In re Halle's Estate

• Decision Date: 08 January 1948
• Docket Number: 30255.
• Citation: 29 Wn.2d 624,188 P.2d 684
• Parties: In re HALLE'S ESTATE. v. HALLE. SAUNDERS
• Court: Washington Supreme Court

188 P.2d 684

29 Wn.2d 624

In re HALLE'S ESTATE.

SAUNDERS v. HALLE.

No. 30255.

Supreme Court of Washington

January 8, 1948

Department 2

Proceeding in the matter of the estate of Nellie Halle, deceased wherein Glenn T. Saunders filed a motion asking that order approving final account of Louis Halle, as executor of the estate of Nellie Halle, deceased, and decree of distribution be vacated and set aside and that in its place a decree of distribution be entered awarding to movant a one-half interest in property belonging to marital community composed of Louis Halle and Nellie Halle at time of Nellie Halle's death. From an order granting the motion, Louis Halle individually and as executor of the estate of Nellie Halle deceased, appeals.

Reversed and cause remanded with directions.

Appeal from Superior Court, Spokane County; Louis F. Bunge, Judge.

Hamblen Gilbert & Brooke, of Spokane, for appellant.

Dibblee, Clausen & Gemmill, Richard S. Munter and H. E. T. Herman, all of Spokane, for respondent.

JEFFERS Justice.

This is an appeal by Louis Halle, as executor of the estate of Nellie Halle, deceased, and individually, from an order made and entered by the superior court for Spokane county in cause No. 36779, on January 11, 1947. The order appealed from will be more specifically referred to later in this opinion.

Louis Halle and his deceased wife, Nellie, were married in Chicago, Illinois, April 19, 1911. At the time of the marriage, Mrs. Halle had a son by a former marriage, namely, Clarence Saunders, aged nine years. Mr. and Mrs. Halle moved to Spokane, Washington, in 1913, bringing with them Clarence Saunders, who continued to live with his mother and appellant until his marriage in 1923.

Glenn Saunders, respondent in this action, is the only child of Clarence Saunders and his wife, Bernice Saunders. Glenn was born November 20, 1924. Clarence continued to visit his mother after his marriage, and there is no doubt but that she knew of the birth of Glenn Saunders.

On August 9, 1923, Nellie Halle made a will, which was introduced in evidence as respondent's exhibit 1, and, in so far as material here, provided:

'Second: I hereby give, devise and bequeath to my son Clarence Saunders, one-half of my interest in and to all community property owned by mayself and my husband Louis Halle at the time of my decease--that is, the said Clarence Saunders shall receive one-fourth of all community property owned by myself and my husband Louis Halle at the time of my decease.

'I hereby give to each and every child who may be hereafter born to me the sum of One Dollar.

'Third: I hereby give, divise and bequeath to my husband Louis Halle all of the rest, residue and remainder of my estate of every kind and description and wheresoever the same may be situated.'

In the above will, Louis Halle was nominated as executor without bond.

Clarence Saunders died August 20, 1928, leaving surviving him as his only heirs his son, Glenn Saunders, and his wife, Bernice Saunders.

On May 8, 1934, which it will be noted was after the death of Clarence Saunders, Nellie Halle made another will, which did not contain the specific provision relative to her son Clarence which was contained in the will of August 9, 1923, nor did it mention by name or make any specific provision for either Clarence Saunders or his son, Glenn Saunders. The will of May 8, 1934, did contain the following provisions:

'Second: I hereby declare that I have no children surviving, and I hereby give to each and every child who may be hereafter born to me the sum of One Dollar.

'Third: I hereby give, devise and bequeath to my husband Louis Halle all of the rest, residue and remainder of my estate, both real and personal and wheresoever situated, to be his absolutely.'

By paragraph four Louis Halle was nominated as sole executor of the will, without bond.

Paragraph five states: 'I hereby revoke all former wills made by me.'

Nellie Halle died in Spokane county on September 4, 1942. On September 9, 1942, Louis Halle filed a petition in the superior court for Spokane county, asking that the last will and testiment of Nellie Halle, dated May 8, 1934, be admitted to probate. In this petition the following statement was made:

'That the names, ages and residence of the heirs and devisees of the decedent, so far as known to the petitioner are as follows:

Name Louis Halle

Address Spokane, Wash.

