Barringer v. Ray
| Decision Date | 14 June 1956 |
| Docket Number | No. 3902,3902 |
| Citation | 72 Nev. 172,298 P.2d 933 |
| Parties | Robert E. BARRINGER, Intervening Defendant, First National Bank of Nevada, Administrator with the Will Annexed, and Carlita Nancy Ray, a Minor Defendant, by Jeanne S. Houssels, Guardian ad litem, Appellants, v. Ida Angelot RAY, Respondent. |
| Court | Nevada Supreme Court |
Hawkins & Cannon, Las Vegas, for appellant Barringer.
Ham & Ham, Las Vegas, for appellant First Nat. Bank of Nevada.
Jeanne S. Houssels, Las Vegas, guardian ad litem and attorney for Carlita Nancy Ray, a minor defendant.
Harry E. Claiborne, Las Vegas, Nevada, for respondent.
The main question presented in this appeal is whether the respondent Ida Angelot Ray, as surviving wife of Carl Ray, deceased, was bound by her alleged election to take under the will of the testator to the end that she was estopped from seeking specific performance of an antenuptial agreement. The learned district judge rejected such defenses of election and estoppel in pais, and we agree with his conclusion. Certain other assignments of error are likewise disposed of in this opinion.
On April 19, 1946, an antenuptial agreement was entered into between the parties by which the husband agreed to make certain disposition of his property in favor of his wife upon his death. Following the marriage of the parties a will was executed by the husband which, upon his death, was admitted to probate upon application of the wife. Appellant Barringer, claiming as pretermitted heir of the decedent, successfully asserted his right to share in the estate. In re Estate of Ray (Petition of Barringer), 69 Nev. 204, 245 P.2d 990. The wife then brought this action to enforce the antenuptial agreement. Appellants contend that her actions in support of the will constituted an election to take under the will and that she is precluded by that election from now asserting a right to the estate under the agreement.
The preamble of the antenuptial agreement of April 19, 1946 read in part as follows: 'Whereas, a marriage is about to be solemnized between the parties hereto; and Whereas, in anticipation of such marriage said parties desire by an antenuptial agreement to fix and determine the rights of each of them in any and all property of every nature and description and wheresoever located, that either of them may own at the time of such marriage, or may acquire thereafter, and, particularly, to have the said first party agree to make, and make, and the second party to agree to accept, and accept, a pecuniary provision for the second party's benefit, in lieu and full discharge and satisfaction of any and all rights or claim of dower or any claims to community property, and of any and all other rights, claims or interest in or to any and all of the first party's property, whether real, personal or mixed, and wherever situated, that she may have as wife or widow, but for such provision and the execution and delivery of this agreement, and the full performance thereof by said first party, his heirs, executors, administrators or assigns, whether the foregoing rights, claims, titles and interest will or would inure to said second party by statute, common law, or otherwise; * * *.'
The agreement recited that it was made in consideration of the foregoing and of the marriage about to be solemnized and of the subsequent terms and covenants set forth. Paragraph 1 of the first covenant read as follows:
[72 Nev. 176] Paragraph 3 provided that the foregoing provisions should be 'in lieu and in bar of any and all right or claim of dower, in and to any and all of the lands, tenements and hereditaments of said second party, wheresoever the same may be located, or to which the second party might be or become entitled after consummation of her marriage to said first party, as wife or widow, and in lieu of any right which the second party might have to apply to the court for a family allowance or support money from the estate of the first party in the event of his death * * *, and also in lieu of any claim to any of the first party's property of whatsoever nature and wherever located.'
Carl Ray thereafter executed a formal and carefully drawn will, the copy whereof appearing in the record occupies some 25 folios. Provision Fourth contains bequests aggregating $6,000. Provisions Fifth and Sixth contain further minor bequests.
Provision Seventh of the well gives, devises and bequeaths all of the rest, residue and remainder of Ray's estate, of every kind or nature and wherever situate, to three trustees, of whom respondent is one, for the uses, purposes, powers and trusts thereafter specified and containing a particular description of four separate parcels of real property, parcel three being in the State of Wyoming and parcel four being in the State of California. Under section 1 of provision Seventh one half of the net income (but not less than $500 a month) is payable monthly to the testator's widow for the entire term of the trust. Out of the other half of the income, $100 a month is payable to the testator's daughter Carlita Nancy Ray, $100 a month to the testator's nephew Truman Nye (a like $100 monthly payment to a boy intended to be adopted, which provision never became effective) and, at the end of each calendar year, if there be additional net income undistributed, and in the discretion of the trustees, one half thereof to the surviving wife and one half to the daughter (alternate provisions for a portion to go to the boy, if adopted, not coming into being, as there was no such adopted son). The testator declared the primary purpose of the trust to be 'to provide for my said wife and adopted child or children'. Alternate provisions were made in the event of the death of the testator's wife and in the event of the death of the testator's daughter. The term of the trust is declared to be twenty years, with instructions for maintaining intact certain of the parcels of real property.
Provision Eighth of the will provides for distribution of the corpus and accomulations, on termination of the trust, one half to the wife and one half to the daughter (alternate provision for the adopted son never becoming effective).
Provision Tenth bequeaths $1 only, in place of all other bequests, devises and interests to any devisee, legatee, beneficiary or other person who would be entitled to share in the extate who directly or indirectly contests the will or seeks to impair or invalidate any of its provisions or who conspires or cooperates with any person attempting such things or who settles or compromises in or out of court with any such contestant or who fails to oppose such proceedings or endeavors to succeed to any part of the estate otherwise than through the will. Provision Thirteenth appoints the wife Ida Angelot Ray and Paul Angelillo executors. Provision Fifteenth requires the executors to defend any contest to the probate of the will.
On petition of the named executors, appellant being one, the will was admitted to probate in Nevada, California and Wyoming. The estate in Wyoming was closed by distribution to the trustees for the purposes mentioned in the trust. The California estate was likewise administered under the provisions of the will.
Counsel for the respective appellants filed separate briefs and orally argued the case on behalf of the respective appellants. Their most seriously urged assignment of error is that the respondent, in accepting the benefits of the will and in electing to take thereunder, is estopped from seeking specific performance of the antenuptial contract. We might say, as did the court in Willard v. Shekell, 236 Mich. 197, 210 N.W. 260, 262: 'Counsel have furnished a wealth of authorities * * * dealing with the question of election of remedies, all of which have been examined, but as we have reached the conclusion that the remedies pursued, or attempted to be pursued, were not inconsistent, it will...
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...State Highway Admin. v. Greiner, 83 Md.App. 621, 577 A.2d 363, 372 (Ct.Spec.App.1990). 12. 432 N.W.2d at 587. 13. Barringer v. Ray, 72 Nev. 172, 178, 298 P.2d 933, 936 (1956) (quoting Sackett v. Farmers' State Bank, 209 Iowa 487, 228 N.W. 51, 52 (Iowa 14. Bankers Trust Co. v. Pacific Employ......
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