest

when it held that “[o]nly the executor, administrator,

spouse, next of kin, heirs, legatees, devisees and creditors

of the deceased or of the administration are parties inter-

ested in the estate.” Furthermore, the Wyoming Supreme

Court has long held that contingent or future “expectan-

cies or possibilities of inheritance which may be fulfilled

or defeated, depending upon various contingencies and

situations” are not sufficient protectable property rights.

Jensen v. Jensen, 4 Wyo. 224, 89 P.2d 1085, 1088 (1939); cf

Foster's Inc. v. City of Laramie, 718 P.2d 868, 876 (Wyo.

1986) (“To have a property interest in a benefit, a person

clearly must have . . . a legitimate claim of entitlement to

it” citing Board of Regents v. Roth, 408 U.S. 564 (1972)).

In this case, upon the death of Mrs. Jones, the proper-

ty of the Estate passed to First Security-Utah as Trustee,

subject to possession of the personal representatives. The

Petitioner had no property interest in the Estate to pro-

tect. Petitioner only had an interest in the Trust, which

provided that Petitioner could receive, in the future, a

share of its proceeds depending upon the fulfillment of

certain contingencies.

2. Whatever Interest or Expectation Petitioner

had in the Trust Assets Was Subject to the

Management and Control of the Trustee.

The Trustee had the power, in its sole discretion,

“without order or license of any court” to “sell, exchange,

lease, pledge, mortgage, transfer, convert or otherwise

dispose of ... any and all property at any time forming a

part of the Trust Fund, in such manner . . . as the Trustee

may deem advisable.” (R. 17-19.) Thus, even if the per-

sonal representatives had not sold the Rife Ranch, the

Trustee had sole discretion to do so without notice to the

Trust beneficiaries.

The procedural protections accorded a property in-

terest may be limited by the terms of an instrument that

creates the interest. Board of Regents v. Roth, 408 U.S. 564

(1972). In Roth, an assistant professor at a state university

claimed that he was denied due process before being

deprived of his “property interest” in his continued em-

ployment. This Court, noting that his employment con-

tract contained a termination date with no provision for

renewal, disagreed:

[T]he terms of the [professor’s] appointment se-

cured absolutely no interest in re-employment

for the next year. They supported absolutely no

possible claim of entitlement to re-employment.

Nor, significantly, was there any state statute or

university rule or policy that secured his interest

in re-employment or that created any legitimate

claim to it. In these circumstances, the respon-

dent surely had an abstract concern in being

rehired, but he did not have a property interest

sufficient to require the University authorities to

give him a hearing when they declined to renew

his contract of employment.

408 U.S. at 578 (footnote omitted, emphasis by the court).

In this case, neither the Trust’s terms nor Wyoming pro-

bate procedure creates any “legitimate claim” for Peti-

tioner to control disposition of Trust property. Yet,

despite this fact, Petitioner argues that the due process

clause requires Wyoming to provide for notice of such

disposition in its probate procedure. Just as due process

did not expand the terms of the assistant professor’s

contract in Roth, that same clause cannot be read to create

some right in the Petitioner to control the sale of the Trust

property when that right is not provided by either the

Trust’s terms or Wyoming probate law.

3. Whatever Interest Petitioner had in the

Trust Assets is Future and Conjectural.

While this Court recognizes the protection due pro-

cess rights extend to property interests, “the range of

interests protected by procedural! due process is not infi-

nite.” Board of Regents v. Roth, 408 U.S. at 570. In Mullane,

this Court noted that it is not “unreasonable for the state

to dispense with more certain notice to those beneficiaries

whose interests are either conjectural or future.” Mullane,

339 U.S. at 317. “Nor is everyone who may conceivably

have a claim properly considered a creditor entitled to

notice.” Tulsa Professional Collection Services Inc. v. Pope,

485 U.S. 478, 490 (1988). “Here, as in Mullane, it is reason-

able to dispense with actual notice to those with mere

‘conjectural’ claims.” Id. Clearly this Court has recog-

nized that in the name of du» process, notice require-

ments have their limits. Petitioner in this case had no

interest in the Rife Ranch and should not be entitled to

notice of its sale. It was not a beneficiary under the Will,

it had no right to direct the Trustee concerning the Rife

Ranch and its interest in the Trust proceeds was future

and conjectural.

4. The Sale of the Rife Ranch Does Not Elimi-

nate Petitioner’s Recourse Against the

Trustee.

The Wyoming Supreme Court’s decision is consistent

with this Court’s decisions involving statutes which

extinguish potential causes of action. Petitioner’s reliance

on those decisions is misplaced. In Mullane, the depriva-

tion of a property right was manifested by the fact that

the New York judicial procedure eliminated the rights of

the Trust beneficiaries to “have the trustee answer for

negligent or illegal impairment of their interests.” Mul-

lane, 339 U.S. at 313. Similarly, in Tulsa Professional Collec-

tion Services, the Oklahoma statute required the filing of

claims against an estate within two months of publication

of a notice advising creditors of the commencement of

probate proceedings. The effect of the Oklahoma statute

was to “forever bar untimely claims, and by virtue of the

statute, the probate proceedings themselves have com-

pletely extinguished appellant’s claim.” Tulsa Professional

Collection Services, 485 U.S. at 488. In both cases the pro-

cedure barred any subsequent action against the Trustee

and adjudicated the rights of the beneficiaries without

notice.

Petitioner’s claims are not extinguished here. The

Wyoming District Court’s order approving the sale of the

Rife Ranch did not alter the obligation of the Trustee to

the beneficiaries, it did not settle a final accounting of the

Trust, nor did it eliminate any rights the Trust benefici-

aries may have against the Trustee for mismanagement of

the Trust. The District Court in this case noted as much,

stating that if First Security-Utah was remiss in its assent

to the sale, Petitioner’s remedy would be to sue the bank

for damages. (App. C6.) Indeed, the Petitioner has done

just that.'° Petitioner, unlike the trust beneficiaries in

'3 Petitioner has brought suit against the Trustee for dam-

ages in Wyoming District Court, Third Judicial District, State of

(Continued on following page)

Mullane, or the creditors of the estate in Tulsa Professional

Collection Services, has not been deprived of rights it may

have against the Trustee.

Nor is Petitioner’s claim against the Trustee diluted.

In Mullane, this Court recognized that the judicial settle-

ment of an accounting of a trust whereby the state court

ratified the fees and expenses of the trustee was a dimi-

nution of the beneficiaries’ interests, and in Mennonite

Board of Missions v. Adams, 462 U.S. 791 (1983), the Court

recognized that a tax sale whereby the mortgagee lost its

secured interest in property to a tax-sale purchaser affect-

ed the mortgagee’s interest. Id. at 798. The mortgagee in

Mennonite had a remedy directly against the property,

which the tax sale extinguished. Here, however, the sale

does not dilute nor diminish the value of a beneficiary's

claim against the Trustee. Petitioner had no right or claim

of ownership or interest in the Rife Ranch, only a cause of

action against its Trustee. That claim still exists, trust

funds still exist and no court order has granted priority

over Petitioner’s claims against the Trustee, nor extin-

guished such claims.