Relationship Husband

Age Legal

Estimated value of separate property, $ None

Estimated value of community property, $ 27,000.' The will of May 8, 1934, was duly admitted to probate on September 9, 1942, and Louis Halle was appointed executor of such will. Thereafter the estate was appraised by appraisers appointed by the court, and notice to creditors was published, as required by law. Final account and petition for distribution was filed April 21, 1943, wherein Louis Halle asked that all the property be distributed to him under the terms of the will. Notice of a hearing on the final account and petition for distribution was published and posted, as required by law, and on the day named in the notice, to wit, May 19, 1943, an order was entered approving the final account and decreeing the distribution to Louis Halle of all the property owned by Nellie Halle at the time of her death. It may be stated here that no mention of Glenn Saunders, respondent herein, was made in the probate proceedings.

On October 1, 1946, Glenn Saunders filed a motion asking that the order approving the final account of Louis Halle, as executor of the estate of Nellie Halle, deceased, and the decree of distribution made and entered on May 19, 1943, be vacated and set aside, and that in its place a decree of distribution be entered awarding to him, Glenn Saunders, a ohe-half interest in and to all the real and personal property belonging to the marital community composed of Louis Halle and Nellie Halle at the time of the death of Nellie Halle. The motion states that the relief sought is based upon the following grounds:

'1. Irregularities in obtaining the order approving final account and decree of distribution.

'2. Fraud practiced by the said Louis Halle as the executor of the estate of Nellie Halle in obtaining the order approving final account and decree of distribution.

'3. Error in the order approving final account and decree of distribution shown by the said applicant, Glenn T. Saunders, within twelve months after arriving at full legal age, the said Glenn T. Saunders now being 21 years of age, having been born November 20, 1924.'

The above motion is signed by counsel for Glenn Saunders.

In support of the motion is an affidavit of Paul A. Clausen, one of the attorneys for Glenn Saunders, and in this affidavit appears a further ground for vacating the order of distribution, namely that Nellie Halle failed to name or provide for Glenn Saunders in her will of May 8, 1934, and also failed to name or provide for Charence Saunders, father of Glenn Saunders, in the will.

A show cause order was issued, directed to Louis Halle, as executor of the estate and individually, ordering him to appear and show cause why the motion should not be granted. Louis Halle demurred to the show cause order and supporting affidavit. The demurrer was overruled, and appellant then answered the show cause order. By his answer, Louis Halle admitted certain facts relative to the making of the will by Nellie Halle and its admission to probate, and other facts appearing from the files in the probate proceeding. He denied all allegations of irregularities and fraud, and denied that Glenn Saunders was entitled to any part of his grandmother's estate.

The matter came on for hearing Before the court on December 17, 1946. The only witness called was Louis Halle. The entire file showing the proceedings in the Nellie Halle estate up to the time of the filing of the motion to vacate, was admitted in evidence as petitioner's exhibit 3. Included in the statement of facts, as well as in the transcript of the proceedings, in the Nellie Halle estate, are the affidavit of Paul Clausen, hereinBefore referred to, the affidavit of Glenn Saunders in support of his motion and in reply to the answer of Louis Halle, the answer of Louis Halle to the motion, and the reply of Louis Halle to the affidavit of Glenn Saunders.

At the conclusion of the hearing, and after rendering an oral decision, the court, on January 11, 1947, made and entered findings of fact, conclusions of law and an order. We desire to quote finding No. 4: 'That the court finds that neither applicant, Glenn T. Saunders, nor his deceased father, the deceased son of the above mentioned Nellie Halle, deceased, were named or provided for in the aforesaid Last Will and Testament of the said Nellie Halle, deceased, and that the said Nellie Halle, deceased, did die intestate as to the said Clarence Saunders, the deceased father of the said applicant, Glenn T. Saunders, and did leave as her only descendant and as the only descendent of her dead son, Clarence Saunders, the applicant, Glenn T. Saunders.'

The court concluded:

'1. That Glenn T. Saunders, the descendant of Nellie Halle, deceased, and of her deceased son, Clarence Saunders, is entitled to such portion of the estate of Nellie Halle, deceased, real and personal, as if the said Nellie Halle had died intestate.

'2. That the said applicant Glenn T. Saunders, is entitled to have, and the court should set aside the order approving final account and decree of distribution in the above entitled court and to have set over to him one-half of all the real property owned by the marital community composed of Louis Halle and Nellie Halle, husband and wife, and one-half of the personal property owned by the aforesaid...