Firsching's Estate, Matter of, 8899

• Decision Date: 15 May 1978
• Docket Number: No. 8899,8899
• Parties: In the Matter of the ESTATE of Robert A. FIRSCHING, Deceased. Helen R. FIRSCHING and Alfred S. Howes, Ancillary Executors of the Estate of Robert A. Firsching, Deceased, Alfred S. Howes, trustee under the testamentary trust of the Will of Robert A. Firsching, Deceased, Helen R. Firsching, beneficiary under the testamentary trust of the Will of Robert A. Firsching, Deceased, Appellants, v. Kay FERRARA, Executrix of the Estate of Frank N. Ferrara, Deceased, Respondent.
• Court: Nevada Supreme Court

Page 321

578 P.2d 321

94 Nev. 252

In the Matter of the ESTATE of Robert A. FIRSCHING, Deceased.

Helen R. FIRSCHING and Alfred S. Howes, Ancillary Executors

of the Estate of Robert A. Firsching, Deceased, Alfred S.

Howes, trustee under the testamentary trust of the Will of

Robert A. Firsching, Deceased, Helen R. Firsching,

beneficiary under the testamentary trust of the Will of

Robert A. Firsching, Deceased, Appellants, v. Kay FERRARA, Executrix of the Estate of Frank N. Ferrara, Deceased, Respondent.

No. 8899.

Supreme Court of Nevada.

May 15, 1978.

Rehearing Denied June 13, 1978.

[94 Nev. 253] Beckley, Singleton, De Lanoy, Jemison & Reid, Chartered, and W. Bruce Beckley, Las Vegas, for appellants.

Gabe Hoffenberg, Las Vegas, for respondent.

OPINION

PER CURIAM:

This litigation between the personal representatives of Robert A. Firsching and Frank N. Ferrara, both deceased, involves a written agreement entered into by the deceased parties on June 19, 1963. That agreement concerned two parcels of real property in Nye County and, after reciting the legal description of the property, provided: "In consideration of a waiver of any and all commissions by Ferrara Realty, and other services, Robert A. Firsching purchaser and owner of above agrees to pay one half of all net profit to Frank Ferrara of Ferrara Realty."

Although no profits had yet been realized, Ferrara's Estate filed a creditor's claim in the Firsching Estate proceedings on April 5, 1971, seeking an accounting of profits. That claim was rejected and Ferrara's Estate subsequently brought an action for an accounting and judgment in the amount determined to be due or, alternatively, for a constructive trust or equitable lien to be placed upon the property in the amount determined to be due. The Firsching Estate moved for summary judgment. The district court ordered partial summary judgment, but stated It would be simple to hold that Plaintiff's (Ferrara's Estate's) suit was not yet ripe and grant Defendants (Firsching's Estate) Motion for Summary Judgment without qualification but this may frustrate the filing and determination of claims under the procedure for administration of estates.

The Motion for Summary Judgment is granted save and except Plaintiff is granted leave to file an amended complaint on or before September 9, 1974, if Plaintiff's research and review show a valid cause of action for declaratory judgment so Plaintiff's cause may be pursued if and when it becomes ripe. A contingent claim is contemplated in Estate proceedings.

The Ferrara Estate failed to file an amended complaint, summary judgment was granted, and the cause of action dismissed with prejudice. The judgment was appealed and affirmed by this court on January 23, 1976. See Ferrara v. Firsching, 92 Nev. 38, 544 P.2d 1198 (1976).

However, before that decision was filed, the Ferrara Estate commenced the present action by filing an objection to the Firsching Estate's petition for final settlement and distribution, contending it had a contingent claim for which allowance should be made pursuant to NRS 150.250. ¹ The district court denied final settlement and...