Petitioner’s reference to Wyoming Statute § 2-7-620

as a bar to suit against the Trustee for mismanagement is

also misplaced. Wyo. Stat. § 2-7-620 provides that “no

proceedings for sale, . . . by a personal representative of

property belonging to the estate is subject to collateral

(Continued from previous page)

Wyoming in a case entitled Shriners Hospital for Crippled Chil-

dren v. First Security Bank of Utah, et al., Civil No. C-89-247,

which is still pending.

attack on account of any irregularity in the proceedings

which do not deprive the court of jurisdiction.” This

statute makes no reference to a claim against the Trustee

and clearly does not bar such an action.

B. Under This Court’s Decisions Notice to The

Trustee Was Sufficient.

Even if Petitioner had a constitutionally protected

interest in the Estate, which it does not, due process was

satisfied when the Trustee, as the beneficiary under the

Will and the party with the protected property interest,

was given notice of the sale. The notice given to the

Trustee was appropriate for two reasons. First, a testa-

mentary trustee is the trust beneficiaries’ representative

with regard to such sales and for purposes of notice

thereof; a statute which assumes as much in determining

what notice is required is reasonable. Second, no conflict

existed in this case between the Trustee and the benefici-

aries or among the beneficiaries that would preclude the

trustee from acting as the beneficiaries’ representative for

purposes of notice of the sale.

1. The Wyoming Statute Provides For Reason-

able Notice.

The Wyoming probate procedure challenged by Peti-

tioner provides that the personal representative must

give mailed notice of the proposed sale to the benefici-

aries named in the will. The Wyoming Supreme Court

interpreted this provision to require notice to the trustee

of a testamentary trust as the named beneficiary in the

will, but not to that trust’s beneficiaries. (App. A9; B3.)

The due process clause should not be read as invalidating

this reasonable statutory procedure.

In this case, the personal representative’s notice to

the Trustee was constitutionally sufficient notice to the

remaindermen. “Generally the trustee has power to rep-

resent the beneficiary so that notice to the former is

effective against the latter.” G. Bogert, Trusts and Trustees,

§ 593 (2d ed. rev. 1980); see Kerrison v. Stewart, 93 U.S. 155

(1876). Wyoming’s statutory procedure is consistent with

this general rule. As the Wyoming Supreme Court recog-

nized, Petitioner’s argument that it was entitled to indi-

vidual! notice rather than through its Trustee ignores the

“independent life” of the Trust. (App. A8.) To permit

Petitioner to “bootstrap” its status as beneficiary under

the Trust to that of a beneficiary under the Will would

completely ignore the existence of the Trust, the Trustee's

role, and the clear intent of Mrs. Jones as the testatrix.

The Wyoming statute makes a reasonable attempt to

provide for notice to all interested parties. That is all that

is required under Mullane. No statute can anticipate every

possible conflict that might arise between a trustee and

its beneficiaries. If, because of such a conflict, the statu-

tory procedure fails to give notice to an adequate repre-

sentative of the beneficiaries of a trust, perhaps some

action against a trustee arises in favor of those parties.

But such an action would be against a private entity,

arising out of that entity’s purely private conduct. Peti-

tioner’s quarrel is with the adequacy of its representative,

not the sufficiency of Wyoming’s statutory procedure for

notice. Any imagined wrong done to Petitioner in this

case is not the result of state action, and it is not of

constitutional dimension.

2. No Conflicts Disqualified the Trustee.

Petitioner raises for the very first time the suggestion

that a conflict of interest between the Trustee and the

beneficiaries creates a basis for its assertion of a violation

of due process. This issue was never raised at any level of

this proceeding in the Wyoming courts. It was not raised

at the District Court level, nor was it raised on either of

the two proceedings before the Wyoming Supreme Court.

As such, this issue was never presented to the Wyoming

courts and should not now be appropriate for review by

this Court. Illinois v. Gates, 462 U.S. at 217-220.

In any event, no conflict between the Trustee and the

remainder beneficiary existed with respect to the Trust-

ee’s assent to sell the property in this case.!4 The law of

trusts recognizes that “the trustee may represent the ben-

eficiary in all actions relating to the trust, if rights of the

beneficiary as against the trustee, or the rights of the

beneficiaries among themselves, are not brought into

question.” G. Bogert, Trusts and Trustees, § 593 (2d ed. rev.

‘4 Although the trend is to extend a trustee’s power of

representation, an exception to the general rule permitting

trustees to represent beneficiaries exists in the event of a

conflict between a trustee and its beneficiaries or among the

interests of the beneficiaries. G. Bogert, Trusts and Trustees,

§ 593 (2d ed. rev. 1980). The issue of the trustee’s capacity to

represent its beneficiaries in this case is one the Wyoming

Supreme Court was and is “competent finally to decide.” Kersh

Lake Drainage District v. Johnson, 309 U.S. 485 (1940). Moreover,

if the due process clause were read to mean that this narrow

exception requires state statutes to provide for notice to trust

beneficiaries whenever a possible conflict exists, the exception

would overcome the general rule.

1980). Here, neither the personal representative, the

Trustee, nor the beneficiaries of the Trust had any interest

in obtaining less than fair market value from the sale of

the property. Evidently, Petitioner disagreed with the de-

cision to sell. But that is only a difference in judgment; it

is not a conflict of interest that disqualified the Trustee

from representing Petitioner despite that difference of

opinion. The proceeding permitting the sale of the prop-

erty did not approve any fees of the trustee as in Mullane,

nor did it apportion the proceeds between the income

beneficiary and the remaindermen.

Petitione- cites several cases in its Brief that it sug-

gests demonstrate that First Security-Utah as Trustee was

incapable of representing the beneficiaries in this case.

None of these cases, however, support such a proposi-

tion. In each of these cases, the Trustee was positioned to

withdraw assets from the Trust for its own use, apportion

assets among beneficiaries, or foreclose some cause of

action against itself. None of these cases involve the

trustee’s management of trust assets.

In Mullane, the Court held that trust beneficiaries

were entitled to reasonable, direct notice of a proceeding

approving the trustee’s fees. The Court reasoned that in

such a proceeding, the trustee became an adversary to the

beneficiaries. Mullane, 339 U.S. at 316. Because of this

adversarial relationship, the Court held that the trustee

could not represent the beneficiaries’ interests in a pro-

ceeding to approve his own fees. Thus, the Court held

that the New York statute at issue, which provided for

only published notice of the proceedings approving the

trustee’s fees, was invalid. Id.

