Norris v. Norris

• Decision Date: 31 December 1980
• Docket Number: No. 46934-2,46934-2
• Citation: 622 P.2d 816,95 Wn.2d 124
• Parties: E. A. NORRIS, a married man, as his sole and separate property, Petitioner, v. Henry C. NORRIS and Patricia Norris, husband and wife; and Ernest H. Norris and Debi Norris, husband and wife, Respondents.
• Court: Washington Supreme Court

Page 124

95 Wn.2d 124

622 P.2d 816

E. A. NORRIS, a married man, as his sole and separate

property, Petitioner, v. Henry C. NORRIS and Patricia Norris, husband and wife; and Ernest H. Norris and Debi Norris, husband and wife, Respondents.

No. 46934-2.

Supreme Court of Washington, En Banc.

Dec. 31, 1980.

Gebhardt, Looney & Sherrick, Frank J. Gebhardt, Spokane, for petitioner.

Paine, Lowe, Coffin, Herman & O'Kelley, Gary A. Dahlke, James M. Kalamon, Spokane, for respondents.

HOROWITZ, Justice.

This case concerns a father's action to quiet title in a ranch against competing claims of his son and grandson. The plaintiff's claim is based on a community property agreement with his deceased spouse; the son's and grandson's claims on reciprocal wills executed by the plaintiff and his spouse prior to the making of the community property agreement. The trial court quieted title in the father, but the Court of Appeals, 25 Wash.App. 290, 605 P.2d 1296, reversed. For the reasons stated below, we affirm the Court of Appeals.

I.

Plaintiff E. A. Norris and his wife, Irene, owned as community property a large ranch in Adams County. E. A. and Irene Norris had no natural children, and in 1950 they adopted Henry Norris, who they had raised from childhood. Henry Norris and his wife worked the ranch owned by his parents from 1951 until the present. At first, Henry worked on the ranch for pay. In 1954, he and his father entered into a partnership for operation of the ranch. Since 1968, E. A. and Irene had lived in Ritzville. Because of a hip condition, E. A. is unable to do heavy work, and he has not worked on the ranch for many years.

In spring 1970, E. A. and Irene Norris visited their family attorney to discuss estate planning. The Norrises expressed their desire to eventually leave the ranch to their son Henry. On the advice of their attorney, who drafted the documents, the Norrises executed reciprocal wills leaving the surviving spouse a life estate in the ranch, with a remainder in most of the ranch to Henry and a remainder in the rest of the ranch to Henry's son Ernie.

Shortly after executing their wills, the Norrises visited with their friends, the Armstrongs. The four friends discussed the Norrises' new wills and the Norrises mentioned their desire to leave the ranch to Henry. The Armstrongs told the Norrises about community property agreements, stating that it was not necessary to go through probate if a community property agreement was executed and that no inheritance taxes would be assessed at the death of the spouse. The Norrises expressed their interest in such an agreement and the Armstrongs, neither of whom was trained in the law, obtained and filled in the blanks on a form community property agreement for the Norrises. Without consulting an attorney, the Norrises executed the agreement before a notary public and it was recorded on June 10, 1970, some two months after execution of the reciprocal wills. The wills were not explicitly revoked in the community property agreement. E. A.'s sister, however, testified at trial that Irene told her that she was satisfied with the agreement's disposition of their community property.

On August 7, 1970, Irene died. In late September 1970, E. A. and Henry visited the family lawyer. E. A. informed the attorney that probate was unnecessary because of the community property agreement. The lawyer testified that he told E. A. of the adverse tax consequences of using the community property agreement and that E. A. then indicated to him that he would "go with the will;" that E. A. preferred to have the will probated and disregard the community property agreement. ¹ The family lawyer testified that he believed the community property agreement was void ab initio because it was based on the spouses' mutual misunderstanding of its consequences. E. A., on the other hand, testified that he assumed the lawyer knew he wanted to own the property outright and that he therefore continued to assume that the actions taken thenceforth were consistent with that desire. The trial court found that E. A. did not understand the consequences of probate and that he thought he owned all interest in the property. Finding of fact No. 15.

