Gunderson v. Barringer

• Decision Date: 23 March 1960
• Docket Number: No. 4200,4200
• Citation: 76 Nev. 133,350 P.2d 397
• Court: Nevada Supreme Court
• Parties: E. M. GUNDERSON, substituted for Russell Taylor, as guardian of the person and estate of Carlita Ray, an infant, Appellant, v. Robert E. BARRINGER, L. O. Hawkins and Howard W. Cannon; Ida Angelot Ray, Carl Reed, and Ralph Steiner, as trustees of the estate of Carl Ray, deceased, Respondents.

Page 397

350 P.2d 397

76 Nev. 133

E. M. GUNDERSON, substituted for Russell Taylor, as guardian of the person and estate of Carlita Ray, an infant, Appellant, v. Robert E. BARRINGER, L. O. Hawkins and Howard W. Cannon; Ida Angelot Ray, Carl Reed, and Ralph Steiner, as trustees of the estate of Carl Ray deceased, Respondents.

No. 4200.

Supreme Court of Nevada.

March 23, 1960.

E. M. Gunderson, Las Vegas, for appellant.

Hawkins & Cannon, Las Vegas, for respondents.

McNAMEE, Chief Justice.

Appellant filed in the court below a complaint for declaratory judgment. Appeal is from the order dismissing the action as to defendants Barringer, Hawkins, and Cannon.

Matters pertaining to the estate of Carl Ray, deceased, have had the consideration of this court over the past nine years. The parties to the present action all are interested in said estate or in property that was a part of said estate at the time of decedent's death. As a result of our several decisions certain rights of the parties in and to certain of the assets have been adjudicated. Appellant has undertaken to allege in said complaint our several decisions, and seeks a declaration of the present rights of the various parties to this action as a result of these decisions.

It becomes necessary to give a historical outline of the prior proceedings pertaining to this estate.

The will of Carl Ray, deceased, was admitted to probate in Department 1 of the Eighth Judicial District Court in and for the County of Clark. Thereafter respondent Barringer filed a petition in that court seeking a share of the estate as a pretermitted heir. The petition was granted and the court decreed that Barringer was entitled to one third of the estate, after certain deductions. 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 in Department 2 of said court for the specific performance of an antenuptial agreement under which the decedent, Carl Ray, agreed to devise certain property to her in trust. This contract provided that the decedent would make a will wherein all of his property would be bequeathed to a trustee with a provision that his said widow would receive one half the net proceeds of the trust estate. The agreement further provided that the provisions of the agreement would be in lieu of any other claim against decedent's estate which she might have by virtue of their marriage. The decedent executed his will substantially 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 Nancy Ray, the minor child of decedent and his wife, Ida Angelot Ray. The trial court upheld the validity of this contract and ordered its enforcement. Its judgment was affirmed on appeal. Barringer v. Ray, 72 Nev. 172, 298 P.2d 933.

In the due course of 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 certain land in Las Vegas, Nevada (comprising the chief asset of said 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.

As must be apparent from the foregoing, it was the intention of the testator that all of his estate (except for certain minor bequests) was to be distributed to the trustee or trustees named in his will in trust for his widow and minor child who were to receive the net proceeds therefrom in equal portions, all consistent with the covenants contained in the antenuptial agreement. The existence of Barringer and the fact that he would be awarded one third...