Bailey v. Gates

• Decision Date: 05 August 1930
• Docket Number: 2869.
• Citation: 290 P. 411,52 Nev. 432,53 Nev. 477
• Parties: BAILEY et al. v. GATES.
• Court: Nevada Supreme Court

290 P. 411

52 Nev. 432, 53 Nev. 477

BAILEY et al. v. GATES.

No. 2869.

Supreme Court of Nevada

August 5, 1930

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Proceeding for the revocation of the probate of the will of Alexander Pollock, deceased, instituted by Helen Bailey and others against May Frances Gates, as executrix and devisee under the will of Alexander Pollock, deceased. From a judgment in favor of defendant, sustaining defendant's demurrer, plaintiffs appeal.

Frame & Raffetto, of Reno, for appellants.

Melvin E. Jepson, of Reno, for respondent.

COLEMAN J.

This is a proceeding to set aside an order admitting a will to probate. The complaint alleges that Alexander Pollock died in Washoe county, Nev., on September 18, 1925, leaving as heirs at law certain brothers and sisters and the plaintiffs, who are children of William Pollock, a deceased brother; that Alexander Pollock left no wife, children, mother, or father surviving him; that deceased left an estate of the approximate value of $80,000; that he left a purported will in which he bequeathed his entire estate to May Frances Gates; that in due time a petition for the admission of said will to probate was filed in the proper court, but that said petition did not state the names, ages, and places of residence of these plaintiffs. The complaint further avers "that no notice whatsoever was given to plaintiffs either actual, constructive or otherwise, of said hearing (meaning the hearing on the petition to probate said will) and that it was not until long after the admission of said will to probate that plaintiffs, who were at the time non-residents of the State of Nevada, and residents of the State of Massachusetts, heard of said proceedings." The complaint also avers that at the time of making of said so-called will by the deceased he was of unsound mind and that the execution of the same was the result of undue influence. The complaint contains certain other allegations not necessary here to mention.

To the said complaint a general demurrer was filed on the grounds that the same does not state sufficient facts to constitute a cause of action. This demurrer was sustained, and, the plaintiffs electing not to amend, judgment was entered in favor of the defendants, from which an appeal was taken.

Two points are urged as grounds for reversal: First, that the petition for the probate of the will or the deceased did not state the names, ages, and residences of the plaintiffs; and second, that the complaint herein alleges that no notice was given to plaintiffs of the hearing upon said petition, both being urged as jurisdictional defects in said probate proceedings.

Considering the last point first, it is clear that no valid order can be entered for the probate of a will without the giving of notice to the heirs. In re Hegarty's Estate, 45 Nev. 145, 199 P. 81. Section 5860, Rev. Laws, relative to the probate of wills provides, inter alia, that any person named as executor or executrix in a will, who accepts the trust, may present to the district court a petition for the probating thereof, setting forth in such petition the facts necessary to give the court jurisdiction, and, when known, the names, ages, and residence of the heirs and devisees of the deceased. Section 5866 provides that, when such petition is filed with the clerk of the court, such clerk shall publish notice in some newspaper, if there is one printed in the county; if not, then by posting such notice in three public places in the county, stating in such notice the filing of such petition, the object, and designating a time for proving such will, which shall not be less than ten nor more than twenty days.

Is there sufficient allegation in the complaint of the failure to give notice? We have quoted the allegation of the complaint which is the basis of the contention that no notice was given.

We think there is an utter failure to allege that no notice was given. The so-called allegation is a naked conclusion. As said in 14 Ency. Pl. & Pr. at page 1071: "In averring notice, the usual rule prevails that facts, and not conclusions of law, should be pleaded. A general averment that the defendant had notice is not sufficient."

The same reasoning applies to a general averment that a party was not given notice.

In Klovdahl v. Town of Springfield, 81 Or. 168, 158 P. 668, 669, wherein the court had under consideration the allegation that notice was not given as required by the town charter, citing many authorities to support its conclusion, it said: "Good pleading requires that, instead of saying that 'notice was not given as required by the charter of said town,' the facts relating to that matter be averred, leaving the court to draw the legal conclusion of whether or not the requirements of the charter have been fulfilled."

See, also, McDaniel v. Thomas, 162 Ga. 592, 133 S.E. 624; Stephenson v. Supreme Council, etc. (C. C.) 127 F. 379; People v. Banks, 272 Ill. 502, 112 N.E. 269; Rapelye v. Bailey, 3 Conn. 438, 8 Am. Dec. 199; Lawson et al. v. Townes, 2 Ala. 373; Heitkemper v. Schmeer, 130 Or. 644, 275 P. 55.

As to the contention that the petition praying for the probate of the will did not state the names, ages, and residence of the heirs and devisees of the deceased, we need only say that the statute requires this to be done when this information is known to the...