Francon v. Cox

• Decision Date: 03 May 1951
• Docket Number: No. 31395,31395
• Citation: 231 P.2d 265,38 Wn.2d 530
• Parties: FRANCON, v. COX et al.
• Court: Washington Supreme Court

Page 530

38 Wn.2d 530

231 P.2d 265

FRANCON, v. COX et al.

No. 31395.

Supreme Court of Washington, Department 1.

May 3, 1951.

Lycette, Diamond & Sylvester, Seattle, Herman Howe, Seattle, of counsel, for appellant.

Croson, Johnson & Wheelon, Seattle, for respondents.

DONWORTH, Justice.

Plaintiff, Betty Whitmore Francom (erroneously spelled Francon in the record), brought this action to recover from her stepmother an undivided one-half interest in certain described real and personal property and to obtain an accounting of her share of the income therefrom. The action was tried to the court sitting without a jury. At the close of all of the evidence the trial court, having denied a motion for a judgment notwithstanding the oral decision of the court, or, in the alternative for a new trial, entered a decree dismissing the action. Plaintiff has appealed from this decree.

In this opinion Georganna Cox (formerly Georganna Whitmore) will be referred to as though she were the sole respondent.

Respondent and John Fenton Whitmore were married July 10, 1935. On November 14, 1943, Mr. Whitmore (herein referred to as the decedent) died, intestate, in Seattle, Washington. Respondent, decedent's widow, was appointed administratrix of the estate. The assets of the estate consisted of a five-room house located in Seattle, which was appraised at $4,800, and personal effects and household goods, appraised at $800. All property involved in this case was community property of decedent and respondent.

In respondent's petition for her appointment as administratrix, she alleged that she was the sole heir of decedent and, in her final report and petition for distribution, she stated 'That the above named decedent, John Fenton Whitmore, left surviving him no issue entitled to share in his estate or any part thereof, and that he left surviving him as his only heir at law, Georganna Whitmore [Cox], his surviving wife, and that she is entitled to receive full and final distribution of all of the assets of said estate which was the community property of said decedent and his said surviving wife.'

It is not denied that respondent gave proper notice to the creditors of the estate and later published notice of the time and place of the hearing on her final report and petition for distribution, in accordance with statutory requirements.

On August 24, 1944, a decree of distribution was entered and all property of the estate of John Fenton Whitmore was distributed to respondent as community property. During the administration of the estate of decedent, respondent did not ask for an award in lieu of homestead or a family allowance.

Decedent had been previously married to Isabell Kendall Whitmore in 1919. An interlocutory decree of divorce was granted the first Mrs. Whitmore in Utah on March 4, 1920, and the final decree of divorce was entered on November 29, 1920. Appellant, the only issue of decedent's first marriage, was born August 21, 1920 at Nephi, Utah.

Respondent testified that she was introduced to appellant by decedent in May, 1943, when they were in Salt Lake City visiting one of decedent's sisters. It was at that time that respondent first learned that decedent had been previously married. The record in this case shows, however, that appellant had written letters to decedent as early as 1941 and had received letters from him in which he referred to their relationship as that of father and daughter. Respondent testified that she knew nothing of this correspondence until the letters were shown to her in the offices of appellant's attorneys in 1948. As a result of this revelation, respondent was under a doctor's care for two years.

Respondent testified as follows with respect to her one meeting with appellant:

'Q. And were you introduced to Betty Whitmore Francom at that time by your husband? A. Yes. He winked at me at the time. He looked at me and gave me a wink and introduced me.

'Q. And how did he introduce you to her? Did he say, 'This is my daughter Betty,' or something of that kind? A. I don't remember.

'Q. You don't remember? A. I don't remember just how, you know, just how it was done, but it was that it was his daughter, and then he winked at the time.'

The testimony of appellant with reference to the same meeting was as follows:

'Q. And at the time that you were introduced to her [respondent], who was present? A. My aunt, Mrs. Edna Harris, Mr. Whitmore [decedent] and Mrs. Whitmore, and my baby.

'Q. There was nobody else there? A. No.

'Q. How did you happen to go there? A. Well, I was out and when I returned my mother told me that my father had called and that he wanted to see me, he was here in Salt Lake, and he left me a number to call, and so I called and he made an appointment for my aunt and my baby and me to come down, for whoever I--he said he wanted to see me and the baby, and so I went down.

