Barringer v. Gunderson
| Decision Date | 18 May 1965 |
| Docket Number | Nos. 4773,s. 4773 |
| Citation | 402 P.2d 470,81 Nev. 288 |
| Parties | Robert E. BARRINGER, Frances B. Hawkins, as Executrix of the Estate of L. O. Hawkins, aka Leslie O. Hawkins, aka Leslie Oliver Hawkins, Deceased, Howard W. Cannon, Mary A. Barringer and Laura Helen Root, Appellants, v. E. M. GUNDERSON, Guardian ad Litem of Carlita Ray, an Infant, Ida Angelot Ray, Tennys Mortensen, as Administratrix of the Estate of Truman Nye, Deceased, and Wayne R. Millington, Respondents. Tennys MORTENSEN, as Administratrix of the Estate of Truman Nye, Deceased, and Wayne R. Millington, Appellants, v. E. M. GUNDERSON, Guardian ad Litem of Carlita Ray, an Infant, Ida Angelot Ray, Robert E. Barringer, Frances B. Hawkins, as Executrix of the Estate of L. O. Hawkins, aka Leslie O. Hawkins, aka Leslie Oliver Hawkins, Deceased, Howard W. Cannon, Mary A. Barringer and Laura Helen Root, Respondents. E. M. GUNDERSON, Guardian and Litem of Carlita Ray, an Infant, Appellant, v. Robert E. BARRINGER, Frances B. Hawkins, as Executrix of the Estate of L. O. Hawkins, aka Leslie O. Hawkins, aka Leslie Oliver Hawkins, Deceased, Howard W. Cannon, Mary A. Barringer, Laura Helen Root, Ida Angelot Ray, Tennys Mortensen as Administratrix of the Estate of Truman Nye, Deceased, and Wayne R. Millington, Respondents. to 4775. |
| Court | Nevada Supreme Court |
Hawkins, Cannon & Hawkins, Las Vegas, for Robert E. Barringer, Frances B. Hawkins, as executrix of the estate of L. O. Hawkins, Howard W. Cannon, Mary A. Barringer, and Laura Helen Root.
E. M. Gunderson, Las Vegas, for E. M. Gunderson, guardian ad litem of Carlita Ray.
Vargas, Dillon, Bartlett & Dixon, Reno, for Ida Angelot Ray.
Myron E. Leavitt, Law Vegas, for Tennys Mortensen and Wayne R. Millington.
These three appeals, which, although they have some points of law in common, for the most part raise different questions of law, were for convenience consolidated for argument. They were separately and elaborately briefed and separate counsel appeared for the respective appellants, and respondents.
The history of this matter appears in the case of Gunderson v. Barringer, 76 Nev. 133, 350 P.2d 397. It appears therefrom that after the will of Carl Ray, deceased, was admitted to probate, Barringer filed a petition in the estate proceedings claiming one third of the estate as a pretermitted heir. That petition was granted and this decision was sustained on appeal. In re Ray's Estate, 69 Nev. 204, 245 P.2d 990. Thereafter, Ida Angelot Ray, the widow of Carl Ray, commenced an independent action for the specific performance of an antenuptial agreement under which the decedent agreed to devise certain property to her in trust. This contract provided that the decedent would make a will wherein he would bequeath all his property to a trustee with a provision that his widow would receive one half the net proceeds of the trust estate. The agreement further provided that the provisions thereof would be in lieu of any other claim against decedent's estate. The decedent did execute his will in compliance with said antenuptial agreement, and in addition provided that the remaining one half of the net proceeds of the trust was to go to Carlita Ray, the minor child of decedent and Ida Angelot Ray. This contract was held valid. Barringer v. Ray, 72 Nev. 172, 298 P.2d 933.
During the administration of the estate and pursuant to the decision in the case of In re Ray's Estate, supra, a one-third interest in the Professional Building in Las Vegas (the chief asset of the estate in Nevada) was conveyed by the estate to Barringer. Thereafter, upon final distribution of the estate, the remaining two-thirds interest in said land passed in trust to the trustees named in the will.
It was the obvious intention of the testator that all his estate (except for certain minor bequests) was to be distributed to the trustees named in his will in trust for his widow and minor child, who were to receive in equal shares the net proceeds therefrom all consistent with the covenants contained in the antenuptial agreement. The fact that Barringer would be awarded one third of the estate before the commencement of the trust was not contemplated by the testator at the time he executed his will, nor was Mrs. Ray's antenuptial agreement brought to the attention of the court when it ordered distribution to Barringer. The foregoing presents for determination the question whether Barringer is entitled to retain one third of the entire estate which was distributed to him as aforesaid or whether he is entitled as a pretermitted heir to share only in that portion of the estate which the decedent could without restriction dispose of by will.
