Olsen v. Roberts, 32426

• Decision Date: 13 July 1953
• Docket Number: No. 32426,32426
• Citation: 42 Wn.2d 862,259 P.2d 418
• Court: Washington Supreme Court
• Parties: OLSEN, v. ROBERTS.

Page 862

42 Wn.2d 862

259 P.2d 418

OLSEN, v. ROBERTS.

No. 32426.

Supreme Court of Washington, Department 1.

July 13, 1953.

Rehearing Denied Oct. 9, 1953.

Venables, Ballinger & Clark, Seattle, for appellant.

Ryan, Askren & Mathewson, Seattle, for respondent.

MALLERY, Justice.

A demurrer was sustained to plaintiff's amended complaint, and the action, after failure to plead over, was dismissed. The plaintiff appeals.

The amended complaint alleges that plaintiff and Frederick William Olsen were married in 1914; that an interlocutory decree of divorce was entered in King county in 1941; that, in 1951, defendant Helen Roberts was appointed administratrix of the estate of the now deceased Frederick William Olsen; and

'That in said probate proceedings the plaintiff filed a petition to be awarded her share of the marital community property which was included in said probate proceedings as property of said decedent who was the former husband of the plaintiff, and plaintiff petitioned therein to remove from said estate and the inventory property therein listed a fair and equitable share thereof, and that the same be distributed to plaintiff as her community share of property, which the decedent had wrongfully and fraudulently concealed from her, and which had not been brought before the Court in the divorce action hereinafter mentioned between plaintiff and said decedent, and which property was unknown to plaintiff or within the contemplation or consideration of the plaintiff and the decedent, or in any manner disposed of by the Interlocutory Order or Decree of Divorce hereinafter mentioned. * * *

'That this action is brought to recover one-half of the marital community property of the parties, plaintiff and defendant, in said divorce action which they had accumulated and owned during their marriage or the property acquired from the proceeds or exchange thereof or that is held in the estate of said decedent that was obtained from said marital community property, which was not disclosed or the values or extent thereof disclosed by the decedent, and which was fraudulently concealed by him at the time of making said purported property settlement and stipulation concerning the marital community assets of the plaintiff and said decedent in said divorce action. That said property herein referred to and which was not disclosed or was not disclosed as to true values or as to the extent thereof, and which is in the estate of the said decedent, and in which the plaintiff herein has an undivided marital community interest, and which, except for the false representations and concealment of and by the decedent, would have been equitably and equally divided between the plaintiff and the said decedent, now consists of the following: * * *

'Wherefore, plaintiff prays for judgment herein against the defendant for her community interest in the property, listed and contained in the estate in probate of Frederick William Olsen, deceased, and for an accounting of the proceeds and accumulations of the property of the marital community of the plaintiff and said decedent, which were fraudulently concealed or not disclosed as to value or amount or contained in the settlement and division of the property between the plaintiff and said decedent; and that an accounting be had, and the court render judgment herein, equitably and fairly dividing the community property of the plaintiff and said decedent, and for plaintiff's costs and disbursements herein, and for such further relief as may be deemed just and equitable in the premises.'

These allegations state a cause of action under the...