Lundy's Estate, In re

• Decision Date: 26 June 1957
• Docket Number: 8451,Nos. 8450,s. 8450
• Citation: 312 P.2d 1028,79 Idaho 185
• Parties: Matter of the ESTATE of Daniel J. LUNDY, Deceased. Joe M. LUNDY, William M. Lundy, and Ann Nelson, Plaintiffs-Appellants, v. Mary Jane LUNDY, Administratrix, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1028

312 P.2d 1028

79 Idaho 185

Matter of the ESTATE of Daniel J. LUNDY, Deceased.

Joe M. LUNDY, William M. Lundy, and Ann Nelson, Plaintiffs-Appellants, v. Mary Jane LUNDY, Administratrix, Defendant-Respondent.

Nos. 8450, 8451.

Supreme Court of Idaho.

June 26, 1957.

H. J. Felton, Lewiston, for appellants.

Morgan & Morgan, Lewiston, for respondent.

TAYLOR, Justice.

Daniel J. Lundy died intestate April 13, 1952. April 23, 1952, respondent, Mary Jane Lundy, widow of deceased, filed petition for letters of administration. Her petition recites that she had previously, on April 18th, been appointed special administratrix.

The appellants are two sons and a daughter of deceased from a prior marriage. On May 3, 1952, appellant, William Lundy, filed objections to the appointment of respondent; alleged that the deceased had left a will and prayed that it be admitted to probate. After a hearing and some delay the court entered its order rejecting the probate of the purported will and appointed respondent administratrix February 26, 1953. In the meantime, on May 26, 1952, the court had entered its order directing payment to respondent of the sum of $100 per month as a family allowance for her support, and that such payments begin with the month of May, 1952, and continue until the further order of the court.

Inventory and appraisement was filed July 31, 1953, fixing the appraised value of the estate at $15,831.83. August 26, 1953, respondent petitioned the court to set aside a probate homestead. August 31, 1953, appellants filed objection to the inventory, alleging that the property, inventoried as community property, was the separate property of the deceased. Appellants also filed objection to the petition to set aside a homestead, alleging that the property which respondent sought to have set apart for that purpose was the separate property of the deceased, and that the widow had waived any homestead right she may have had therein.

The claim that the property listed was separate property of the deceased and that respondent had waived her homestead right is based upon a quitclaim deed, executed by respondent as grantor and delivered to the deceased as grantee, dated July 13, 1949, and recorded July 23, 1949; and upon a quitclaim deed, from respondent as grantor to the deceased, dated July 10 1950, which was not recorded; and upon a written property settlement agreement entered into by respondent and deceased July 10, 1950. By this latter instrument the property of the parties was divided, respondent receiving certain personal property, and the deceased receiving the same real estate, described in the two quitclaim deeds, and certain personal property. The quitclaim deed of July 10, 1950, was executed and delivered pursuant to the agreement. The agreement recites that irreconcilable differences have arisen between the parties and that the first party (respondent) contemplates proceedings for divorce, and that the agreement is made for the purpose of determining and settling their property rights and liabilities. The agreement contains the usual provision for mutual release of all rights and claims by each party against the other, past or future, and that in the event of the death of either party, the survivor agrees not to claim any part of the property of the other, but that such property shall go to the heirs of the deceased free of any claim by the survivor.

Respondent filed an answer to the objections in which she alleged that she and decedent had been husband and wife for ten years; that the property inventoried was acquired during the marriage; that the quitclaim deed of July 13, 1949, was void for the reason that it was executed and delivered by her by reason of duress, coercion, and undue influence exercised upon her by deceased and that it was totally without consideration. The duress and undue influence is alleged to have arisen out of cruel treatment of respondent by the deceased during the latter part of 1948 and the first part of 1949. She alleges that because of his treatment of her, she was on the point of a stroke or breakdown; that her doctor had recommended that she go away for a vacation. She desired $100 from deceased to enable her to go to visit at the home of her son; that deceased refused the request unless she would give him the deed; that she gave the deed because of her necessity and his insistence and that in return for it he gave her $100 of community funds.