Likewise, in Hansen v. Peoples Bank of Bloomington, 594

F.2d 1149 (7th Cir. 1979), the income beneficiary of a

spendthrift trust brought an action to dissolve the trust

and thereby eliminate the interests of the remainder bene-

ficiaries. On the trustee’s motion, the Seventh Circuit

held that joinder of the remaindermen was required in a

suit to dissolve a trust. As the Court noted, the trustee

could not adequately represent the beneficiaries when the

Suit pitted the interests of the remainderman and the

income beneficiary directly against each other. Id. at 1153.

Similarly, in Wichita and Affiliated Tribes of Oklahoma v.

Hodel, 252 U.S. App. D.C. 140, 788 F.2d 765 (D.C. Cir.

1986), one income beneficiary sought apportionment of

income without joining the other income beneficiaries.

Again, that case involved a situation where the benefici-

aries’ interests conflicted because apportionment among

the beneficiaries was sought. In Azarian v. First Natiunal

Bank of Boston, 383 Mass. 492, 423 N.E. 2d 749 (1981), and

In the Matter of the Estate of Wiswall, 11 Ariz. App. 314,

321, 464 P.2d 634, 641 (1970) the trustees sought approval

of their accounts. And in Estate of Lacy, 54 Cal.3d 172, 126

Cal. Rptr. 432 (1975) an income beneficiary was not per-

mitted to represent the remaindermen in an action re-

garding the invasion of the trust corpus.

In all of the cases cited by Petitioner, the issues

involved apportionment of trust property between either

the trustee or the income beneficiaries and the remainder-

men. In such cases, as Mullane recognized, the nature ot

the proceeding is sufficiently adversarial because it di-

vides trust property among the different interests. States

may assume, however, that a trustee represents its bene-

ficiaries in actions that do not, by their nature, involve an

eal

adversarial relationship. Such an assumption does not

offend Mullane. Mullane, 339 U.S. at 316. Courts recognize

the principle that a trustee who may have a conflict of

interest may nevertheless represent its beneficiaries in

actions unrelated to that conflict. For example, in Peterson

v. United States, 41 FR.D. 31 (D. Minn. 1966), a case quite

similar to the facts of this case, the executors of an estate

served as trustees of a testamentary trust and one trustee

was even an income beneficiary. Nevertheless, the Dis-

trict Court held that the executors could adequately rep-

resent the interests of the income beneficiaries and the

remaindermen in an action to recover a payment made to

the IRS. The court reasoned that all the beneficiaries, as

well as the trustees and executors, had an identical inter-

est in recovering the money even though, ultimately, each

of the various interests stood to benefit differently from

any recovery. 41 F.R.D. at 134. See also, Kind v. Markham, 7

F.R.D. 265 (S.D.N.Y. 1945).

When a proceeding at issue involves only the recov-

ery or disposition of property on behalf of a trust, rather

than apportionment of that property among the various

parties interested in the trust, the trustee can adequately

represent all concerned with the trust. Here, the Trustee

has no conflict of interest with the income beneficiary or

the contingent remaindermen with respect to the sale.

The Trustee did not stand to gain any interest in the sale

of the Rife Ranch, nor did it stand to eliminate any

potential cause of action against it for the exercise of its

discretion in its assent to the sale of the property.

CONCLUSION

The Wyoming Supreme Court concluded that, for

purposes of probate, the beneficiaries of the Estate are the

only persons or entities having an interest in the Estate

for which notice of action is required. In that way the

intentions of the decedent are carried forward. Even

though Petitioner, as a trust remainderman beneficiary,

may desire the powers of First Security-Utah, a Trustee,

the decedent Mrs. Jones mandated otherwise. For these

reasons, and all those set forth above, First Security-Utah

and First Security-RS respectfully urge the Court to deny

the Petition for a Writ of Certiorari to the Wyoming

Supreme Court.

Respectfully submitted,

Ronny L. CutTsHALi

Counsel of Record

RANDALL N. SKANCHY

ANDREW H. STONE

Jones, Wa.po, HoLtsrook &

McDonoucH

170 South Main Street

Suite 1500

Salt Lake City, Utah 84101

(801) 521-3200

Attorneys for Respondents

First Security Bank of Utah, N.A.

and First Security Bank of Rock

Springs

APPENDIX A

In the Matter of the ESTATE OF

Velma Rife JONES, Deceased.

SHRINERS HOSPITALS FOR CRIPPLED

CHILDREN, Appellant (Petitioner),

FIRST SECURITY BANK OF UTAH, N.A.,

Personal Representative; First Security

Bank of Rock Springs, Resident Personal

Representative; Rock Springs Grazing

Association; Lazy VD land and Livestock;

Elza Eversole; and Lois M. Eversole,

Appellees (Respondents).

No. 88-4.

Supreme Court of Wyoming.

March 21, 1989.

Contingent beneficiary of testamentary trust estab-

lished in will sought to set aside sale of estate property.

The District Court, Sweetwater County, Kenneth G.

Hamm, J., denied motion, and appeal followed. The Su-

preme Court, Brown, J., Retired, held that contingent

beneficiary of testamentary trust was not entitled to indi-

vidual notice of proposed sale of estate asset.

Affirmed.

Cardine, C.J., dissented and filed an opinion in which

Rooney, J., Retired, joined.

Rooney, J., Retired, filed dissenting opinion in which

Cardine, C.J., joined.

* * *

Before CARDINE, C.J., THOMAS and MACY, JjJ.,

ROONEY and BROWN, Retired, JJ.

BROWN, Justice, Retired.

Appellant Shriners Hospitals for Crippled Children

(Shriners), a contingent beneficiary of a testamentary

trust established in the will of Velma Rife Jones, sought

relief under W.R.C.P. 60(b) from an order authorizing and

confirming the sale of estate assets. The district court

denied the motion and Shriners appeals.

Shriners states the issues to be:

1. Whether Appellant has standing to claim relief

under W.R.C.P., Rule 60(b).

2. Whether the District Court has the authority un-

der W.R.C.P., Rule 60(b) to set aside the conveyance made

pursuant to its Order Approving Sale of Real Property

And Confirmation of Sale entered May 19, 1987.

3. Whether failure of Co-Personal Representatives

to give Appellant the notice mandated by Wyo. Stat.

(1977), §§ 2-7-615 and 2-7-205(b) nullifies the District

Court’s Order and Personal Representatives’ Deed dated

May 19, 1987.

4. Whether the purported sale of May 19, 1987 can

be set aside because it was unnecessary and not in Appel-

lant’s best interest.

5. Whether it was reversible error for this court to

cut-off Appellant’s discovery and to deny Appellant the

opportunity for a full and fair hearing of its claim under

W.R.C.P., Rule 60(b).

Answering the following question, similarly posed in

Issue No. 3, effectively disposes of all the issues raised by

Shriners: Is a contingent beneficiary of a testamentary

trust entitled to separate and individual notice of a pro-

posed sale of an estate asset in addition to notice given to

the trustee? We answer that question in the negative and

affirm the trial court.