The decedent because of the antenuptial agreement was legally empowered to dispose of only one half of his estate by will and the proceeds from the other half contractually belonged to his widow. The first half he was free to dispose of as he saw fit and he made his minor daughter the beneficiary of this half. As a pretermitted heir, under the laws of intestate succession, Barringer would be entitled to one third of that half of the estate which was not limited by Mrs. Ray's antenuptial agreement.
An amended complaint for declaratory judgment was filed in the loawr court, in which the foregoing facts are alleged, which sought a declaration of the rights and interest held in the Professional Building by each of the parties named herein.
In Ray v. Barringer, 73 Nev. 212, 314 P.2d 378, this court stated: 'Because of unusual developments in the probate proceedings, the interests of the minor quite clearly demand attention and a determination of her rights under present circumstances should be had.'
Barringer and his privies claim no interest in the trust estate, but they do claim the one-third interest in the Professional Building which was distributed to Barringer as aforesaid. In Gunderson v. Barringer, 76 Nev. 133, 350 P.2d 397, we stated that if the interest of Barringer and his privies in said building was improperly acquired through a mistake of fact, an action to determine such matter would be proper. This is the obvious purpose of the present action, which is now involved in appeal No. 4773, Barringer et al. v. Gunderson et al.
After a trial in the court below the court made findings that because of the antenuptial agreement only one half of the Professional Building should have been included in the inventory of the probate proceedings of the estate of Carl Ray, deceased; that therefore Barringer should have received only one third of the one half of the property subject to the probate proceedings, to wit, one third of the one half of such property, or a one-sixth interest in the Professional Building. The lower court stated in paragraph 9 of its findings that the court (Judge McNamee) in ordering distribution to Barringer of a one-third interest in the Professional Building 'acted on a state of facts then known by it at the time of the hearing and ordered distribution of a one-third interest in the estate of Carl Ray, deceased, to be distributed to Robert E. Barringer.' Pursuant to said finding the trial court concluded that Barringer and his privies were entitled to only a one-sixth interest in the Professional Building and that therefore by receiving one third thereof, hold one sixth in trust for the benefit of the trust estate and must account to the trustees for one sixth of the rents and profits received from the said Professional Building. It is this part of the judgment that Barringer and his privies seek to have reversed by the appeal in Case No. 4773.
The antenuptial agreement under which Ida Angelot Ray claims an interest in the Professional Building provides: 'That the first party [Carl Ray] shall make and keep in existence a valid will, wherein and whereby all of his property will be bequeathed to a trustee and said Will shall provide that the second party [Ida Angelot] shall receive one-half (1/2) of the net proceeds of the said trust estate, upon the condition that the second party shall have lived with first party as his wife until the date of his death and during said time has been a loyal, devoted wife to him.'
By its findings, conclusions, and judgment the trial court ordered distributed to Ida Angelot Ray forthwith a one-half interest in the Professional Building. It is from this part of the judgment that Gunderson, as guardian of Carlita Ray, has appealed in Case No. 4775 and he seeks a reversal because he maintains that the provisions of the antenuptial agreement quoted above give Ida Angelot Ray no corpus of the estate, but only one half of the net proceeds of the trust estate and only for the duration of the trust.
The will of Carl Ray provides that Truman Nye, the nephew of Carl Ray, receive the sum of $100 per month for and during the term of the trust created by said will. The term of such trust was fixed in the will at 20 years. In the trial below the court determined that this bequest was to Truman Nye for his lifetime only and terminated upon his death and that therefore Tennys Mortensen, the administratrix of Truman Nye, deceased, was not entitled to any payments after the death of Truman Nye. It is this part of the judgment that Tennys Mortensen in Case No. 4774 seeks to have reversed on appeal.
The court below in dealing with the claim of Barringer that he was entitled as a pretermitted heir to a full one-third interest in the Professional Building in Las Vegas (the main Nevada asset of the Carl Ray estate) despite the fact, as later developed, that the testator was so limited by contract that he had only a one-half interest therein subject to his testamentary disposition, first assayed the situation as follows:
'During the course of this trial testimony was sought to be admitted from two attorneys who discussed the will with the testator during his lifetime. One of those attorneys, Paul Angelillo was also originally the executor of...
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