In re Parrott's Estate

• Decision Date: 11 January 1922
• Docket Number: 2512.
• Citation: 203 P. 258,45 Nev. 318
• Parties: IN RE PARROTT'S ESTATE.
• Court: Nevada Supreme Court

203 P. 258

45 Nev. 318

IN RE PARROTT'S ESTATE.

No. 2512.

Supreme Court of Nevada

January 11, 1922

Appeal from District Court, Washoe County; James A. Callahan, Judge.

In the matter of the estate of Matt A. Parrott, deceased. Objection by Lucy Peggy Parrott Arzaga to a petition for distribution of the estate among the beneficiaries under the will. From a judgment dismissing the objection, objector appeals. Reversed and remanded.

Sanders C.J., dissenting.

W. D Jones and N. J. Barry, both of Reno, for appellant.

Hoyt Norcross, Thatcher, Woodburn & Henley, of Reno, for respondents executors and Nevada Rebecca Lodge No. 7.

S. H. Rosenthal, of Reno, for respondent Wagstaff.

H. V. Morehouse, of Reno, for respondents Mills and Bateman.

John S. Orr, of Reno, for respondents Goodman, Cerego, Stoutenger, McCarthy, and Barlow.

DUCKER J.

Appellant claims to be a daughter of the deceased, Matt A. Parrott, and an Indian woman and entitled to the sole distribution of his estate. She filed her objection to a petition for distribution by the executors of the estate, praying that the major portion of the estate be distributed in equal shares to the Rebecca Lodge No. 7 of Reno, Washoe county, Nev., Mercy Wagstaff, a sister of the deceased, the children and grandchildren of Mrs. Jane Goodman, a deceased sister of said Matt A. Parrott, and to the children of another deceased sister, Helen Bateman, in accordance with the terms of the last will and testament of the deceased, Matt A. Parrott. The objection reads:

"That the said Lucy Peggy Parrott Arzaga is the daughter of the said Matt A. Parrott, deceased, and a Washoe Indian woman named Peggy; that said Lucy Peggy Parrott Arzaga was born in the Indian camp just below the old county hospital on the south side of the Truckee river, in the eastern part of the city of Reno, county of Washoe, state of Nevada, about 40 years ago, and is now, and for some years prior hereto has been continuously, and in fact during almost the entire period of her life has been a resident of the county of Washoe, state of Nevada.

That said Matt A. Parrott, in the county of Washoe, state of Nevada, and elsewhere, many times, publicly acknowledged that he was the father of the said Lucy Peggy Parrott Arzaga, and from the time of the birth of said Lucy Peggy Parrott Arzaga contributed food and clothing and sustenance and maintenance to the said Lucy Peggy Parrott Arzaga, and sent the said Lucy Peggy Parrott Arzaga to the Stewart Indian School near the city of Carson, in the state of Nevada, as the child of the said Matt A. Parrott and paid the expenses of the said Lucy Peggy Parrott Arzaga at said school and her support and maintenance during the time she attended said school, and on many and divers occasions in the state of Nevada publicly admitted to divers and sundry persons that he was the father of said Lucy Peggy Parrott Arzaga, and that she, the said Lucy Peggy Parrott Arzaga, was his child, and that he intended to raise, maintain, educate, and support the said Lucy Peggy Parrott Arzaga, all with the consent of the mother of said Lucy Peggy Parrott Arzaga and before the said Lucy Peggy Parrott Arzaga had reached the age of 12 years.

That the said Matt A. Parrott died in the city of Reno, county of Washoe, state of Nevada, on the 22d day of November, 1919, and left estate therein as particularly set forth and described in said petition for distribution, and that the said Matt A. Parrott was at the time of his death, and for more than 50 years prior thereto had been, a resident of the county of Washoe, state of Nevada.

That the said Matt A. Parrott left a will and testament, dated October 24, 1919, a true copy of which said will and testament is hereto attached, marked Exhibit A, and made a part hereof, and that said will and testament was, by an order of the above-entitled court, duly and regularly admitted to probate in the above-entitled court on the 11th day of December, 1919.

That the said Matt A. Parrott omitted in said will to provide for or to make any provision concerning the said Lucy Peggy Parrott Arzaga, and that it does not appear from the will or otherwise that such omission was intentional.

Said Lucy Peggy Parrott Arzaga further alleges that the said Matt A. Parrott left no surviving wife or child or children other than the said Lucy Peggy Parrott Arzaga, and that there are no relatives, heirs, or persons whomsoever who are entitled to take the property of the said estate in preference to the said Lucy Peggy Parrott Arzaga.