Velma Rife Jones, a Utah resident, died testate on

October 19, 1986. Her will contained specific bequests to

several named cousins, if they survived her, and the

residuary estate was left to appellee, First Security Bank

of Utah, N.A., as trustee of a testamentary trust. Darrell

Rife Mork, the decedent’s sister, was named as lifetime

beneficiary of the trust income, with the remainder to

Shriners and the University of Utah if they qualified as

organizations described in §§ 170(c) and 2055(a) of the

Internal Revenue Code.

The assets of the estate included a Wyoming ranch,

and the will was consequently admitted to ancillary pro-

bate in Wyoming. Appellees, First Security Bank of Utah

and First Security Bank of Rock Springs, were appointed

co-personal representatives. Appellees Rock Springs

Grazing Association, Lazy VD Land and Livestock, and

Elza Eversole were interested in buying the ranch, which

was appraised at $1.2 million in 1985, and was reap-

praised at $925,000 in August, 1987. They formed a joint

venture called Southern Wyoming Cattle Company and

made a cash offer of $820,000 to the co-personal represen-

tative, First Security Bank of Utah. The trust officer made

minor modifications to the offer and Southern Wyoming

Cattle Company accepted those terms.

The co-personal representatives filed a petition for

authority to sell the real property as required by WS.

2-7-614 (July 1980 Repl.). The asserted reasons for the sale

were that

the Estate is in need of liquid assets to pay the

debts, specific bequests, costs of administration

and taxes of the Estate and that the ultimate

beneficiary of the Estate (a trust for the benefit

of Darrell Rife Mork, the sister of Velma Rife

Jones during her lifetime and then after her

death two charities) has no desire to own or

operate the Rife Ranch.

The petition further stated that

[t}here has been filed herein Waiver of Notice of

hearing of the above matter by the only benefici-

aries of the Estate of Velma Rife Jones, De-

ceased, and Petitioners believe that no notice of

the hearing of the Petition needs to be given.

Attached to the petition were waivers of notice exe-

cuted by the recipients of the five specific will bequests

and First Security Bank of Utah as trustee of the testa-

mentary trust.! No notice was given to Shriners or the

University of Utah. On May 19, 1987, the court entered an

order approving and confirming the sale.

On July 6, 1987, Shriners filed a W.R.C.P. 60(b) mo-

tion for relief from the order, requesting the court to set

aside the sale and declare it void. Shriners asserted that

the failure to provide notice to the contingent benefici-

aries Or remaindermen violated the statutory notice re-

quirements. The relevant notice statutes provide:

' The waiver from the bank initially states that First Inter-

state Bank of Utah is waiving notice. This no doubt is a

typographical error.

A5S

Upon filing of the petition, the court shall fix the

time and place of hearing of the petition, and the

personal representative shall give notice of the hear-

ing as provided in W.S. 2-7-205, * * * . At the

hearing and upon satisfactory proof the court

may order the sale, mortgage, exchange, pledge

or lease of the property described or any part

thereof at such price and upon such terms and

conditions as the court may authorize.

W.S. 2-7-615 (July 1980 Repl.) (emphasis added).

Unless waived in writing by the parties entitled

thereto, the notices required in W.S. 2-7-202,

2-7-203, 2-7-204, 2-7-615, 2-7-806, 2-7-807 and

2-7-811 shall be mailed not less than ten (10)

days prior to the date of hearing, the date for

filing objections, or sale, as the case may be, to

the surviving spouse, if any, and to all of the

heirs of a decedent dying intestate or to all of the

beneficiaries named in the will of a decedent dying

testate.

W.S. 2-7-205(b) (July 1980 Repl.) (emphasis added).

Shriners asserted that it was one of the “beneficiaries

named in the will” and was therefore entitled to notice. In

response, the co-personal representatives argued that

Shriners, as a trust beneficiary, was not entitled to notice,

that Shriners was not entitled to file a motion for relief

under W.R.C.P. 60(b), and that the motion for relief was

an impermissible collateral attack on the district court’s

order. In disposing of the motion, the district court did

not address the question of whether Shriners was one of

the “beneficiaries named in the will” as that term is used

in W.S. 2-7-205(b). Instead, the court relied on WS.

2-7-620 (July 1980 Repl.), which provides:

No proceedings for sale, mortgage, pledge,

lease, exchange or conveyance by a personal

representative of property belonging to the es-

tate is subject to collateral attack on account of

an irregularity in the proceedings which do not

deprive the court of jurisdiction.

Relying on Hartt v. Brimmer, 74 Wyo. 338, 287 P.2d 638

(1955) and Security-First National Bank of Los Angeles v.

Superior Court of Los Angeles County, 1 Cal.2d 749, 37 P.2d

69 (1934), the district court concluded that the estate

administration was an in rem proceeding and, because

the court had jurisdiction over the property and the per-

sonal representative, failure of notice to Shriners was not

a jurisdictional defect. In addition, the court apparently

concluded that Shriners’ motion constituted a collateral

attack concerning a non-jurisdictional matter. Shriners

appeals from the denial of its W.R.C.P. 60(b) motion.

Although our legal analysis of the issues in this case

differs from that employed by the trial court, the end

result is the same.

Shriners contends that it is a beneficiary under the

will and that its interest is vested, rather than contingent,

and as a vested beneficiary it was entitled to notice of the

proposed sale of an estate asset. In support of this reason-

ing, Shriners cites In re Potter’s Estate, 396 P.2d 438 (Wyo.

1964); McGinnis v. McGinnis, 391 P.2d 927 (Wyo. 1964);

and W.S. 2-7-402, 2-7-615 and 2-7-205. The cases cited by

Shriners do not support its contentions.

Potter’s Estate involved, among other things, the

question of the vesting of real property in the heirs at law

of a decedent who died intestate and the necessity of

selling estate property. In that case, this court stated that

“{o]nly the executor, administrator, spouse, next of kin,

heirs, legatees, devisees, and creditors of the deceased or

of the administration are parties interested in the estate.”

In re Potter’s Estate, 396 P.2d at 447.

In support of its contention that it is a vested bene-

ficiary or vested remainderman, Shriners cites McGinnis.

That case has nothing to do with determining the nature

of Shriners’ interest. In McGinnis, a family owned a ranch

and in 1941 assigned the oil and gas royalties in trust toa

bank. In 1956, one famil, member received royalty pay-

ments and refused to pay the royalties to the trustee. The

rest of the family sued the relative, and he defended on

the grounds that the assignment was illegal on the basis

of the “rule against perpetuities,” and that it was an

unreasonable restraint on alienation. This court held the

trust was valid. Neither McGinnis nor Potter’s Estate in-

volves notice or lack of notice to contingent beneficiaries

or contingent remaindermen and has no relevancy in the

case before us.