As to the deed and property settlement agreement of July 10, 1950, she alleges those instruments were executed in pursuance of an agreement between the parties to discontinue the marriage relation and the obtaining of a divorce by respondent; that on the same day the agreement and deed were executed, a divorce complaint was prepared by the same attorney, signed by respondent and filed the next day, July 11th; that as a part of the consideration for the agreement the deceased gave respondent his promissory note for $800, payable to her in installments of $100 each month, commencing August 15, 1950; that $100 was paid by deceased thereon; that on or about August 17, 1950, the respondent and decedent effected reconciliation and resumed cohabitation and agreed with each other that the documents that had been signed on July 10th would be cancelled and of no further effect; that pursuant to this agreement of reconciliation respondent dismissed her divorce action August 17, 1950, and that she and decedent lived together as husband and wife from the date of reconciliation until his death.

At the opening of the hearing on the objections to the inventory appellants objected to the introduction of any evidence on the ground that the probate court lacked jurisdiction to consider the issues raised by the objections. On October 26, 1954, the court entered its findings, conclusions, and order overruling and dismissing the objections to the inventory.

As to family allowance, the court found that no further order had been made subsequent to the order of May 26, 1952; that the estate was solvent and that respondent's need for such allowance continued; and that the allowance be continued during the progress of the settlement of the estate, or until the further order of the court. No appeal was taken from either the order of May 26, 1952, or the order of October 26, 1954, providing for the family allowance. These being appealable orders, § 17-201, I.C., subsection 4, and no appeal having been taken therefrom, they became final. Short v. Thompson, 56 Idaho 361, 55 P.2d 163.

Upon the petition and request of appellants, the probate court on November 15, 1954, ordered respondent to render an accounting of her administration within five days. The accounting was filed November 18, 1954, and on the same day respondent filed her petition for authority to sell property of the estate in order to pay its obligations.

November 27, 1954, appellants filed objections to the accounting and to the petition for authority to sell property of the estate, and a petition on their part for final distribution to them of all the property of the estate as the sole heirs of the deceased. After hearing, the probate court on December 1, 1954, entered its order authorizing the sale of property; an order setting apart to respondent as surviving spouse certain exempt personal property; an order approving the account, and directing the payment of claims and expenses as soon as money for that purpose is available. This last order recites that an order was entered November 9, 1954, setting apart certain property as a homestead for respondent. The order of November 9th does not appear in the record.

December 10, 1954, appellants filed notice of appeal to the district court, describing the orders appealed from as follows:

'1. Decree Setting Aside A Probate Homestead, dated November 9, 1954;

'2. Order Approving Accounting, and the orders made therewith, designated Order Authorizing Sale of Personal Property and Order Setting Apart Exempt Personal Property, all made and dated December 1, 1954;

'3. Orders dated the 1st day of December, 1954, refusing the appellants' Petition for Distribution.'

January 19, 1955, respondent filed in the probate court her final account and petition for distribution. This petition, in addition to setting out the property and condition of the estate, alleges in greater detail the duress, coercion and undue influence by which the deed of July 13, 1949, was executed; also, the property settlement agreement, quitclaim deed, promissory note and divorce complaint of July 10th; the subsequent agreement of reconciliation, and the resumption of the marital relationship between respondent and deceased. She also alleged her efforts and preparation to sell property of the estate so that she could pay the obligations and file her final account by December 20th, the date to which the court had previously continued the hearing of appellants' petition to require such accounting; that by reason of the appeal from the order authorizing the sale, the sale negotiated by respondent could not be concluded; and that, although the estate could not be distributed, the respondent requested the probate court to hear her final account and determine all other questions raised by appellants which could be determined at that stage of the proceedings and in view of the pending appeal; and that she be allowed to refrain from compliance with any orders entered upon such determinations until the same became final.

May 6, 1955, appellants filed their objections to the final account and petition for distribution in which they allege that the issues presented were pending on appeal in the district court, and that the final account is untimely and improper. The probate court overruled these objections, proceeded to hear the petition and on May 23, 1955, entered its findings, conclusions and order settling the final account, decreeing that all property of the estate was...