'Q. How long did you and your father and your aunt and Mrs. Cox visit at that time? A. Oh, I'd say two and a half hours, maybe three altogether.

'Q. Were you introduced to Mrs. Whitmore as Mr. Whitmore's daughter? A. Well, I can't remember just exactly what he said, but that was the impression I got, that she knew that I was his daughter.

'Q. Was that discussed during the conversation? A. Well, he referred to my baby as 'my grandchild', and my aunt said, 'How does it seem to have a big daughter,' or something, to him. I don't know whether Mrs. Whitmore was in the room at the time, but I remember that's what my aunt said to him.

'Q. Was she in the room when he was talking about his grandchild? A. Yes.'

Respondent telephoned decedent's one brother and four sisters in Salt Lake City informing them of his death within fifteen minutes after he had died. Appellant, who was then living at Nephi, Utah, was informed of the death by one of her aunts, but was unable to attend the funeral in Seattle because her infant daughter was ill.

Appellant testified that she first learned of the probate of her father's estate in the fall of 1945, but that she did not consult an attorney until shortly before the present suit was filed in 1948.

Respondent's reason for not including appellant as one of the heirs in the probate proceeding was stated in her direct examination as follows:

'Q. Mrs. Cox, you were appointed Administratrix of your husband's estate, that is your husband John Fenton Whitmore, after his death, is that correct? A. Yes, sir.

'Q. At that time you filed a petition for letters of administration and alleged that you were the only heir? A. That's right.

'Q. Did you at that time know that the plaintiff in this case claimed to be an heir of Mr. Whitmore? A. No.

'Q. Did you at that time believe the plaintiff to be a child of your former husband, Mr. Whitmore? A. No.

'Q. Did you ever communicate with her? A. No.

'Q. Did you ever write her a letter? A. No.

'Q. Did your husband ever tell you whether or not she was his child? A. He always said it was his wife's child, not his.

'Q. Did you believe that? A. Yes, because I was taught by my father that when a husband told me anything it was the truth.'

It was for this reason, also, that she did not personally contact appellant and give her an opportunity to prove her relationship and right to share in the estate. It does not appear that respondent knew appellant's address but it is certain that she could have easily procured it by inquiry among decedent's relatives.

In considering the problems presented by this case, it is necessary to have in mind precisely what issues were presented by the pleadings.

The complaint, after alleging the death of Mr. Whitmore, leaving real and personal property in King county, and the administration of his estate by respondent who had knowledge of the fact that appellant was decedent's daughter and knew her address, stated:

'IX

'That the defendant, Georganna Cox, fraudulently and with intent to deceive the Court and in violation of her oath of office as administratrix of said estate, advised the Probate Court of King County for the State of Washington, that she, the said defendant and administratrix, was the sole heir of the deceased and that the deceased had no children, which was not true and known to be untrue by the defendant at the time of making said statements under oath to the court; that the defendant prevented the plaintiff from having her right to her father's property submitted to, or considered and allowed by the Court.

'X

'That on August 24, 1944, as a result of the fraud perpetrated by the defendant on the plaintiff and on the court in concealing the fact of the death of her father from the plaintiff, and deliberately preventing the plaintiff from obtaining any notice of the probate of the estate, said defendant caused the Probate Court to distribute all of said property to herself, in an attempt to deprive the plaintiff of her property and to gain said property for the defendant; that said wrongful action of said defendant prevented the plaintiff from having an opportunity of advising the court of the true facts and the fraud perpetrated upon the court by the defendant.'

Respondent's answer denied the essential allegations of the complaint except the allegations concerning the proceedings had in the administration of the estate and contained two affirmative defenses.

The first defense was res judicata. The proceedings in the probate court were described and it was asserted that the decree of distribution entered therein was a final and conclusive adjudication of the matter set forth in the complaint.

The second defense was estoppel. The failure of appellant to appear in the probate proceedings was alleged to have induced respondent to believe that she was decedent's sole heir and therefore respondent had claimed no allowance in lieu of homestead, no family allowance, no administratrix fee, and had paid certain creditors and expenses of administration out of her personal funds. For this reason, it was...