Clearly Shriners’ interest in the trust property is not

vested. “[A] vested remainder is one which is limited to a

person in being, whose right to the estate does not de-

pend on the happening or failure of any future event. Safe

Deposit & Trust Co. v. Bowse, 181 Md. 351, 29 A.2d 906

[(1943)]. 8 Maryland L.Rev. 142.” 28 Am.Jur.2d Estates,

§ 242, n. 6 (1966). There is at least one future circumstance

that would prevent Shriners from ever receiving any

benefits under the trust-if, at the time of his death of the

life beneficiary of the trust, Shriners is nct an “organiza-

tion described in Section 170(c) and Section 2055(a) of the

Internal Revenue Code of 1954 as amended * * * .” The

resolution of the problem of notice does not depend,

however, upon whether Shriners was a vested beneficiary

or a contingent beneficiary. It still was not a “beneficiary

named in the will.”

W.S. 2-7-402 (July 1980 Repl.) states in pertinent part:

Except as otherwise provided in this code, when

a person dies the title to his property, real and

personal, passes to the person to whom it is

devised by his last will, or in the absence of

such disposition to the persons who succeed to

his estate as provided in this code. However, all

of his property is subject to the possession of the

personal representative and to the control of the

court for the purposes of administration, sale or

other disposition under the provisions of

i kek

Under W.S. 2-7-402, title to decedent’s property passed to

the person to whom it was devised. In this case it passed

to First Security-Utah, as trustee, not Shriners or the

University of Utah.

W.S. 2-7-615 requires that notice of the hearing for

the sale of real property to be given as provided in W.S.

2-7-205 (July 1980 Repl.) “to all of the beneficiaries named

in the will of a decedent dying testate.” W.S. 2-7-615 and

2-7-205 in combination simply provide that notice of a

hearing for the sale of estate property be given to “bene-

ficiaries named in the will of a decedent dying testate.” In

this case, the beneficiary named in the will is the First

Security Bank of Utah, not Shriners or the University of

Utah. Shriners and the University of Utah are contingent

beneficiaries under the testamentary trust established by

decedent. Coincidentally, the terms of the will and the

trust are set out in the same instrument, but each has

independent life without regard to the other. Stated an-

other way, the will is not dependent on the trust for its

legal existence nor is the trust dependent on the will.

Shriners cannot “bootstrap” its status as a contingent

beneficiary under the trust to a beneficiary under the will

just because the terms of the will and the terms of the

trust are set out in the same instrument. Furthermore, just

because the testator of the will and the trustor or settlor

of the trust is the same person does not make the bene-

ficiary of the trust also the beneficiary “named in the

will.”

Limiting the requirements of notice to the benefici-

aries named in the will, as required by W.S. 2-7-205 and

as we have done here, has practical significance. If the

contingent beneficiaries of the trust were a large group of

persons, an intolerable burden on the administration of

the estate would develop and lead to expensive, endless

and needless litigation if notice of the sale of an estate

asset need be given to each individual contingent bene-

ficiary under the testamentary trust.

Our holding in this case is simply that a contingent

beneficiary of a testamentary trust is not entitled to indi-

vidual notice of the proposed sale of an estate asset. This

holding makes it unnecessary to address other issues

raised by Shriners.

Affirmed.

CARDINE, C.J., files a dissenting opinion in which

ROONEY, Retired J., joined.

ROONEY, Retired J., files a dissenting opinion in

which CARDINE, C.J., joined.

CARDINE, Chief Justice, dissenting, with whom

ROONEY, Justice, Retired, joins.

A10

I would reverse.

On the issue of notice, Shriners advances two argu-

ments. First, it asserts that it is one of the “beneficiaries

named in the will” as that term appears in W.S.

2-7-205(b). Second, it argues that, because of its property

interest in the estate, notice is required by the Due Pro-

cess Clause of the United States Constitution. I would

hold that appellant is correct on both counts. Shriners,

however, was a “beneficiary” named in the will, and that

alone was sufficient to require notice.

It is quite astonishing that the court concludes that

contingent beneficiaries are not beneficiaries and there-

fore not entitled to notice of disposition at private sale of

a significant asset. Even more astonishing is the sugges-

tion that a will containing trust provisions is not a will or

that trust provisions in a will are not part of the will. The

instrument involved here is titled “Last Will and Testa-

ment of Velma Rife Jones.” Within the body of the instru-

ment is established a trust in which appellant is a named

beneficiary. There is no settled law of which I am aware

that permits the court to hold that what it does not like in

a will simply is not in the will.

To complete this strange circle of result justification

is the suggestion that some policy is served by denying

notice because contingent beneficiaries may be “a large

group of persons” and notice to them would be “expen-

sive,” an “intolerable burden” and lead to “end-

iess * * * litigation.” And so for expediency, the court

approves this sale without the beneficiary, in whom title

may ultimately vest, receiving notice or having the right

to be heard. The result in this case was sale of a ranch

—————————————

All

first appraised for $1,200,000 being sold for the sum of

$820,000. Perhaps the amount received for sale of the

ranch was reasonable. But one cannot help but wonder,

why not give notice of the sale to named beneficiaries.

The Wyoming probate code does not define the term

“beneficiaries.” When construing statutes, however,

“[wlords and phrases shall be taken in their ordinary and

usual sense” and “technical words and phrases having a

peculiar and appropriate meaning in law shall be under-

stood according to their technical import.” W.S. 8-1-103.

In its ordinary and usual sense, the term “beneficiary”

means “one who receives something.” Webster’s Third

New International Dictionary (1971). In law, “benefici-

ary,” standing alone, is defined as “[o]ne who benefits

from [the] act of another.” Black’s Law Dictionary (5th ed.

1979). Shriners surely receives something and benefits

from the act of the testatrix, Velma Rife Jones. If it meets

the qualifications set forth in the will, it is entitled to a

remainder interest in the estate. In addition, Shriners is

unquestionably “named in the will.” Notice, therefore,

was required by W.S. 2-7-615 and 2-7-205(b).

ROONEY, Retired Justice, dissenting, with whom

CARDINE, C.J., joins.

I join in the dissent of Chief Justice Cardine. In

addition to that said by him, I note that this is a testamen-

tary trust. Contrary to that said in the majority opinion, it

does not have any “independent life without regard to”

the will, and it is “dependent on the will [for its legal

existence].” Appellant benefits only because of the will,

albeit through a trust established therein. As expressly set

forth in the will, the intent of the testator was to benefit

Al2

the appellant-not the trustee. Appellant was a beneficiary

named in the will as provided in W.S. 2-7-615.

It would serve no purpose to address in this dissent

the other issues presented in this case which become

pertinent once appellant is recognized to be a beneficiary

under the will. Whether or not I would find reversible

error therein is not important.