That the said Lucy Peggy Parrott Arzaga is a married woman, the wife of one Manuel Arzaga, but that the said Argaza, husband of said Lucy Peggy Parrott Arzaga, has no right, title, interest, or claim of, in, or to the property of the said Matt A. Parrott, deceased, and that this proceeding concerns the sole and separate property of the said Lucy Peggy Parrott Arzaga.

Wherefore said Lucy Peggy Parrott Arzaga prays that after the payment of all of the expenses of the administration and all of the just debts of estate of the said Matt A. Parrott, deceased, all of the rest, remainder, and residue of said estate be distributed to the said Lucy Peggy Parrott Arzaga, and for such other and further relief as to the court may seem meet and proper in the premises."

The copy of the will, so far as its contents have any bearing upon the questions to be determined on appeal, contains in paragraph 2 the following declaration:

"I do hereby declare that I have never been married and that I have no children."

After several minor devises are declared, the will concludes:

"6. I hereby direct that all of the rest, remainder and residue of my estate, real, personal and mixed, of every nature, kind and description wherever situate and however held, which is or may be subject to my testamentary disposition at the time of my death, shall be divided into four equal parts, and I hereby give, devise and bequeath one of said parts of my

residuary estate to Nevada Rebecca Lodge No. 7 of the city of Reno, county of Washoe, state of Nevada; one of said parts to my sister, Mrs. Jane Goodman of Wayne county, New York; one of said parts to my sister Mrs. Ellen or Helen Bateman of Bedfordshire, England; and one of said parts to my sister Mercy Wagstaff of Colmworth, Bedfordshire, England.

7. I hereby declare that I have not heard directly from any of my said sisters for several years, and it is my will, in the event that any of my said sisters shall be deceased at the date hereof or at the date of my death, that the portion of my estate which is hereby devised to such sister, or sisters, shall be distributed to the lineal descendants of such sister, or sisters, per stirpes and not per capita; but if any of my said sisters shall have died without lineal descendants, or in the event my executors shall be unable to ascertain the whereabouts of any of my sisters, or if dead, their lineal descendants within two years from the date of my death, it is my will that the share of any such sister, or sisters shall be divided equally between my other sisters or their lineal descendants per stirpes and not per capita.

8. I hereby nominate, constitute and appoint H. H. Kennedy and Lee Hawcroft, both of Reno, Washoe county, Nevada, as executors of this my last will and testament."

The objection was demurred to by all of the devisees entitled to receive the major portion of the estate under the terms of the will, and a demurrer to the amended objection was filed by the executors. Motions to make the objection more specific and certain were also made.

By stipulation of the attorneys of the various parties the demurrer and the motion to make more definite and certain of the executors, directed to the amended objection, were considered as the demurrer and motion of all of the devisees above mentioned.

Collectively and in substance the demurrers are on the ground that the amended objection does not state facts sufficient to establish any right in the said Lucy Peggy Parrott Arzaga to receive any part or portion of said estate, in that it shows upon its face that her omission from the will was intentional, and contains no facts upon which it can be ascertained by the court that said Matt A. Parrott at any time publicly acknowledged said Lucy Peggy Parrott Arzaga as his daughter. It is unnecessary to state specifically the other objections raised.

The trial court sustained the demurrers on the ground that the amended objection was insufficient to show an unintentional omission of the said Lucy from the will, and overruled the demurrers and motions in other respects. The amended objection was dismissed, and from the order of dismissal said Lucy Peggy Parrott Arzaga appeals.

For convenience, the devisees and executors opposing appellant's claim will be referred to as respondents.

This appeal presents two questions for determination, namely: Are the facts stated in appellant's objection sufficient to show her adoption by the testator, Matt A. Parrott? and, Did he intentionally omit her from the provisions of his will?

As to the first question, counsel for appellant contends that it cannot be considered on this appeal. Ordinarily the appellate court will not consider any errors that may have been committed against a respondent. Maher v. Swift, 14 Nev. 324; Moresi v. Swift, 15 Nev. 215; Dennis v. Caughlin, 22 Nev. 447, 41 P. 768, 29 L. R. A. 731, 58 Am. St. Rep. 761. It will look only to errors assigned by the appellant.

The rule is otherwise, however, if the complaint (or, as in this case, the objection) is so defective that it would not support any judgment in favor of appellant. South San Bernardino Land & Improvement Co. v. San Bernardino National Bank, 127 Cal. 245, 59 P. 609....