On the basis of his understanding that Irene's will was to be probated, the family lawyer drew up the appropriate papers. E. A. was appointed as personal representative of Irene's estate, and in that capacity he signed a number of documents, including an inventory, notice to creditors, final account and petition for distribution in conformity with the will. E. A. testified that he did not read the papers before signing them, although he also signed verifications that he had read and understood the documents. The family attorney testified that E. A. read all documents carefully. Because of his hip condition, which prevents him from climbing stairs, E. A. was not actually present at any of the court proceedings involved in the probate of Irene's estate.

In 1972, Irene's estate was distributed pursuant to the petition for distribution. The estate was closed in January 1974. No appeal was taken from the probate decree. Henry Norris knew that under his mother's will he had a remainder interest in the ranch. Mr. and Mrs. Armstrong, the couple who had helped the Norrises prepare their community property agreement, discussed the probate with E. A. Both testified that E. A. told them that the agreement could not be used because of adverse tax consequences due to the size of the Norrises' holdings.

After Irene's death, Henry continued to work the ranch and made certain improvements. His father transferred as gifts to him much of the equipment on the ranch. Henry asked his son and his son's wife to leave their jobs in Spokane and move onto the ranch, which they did in 1974. Both Henry and Ernie testified that they took their actions because of the remainder interests in the ranch.

In 1971, E. A. had met Kathleen Hallstrom, a former real estate agent 30 years his junior. In 1975 they were married. Shortly thereafter, the family was discussing ownership and rental of the ranch. E. A. asked for an increase in rental payments and Kathleen informed Henry that the community property agreement of 1970 gave E. A. complete ownership of the ranch. E. A. concurred in her statements.

The original community property agreement, which was retained by E. A. after his discussions with the family lawyer, had not been found. The document was proved at trial by conformed recorded copy.

In 1977, E. A. began this action to quiet title to the ranch. After a trial before a judge, the Superior Court for Adams County entered judgment for plaintiff quieting title to the ranch in E. A. as his separate property. The Court of Appeals, Division Three, reversed the trial court, holding that the plaintiff's acceptance of benefits by probating the will constituted a disclaimer of the community property agreement.

This case raises questions regarding the validity of the probate of Irene's will and whether that proceeding now prevents her spouse from claiming under their community property agreement. The determination of whether E. A. can now claim under the community property agreement focuses on two general issues. First, we examine whether the earlier probate proceeding could have any effect at all in light of the existence of a community property agreement signed by the decedent. Second, if the probate proceeding was jurisdictionally justified, we must determine whether it had the effect of "cutting off" any rights under the community property agreement either because its effects cannot be challenged as res judicata or because his actions constituted an election of the will's provisions by E. A.

II.

PROBATE JURISDICTION. The plaintiff argues that the probate proceedings based on Irene's will can have no effect because there was no property subject to the probate jurisdiction of the Superior Court. Because the community property agreement vests all community property in the surviving spouse at death, the plaintiff contends that there was no property for the probate proceedings to act upon. In re Estate of Wittman, 58 Wash.2d 841, 365 P.2d 17 (1961). Thus, E. A. argues, the purported distribution to his son and grandson of the remainder interest would be void.

We find this argument unpersuasive because the existence of a community property agreement does not necessarily prevent probate of the estate of the spouse dying first.

Contrary to the trial court's reasoning in its memorandum opinion, the community property agreement does not prevent administration of the estate of a decedent who owned only community property subject to the agreement. The cases cited by plaintiff to support this contention involved procedural jurisdictional defects. In addition, the decedents in those cases had no claim to title in the property purportedly passed in their estates. See Mezere v. Flory, 26 Wash.2d 274, 173 P.2d 776 (1946) (decedent had no interest in realty that could have been passed to devisees; earlier probate through which decedent purported to take title was procedurally faulty because minor children were not represented by guardian and no proof of publication of notice of hearing was on file); Parr v. Davison, 146 Wash. 354, 262 P. 959 (1928) (decedent with only life estate had purported to pass fee simple in realty to devisees; true owner entered no appearance and had no personal notice of probate proceedings).

The fact that community property passes to the surviving spouse at death does not prevent administration on the community property in the deceased spouse's estate. The property remains community in nature until the spouse's death, and the possibility of administration is explicitly acknowledged in RCW 11.02.070:

The whole of the community property shall be subject to probate administration for all purposes of this title ...

The courts of this state have, in the past, examined the effect...