APPENDIX B

In the Matter of the ESTATE OF

Velma Rife JONES, Deceased.

SHRINERS HOSPITALS FOR CRIPPLED

CHILDREN, Appellant (Petitioner),

FIRST SECURITY BANK OF UTAH, N.A.,

Personal Representative, First Security

Bank of Rock Springs, Resident Personal

Representative; Rock Springs Grazing

Association; Lazy VD Land and Livestock;

Elza Eversole; and Lois M. Eversole,

Appellees (Respondents).

No. 88-4.

Supreme Court of Wyoming.

Nov. 15, 1989.

On Rehearing of Appeal from the District Court of

Sweetwater County; Kenneth G. Hamm, Judge.

* * *

Before CARDINE, C.J., THOMAS, MACY and GOLD-

EN, JJ., and ROONEY, J., Retired.

ORDER DENYING PETITION FOR REHEARING

AND CONFIRMING PRIOR DECISION

CARDINE, Chief Justice.

This case came on before the Court upon the Petition

for Reargument and Rehearing of Appellant, Shriners

Hospitals for Crippled Children, filed on April 5, 1989;

Appellant’s Brief in Support of Petition for Reargument

and Rehearing, filed April 5, 1989; Appellant’s Supple-

mentai Brief upon Rehearing Pursuant to the Court’s

Order Dated April 21, 1989, filed May 18, 1989; Answer of

Appellees, Rock Springs Grazing Association, Lazy VD

Land and Livestock, Elza Eversole and Lois M. Eversole

to Petition for Reargument and Rehearing of Appellant,

filed May 19, 1989; Brief on Rehearing of Appellees Rock

Springs Grazing Association, Lazy VD Land and Live-

stock, Elza Eversole and Lois M. Eversole, filed May 19,

1989; Answer and Supporting Brief on Rehearing of Ap-

pellees First Security Bank of Utah, N.A. and First Securi-

ty Bank of Rock Springs, filed May 22, 1989; and Brief of

Amicus Curiae University of Wyoming upon Rehearing,

filed May 22, 1989; and the oral argument of counsel, and

the Court, having reviewed the file and record of the

Court and the opinion of the Court in Matter of Estate of

Jones, 770 P.2d 1100 (Wyo. 1989), finds and holds that:

The primary interest of the University of Wyoming as

amicus Curiae is expressed in its statement of the issue as

follows:

“|. Whether the property interest of the remain-

derman of a charitable remainder trust is a con-

tingent interest or vested interest subject to

complete defeasance.”

The Shriners Hospitals for Crippled Children also ex-

pressed concern about its categorization as a contingent

beneficiary.

The Court is of the opinion that the prior decision of

the Court should be confirmed insofar as it is expressed

in the essence of the ratio decidendi:

“The resolution of the problem of notice does

not depend, however, upon whether Shriners

was a vested beneficiary or a contingent bene-

ficiary. It still was not a ‘beneficiary named in

the will.’ ” Matter of Estate of Jones, 770 P.2d at

1103.

The Court now is of the opinion that the description

of the Shriners Hospitals for Crippled Children and the

University of Utah as contingent beneficiaries of the tes-

tamentary trust is not a material concern with respect to

the disposition of this case. Consequently, the Court with-

draws that categorization and those portions of the prior

opinion that seem to depend upon, or discuss, the status

of Shriners Hospitals for Crippled Children and the Uni-

versity of Utah as contingent beneficiaries.

The Court understands that the requirement in the

testamentary trust that those beneficiaries qualify as or-

ganizations described in §§ 170(c) and 2055(a) of the

Internal Revenue Code is verbiage that is necessary to

assure that the trust will be treated as a charitable re-

mainder trust by the Internal Revenue Service. Conse-

quently, it would appear that the point made by the

University of Wyoming as amicus curiae that these bene-

ficiaries should be perceived as vested beneficiaries

whose interest may be defeated by the loss of their status

as a charitable organization is sound and should be re-

spected. We do not deem it necessary to se hold, how-

ever, any more than we now deem it to have been

necessary to identify Shriners Hospitals for Crippled

Children and the University of Utah as contingent bene-

ficiaries.

The crux of this case is that any beneficiary of a trust

created in a will is not a beneficiary under the will for

purposes of the notice requirements of §§ 2-7-615 and

2-7-205, W.S. 1977. We need to make no further categoriz-

ation of the status of Shriners Hospitals for Crippled

Children than to conclude that it was not a “beneficiary

under the will.”

IT, THEREFORE, IS ORDERED that the Petition for

Reargument and Rehearing of Appellant, Shriners Hospi-

tals for Crippled Children, be, and the same hereby is,

denied, and the opinion of the Court in Matter of Estate of

Jones, 770 P.2d 1100 (Wyo. 1989), is confirmed except that

is modified to withdraw therefrom any categorization of

Shriners Hospitals for Crippled Children and the Univer-

sity of Utah as contingent beneficiaries.

ROONEY, Justice, Retired.

I would have granted the petition for the reasons set

forth in my dissent and in the dissent of Chief Justice

Cardine.

APPENDIX C

(Letterhead of)

THE STATE OF WYOMING

THIRD JUDICIAL DISTRICT

August 27, 1987

Mr. Calvin E. Ragsdale Mr. Henry A. Burgess

Attorney at Law Attorney at Law

20 East Flaming Gorge Way P.O. Box 728

Green River, Wyoming Sheridan, Wyoming 82801

82935

Mr. Michael J. Finn Mr. Robert James Wyatt

Attorney at Law Attorney at Law

P.O. Box 1152 P.O. Box 728

Rock Springs, Wyoming Sheridan, Wyoming 82801

82902

Re: Estate of Velma Rife Jones

P-87-18

Gentlemen:

Section 2-7-620, W.S. 1977 provides:

“No proceedings for sale, mortgage, pledge,

lease, exchange or conveyance by a personal

representative of property belonging to the es-

tate is subject to collateral attack on account of

any irregularity in the proceedings which do not

deprive the court of jurisdiction.”

Security-First Nat. Bank of Los Angeles v. Superior

Court in and for Los Angeles County, et al., 37 P.2d 69

(Cal. 1934) seems particularly pertinent here, and I quote

at some length from it:

“The application to vacate the orders approving

the first nine accounts of the trustee was made

by W.R. Thomas, one of the nephews of the

testatrix and a remainderman under the trust

provisions and the decree of distribution. The

motion was addressed to the respondent court

sitting in probate in the matter of said estate.

The grounds of the motion were that the respec-

tive orders were void because the trustee failed

to include in its petition for settlement the

names and addresses of, and to give notice to,

the beneficiaries as required by sections 1120

and 1200 of the Probate Code and section 1629

of the Code of Civil Procedure; and on the fur-

ther ground that the petition in each instance

falsely stated that Sallie B. Wolcott was the sole

beneficiary of the trust, when, in fact, the trustee

knew that W.R. Thomas was such beneficiary

and that he resided at Houston, Texas.”

* * *

“For the purposes of this proceeding, the peti-

tioner does not dispute the fact that the remain-

dermen, as well as the cestul que trust, Sallie B.

Wolcott, were beneficiaries under the trust, and

that addresses of the beneficiaries and partic-

ularly of W.R. Thomas were alleged in the peti-

tion for the probate of the will. The respondents

contend that these facts prove conclusively the

lack of jurisdiction of the probate court to make

the several orders settling the nine accounts of

the trustee and the consequent invalidity there-

of, for the reason, so it is claimed, that the court

acquired no jurisdiction of W.R. Thomas in said

nine proceedings.”

* * *

“The question is not concluded by the undis-

puted facts. A proceeding pursuant to section

1699 of the Code of Civil Procedure, or section

1120 of the Probate Code, like other successive

proceedings in the probate and execution of a

will or the administration of an estate, is a pro-

ceeding in rem.” (Citations omitted).

* * *

“The same presumptions as to the validity of its

final orders and decrees apply as to judgments

and orders of any court of general jurisdiction.”

(Citations omitted).

* * *

“Therefore a subsequent application in the adminis-

tration of the same estate to set aside a previous

order entered in the course of probate jurisdiction

after the same has become final is a collateral attack,

and, unless the order is void on its face, it may not

on such attack be set aside.” (Citations omitted).

The Wyoming case of Hartt v. Brimmer, 287 P.2d 638,

648 (Wyo. 1955) held the failure to give a notice in a

probate proceeding was not jurisdictional. The Court

said:

“Before proceeding any further we should men-

tion the fact that we have held, though under

facts somewhat different, that such notice is not

jurisdictional. In re Lane’s Estate, 50 Wyo. 119,

58 P.2d 415, 60 P.2d 360, and cases cited. There

are, it is true, authorities to the contrary. The

question was discussed at length in In re Town-

drow’s Will, 47 N.M. 173, 138 P.2d 1001, in

which notice was given by publication but no

personal service was had as required by statute.

The court held that such personal service was not

jurisdictional and that the decree admitting the will

to probate could not be attacked collaterally. We

think we should adhere to the rule heretofore an-

nounced by us. It is more consonant with the

common law rule at which a will probated ex

parte and without any notice to the heirs was a

valid order. In re Towndrow’s Will, supra.”

And, on page 649:

“The proceeding for admitting the will to probate is

in rem. The court, as stated in the petition here-

in, recited that due notice had been given to the

parties. It then had jurisdiction in the case and its

decree cannot be attacked collaterally. In re Town-

drow’s Will, supra; In re Lane’s Estate, supra.

The situation here presents at most a defect or

irregularity in the service of the requisite no-

tite.”

As counsel notes:

“The situation in the case at bar is nearly identi-

cal to Hartt. The only difference is that the activ-

ity at issue in the case at bar is a sale of estate

property rather than admission of a will to pro-

bate. It is axiomatic that the sale of estate prop-

erty is an in rem proceeding. Thus the factual

difference between Hartt in the case at bar is of

no import.”

It is also clear that the Court had subject matter

jurisdiction inasmuch as district courts have jurisdiction

over probate matters, and also that the Court had juris-

diction over the real property and the personal represen-

tative.

Furthermore, as noted in Hartt, supra, whether the

attack is collateral or direct is immaterial. The Court said,

on page 654:

“The authorities are divided on the question as

to whether an action in equity to set aside a

judgment or an order is a direct or a collateral

attack. 31 Am. Jur. § 614, p. 206. The author of

the Annotation in L.R.A. 1918D, 470 seems in-

clined to the view that it is a direct attack. See

Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 273

P. 176, on rehearing. We need not decide the

point. We think it makes no difference which view is

taken so far as this case is concerned. The probate

proceedings involved were proceedings in rem. The

court had jurisdiction to enter the order admitting

the will to probate. There was at most a defect or

irregularity in the process. As we have seen, courts

of equity are, to say the least, ordinarily hesitant to

set aside a judgment for mere irregularity in the

process, see also 34 C.J.S., Executors and Admin-

istrators, §§ 527, 528, pp. 447, 448, note 92, and

will not do so if the attack thereon is not made

promptly and so belatedly as in the case at bar.

The effect is the same as though the attack were

collateral. See Poston v. Delfelder, supra, on re-

hearing. We do not say what should be the rule

if a case of real hardship should be presented.

We have no such case before us. We think the

result herein should be the same even if we do

not consider the probate court to be distinct

from the district court.”

It is questionable that the giving of notice to Shriners

Hospital would have made any difference whatsoever.

The original offer to buy was made April 28, 1987, a

counter-offer made April 30, 1987 and accepted May 1,

1987. The petition for authority to sell was filed May 19,

1987, the sale was confirmed May 19, 1987, and on the

same day various deeds were executed and delivered. It

was not until July 6, 1987 that the Motion for Relief was

filed by Shriners and only shortly before that that the

alleged prospective purchaser disclosed that he was will-

ing to pay a higher price for the property. Therefore, had

Shriner been told of the pending sale for $820,000.00, it

would not have had before it any other offer to consider.

The University of Utah, on July 20, 1987, joined with

Shriners’ motion, yet the executive director of the Univer-

sity, on July 23, 1987, wrote the vice-president of the First

Security Bank saying “It was wonderful news about the

selling of the Wyoming property. I appreciate you keep-

ing me informed.”

There is some suggestion in the file that possibly the

First Security Bank may have been remiss in failing to

seek out other possible buyers. If that is so, perhaps

Shriners’ best remedy is to sue the bank for damages.

I regret that I have not addressed all of the issues

presented in counsels’ excellent briefs as it is my general

custom, but I am inundated at the moment, and feel that

the above approach resolves the problem. However, I also

adopt by this reference all other legal arguments and

principles submitted by counsel for the purchasers and

the First Security Bank, in support of their position to the

extent they are applicable. Shriners’ counsel is also re-

minded that all briefs are required to be on 8 1/2 x 11

paper by Rule 403 of the Uniform Rules for the District

Courts.

Mr. Ragsdale will please prepare an order denying

the Motion, send a copy to Mr. Burgess and Mr. Finn and

the original to me for signature.

By the Court,

/s/ KENNETH G. HAMM

Kenneth G. Hamm

District Judge

KGH/cjv

November 4, 1987

Mr. Calvin E. Ragsdale Mr. Henry A. Burgess

Attorney at Law Attorney at Law

20 East Flaming Gorge Way P.O. Box 728

Green River, Wyoming Sheridan, Wyoming 82801

aaner Mr. Robert James Wyatt

Mr. Michael J. Finn Attorney at Law

Attorney at Law P.O. Box 728

P.O. Box 1152 Sheridan, Wyoming 82801

Rock Springs, Wyoming

82902

Re: Estate of Velma Rife Jones

P-87-18

Gentlemen:

The opinion I write on the above matter, dated Au-

gust 27 , 1987, was based upon a point of law. That point

of law was that the proceedings concerning the sale of the

property could not be collaterally attacked. Therefore, as

I saw it then and see it now, further discovery will not

change that point of law. Pace v. Hadley is not applicable

as far as this case is concerned.

Accordingly, movants Objections to Proposed Order

Denying Motion for Relief From Order Under Wyoming

Rules of Civil Procedure, Rule 60(b) of Shriner’s Hospi-

tals for Crippled Children are denied.

By the Court,

/s/ KENNETH G. HAMM

Kenneth G. Hamm

District Judge

KGH/cjv

APPENDIX D

U.S.C.A. Const. Amend. 14

* * *

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

* * *

TITLE 2. Wills, Decedents’ Estates and Probate Code

CHAPTER 7. Administration of Estates

ARTICLE 2. Notices

§ 2-7-202. Public auction of real or personal property;

contents.

(a) When a sale or real or personal property of a

decedent is ordered and is to be made at public auction,

notice of the time and place of sale shall be published in a

daily or weekly newspaper of general circulation in the

county in which the probate is pending and in the county

in which such property is situated once a week for three

(3) consecutive weeks next before the sale, except in the

case of perishable and other personal property likely to

depreciate in value or which will incur loss by being kept,

and as much other personal property as may be necessary

to pay the allowance made to the family of the decedent.

(b) Notice shall set forth the time and place of sale

and a description of the property offered for sale, and

may provide that any and all bids may be rejected by the

personal representative.

provided in W.S. 2-7-205.

(Laws 1979, ch. 142, § 1; 1980, ch. 54, § 1.)

TITLE 2. Wills, Decedents’ Estates and Probate Code

CHAPTER 7. Administration of Estates

ARTICLE 2. Notices

§ 2-7-205. Parties entitled to receive.

(a) A true copy of the notice required in W.S.

2-7-201 shall be mailed by ordinary United States mail,

first class, to:

(i) The surviving spouse, if any, and to all

of the heirs at law of the decedent and to all of

the beneficiaries named in the will of the dece-

dent. The mailings shall be made not later than

one (1) week after the first publication of the

notice in the newspaper; and

(ii) Each creditor of the decedent whose

identity is reasonably ascertainable by the per-

sonal representative within the time limited in

the notice to creditors. The mailing shall be

made not later than thirty (30) days prior to the

expiration of three (3) months after the first

publication of the notice in the newspaper.

(b) Unless waived in writing by the parties entitled

thereto, the notices required in W.S. 2-7-202, 2-7-203,

2-7-204, 2-7-615, 2-7-806, 2-7-807 and 2-7-811 shall be

mailed not less than ten (10) days prior to the day of

hearing, the date for filing objections, or sale, as the case

may be, to the surviving spouse, if any, and to all of the

heirs of a decedent dying intestate or to all of the bene-

ficiaries named in the will of a decedent dying testate.

requiring an order of the court shall be mailed or deliv-

ered not less than ten (10) days prior to the sale to the

surviving spouse, if any, and to the heirs of a decedent

dying intestate or to all of the beneficiaries named in the

will of a decedent dying testate.

(Laws 1979, ch. 142, § 1; 1980, ch. 54,

§ 1; 1989, ch. 114, § 1.)

TITLE 2. Wills, Decedents’ Estates and Probate Code

CHAPTER 7. Administration of Estates

ARTICLE 4. Marshalling Assets

§ 2-7-402. Title to decedent’s property; subject to ad-

ministration and payment of debts; priori-

ties.

Except as otherwise provided in this code, when a

person dies the title to his property, real and personal,

passes to the person to whom it is devised by his last will,

or in the absence of such disposition to the persons who

succeed to his estate as provided in this code. However

all of his property is subject to the possession of the

personal representative and to the control of the court for

the purposes of administration, sale or other disposition

under the provisions of law, and his property, except

homestead and other exernpt property, is chargeable with

the payment of debts and charges against his estate.

There is no priority between real and personal property,

except as provided in this code or by the will of the

decedent.

(Laws 1979, ch. 142, § 1; 1980,

ch. 54, § 1.)

TITLE 2. Wills, Decedents’ Estates and Probate Code

CHAPTER 7. Administration of Estates

ARTICLE 6. Sale and Other Disposition of Property

§ 2-7-614. Petition to sell, etc.; generally.

A petition to sell, mortgage, exchange, pledge or

lease any real or personal property shall set forth the

reasons for the petition and describe the property in-

volved. It may apply for different authority as to separate

parts of the property, or it may apply in the alternative

for authority to sell, mortgage, exchange, pledge or lease.

Whenever it is for the best interests of the estate, real and

personal property of the estate may be sold, mortgaged,

exchanged, pledged or leased as a unit.

(Laws 1979, ch. 142, § 1; 1980,

ch. 54, § 1.)

TITLE 2. Wills, Decedents’ Estates and Probate Code

CHAPTER 7. Administration of Estates

ARTICLE 6. Sale and Other Disposition of Property

§ 2-7-615. Petition to sell, etc.; notice and hearing; ex-

ception; court order.

Upon filing of the petition, the court shall fix the time

and place of hearing of the petition, and the personal

representative shall give notice of the hearing as pro-

vided in W.S. 2-7-205, but as to personal property and as

to the lease of real property not specifically devised for a

period of not to exceed one (1) year, the court may hear

the petition without notice. In those instances where no-

tice is required, the notice shall state briefly the nature of

the petition. At the hearing and upon satisfactory proof

the court may order the sale, mortgage, exchange, pledge

or lease of the property described or any part thereof at

such price and upon such terms and conditions as the

court may authorize.

(Laws 1979, ch. 142, § 1; 1980,

ch. 54, § 1.)

TITLE 2. Wills, Decedents’ Estates and Probate Code

CHAPTER 7. Administration of Estates

ARTICLE 6. Sale and Other Disposition of Property

§ 2-7-620. Collateral attacks precluded.

No proceedings for sale, mortgage, pledge, lease,

exchange or conveyance by a personal representative of

property belonging to the estate is subject to collateral

attack on account of any irregularity in the proceedings

which do not deprive the court of jurisdiction.

(Laws 1979, ch. 142, § 1; 1980,

ch. 54, § 1.)

* * *

Wyoming Rules of Appellate Procedure

Rule 5.07. Service of briefs on attorney general.

In all cases both criminal and civil, in which the state

is a party, or in which any of its property is involved, or

in which a statute, ordinance or franchise is alleged to be

unconstitutional, including criminal cases upon reserved

questions, and cases arising upon exceptions taken in a

criminal case by the prosecuting attorney, counsel shall

also serve a copy of their brief upon the attorney general.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.