Pitzer v. Union Bank of California

• Decision Date: 31 December 1998
• Docket Number: No. 21355-9-II,21355-9-II
• Citation: 93 Wn.App. 421,969 P.2d 113
• Court: Washington Court of Appeals
• Parties: Marie PITZER, Carolann Guilford, James Allotta, Appellants, v. UNION BANK OF CALIFORNIA (formerly known as the Bank of California), a foreign corporation, as Personal Representative of the Estate of Rose Magrini, Respondent. and In the Matter of the Estate of Rose Magrini, Deceased, In the Matter of the Estate of Frank Magrini, Deceased.

Page 421

93 Wn.App. 421

969 P.2d 113

Marie PITZER, Carolann Guilford, James Allotta, Appellants, v. UNION BANK OF CALIFORNIA (formerly known as the Bank of California), a foreign corporation, as Personal Representative of the Estate of Rose Magrini, Respondent and In the Matter of the Estate of Rose Magrini, Deceased In the Matter of the Estate of Frank Magrini, Deceased.

No. 21355-9-II.

Court of Appeals of Washington Division 2.

Dec. 31, 1998.

Franklin W. Shoichet, Prince, Kelley, Marshall & Coombs, P.S., Seattle, Craig E. Coombs, Prince, Kelley, Marshall & Coombs, P.S., Bellevue, for Appellants.

Kendall M. Jennings, Paul R. Willett, McGavick Graves, Tacoma, for Respondent.

ARMSTRONG, J.

Marie Pitzer, Carolann Guilford, and James Allotta (the claimants) seek to reopen the estate of Frank Magrini, who died in 1965. They also seek to impose a trust on assets in the estate of Rose Magrini, Frank's widow, who died in 1995. The claimants allege that they are the illegitimate children of Frank Magrini; that they have rights to a portion of Frank's estate under the pretermitted heir statute; that Rose, the personal representative of Frank's estate, did not give them notice of their possible claims; and that, as a result, Rose received assets from Frank's estate the claimants should have received. At the time of Frank's death, RCW 11.04.080 ¹ allowed an illegitimate child to inherit from his or her father only if the child could produce a written, signed acknowledgment of paternity by the father. The claimants concede they have no such acknowledgment, but contend that former RCW 11.04.080 is unconstitutional and that they qualify as Frank's heirs if they can prove paternity other than by a written acknowledgment. We hold that Rose, if she knew the claimants were Frank's children, had a duty to give them notice of the probate of Frank's estate, that former RCW 11.04.080 is unconstitutional, and that Rose may have been unjustly enriched by her failure to give notice. Accordingly, we reverse summary judgment in favor of the estates.

FACTS

Anna Allotta gave birth to the claimants during her marriage to Fisher Allotta. Fisher's sister, Rose, was married to Frank Magrini. Frank and Rose had no children.

When Frank died in September 1965, he left his entire estate to his wife, Rose. The will named Fisher Allotta as a contingent beneficiary of a trust fund, and "my wife's nephew, James," as the beneficiary of the trust fund "if there are assets remaining" at the time of Fisher Allotta's death. The will also provided for the distribution of the residual estate among certain "nieces and nephews of my wife and myself." The list included the claimants.

Frank's will named Rose and his attorney as co-executors of the estate. The executors filed a declaration of completion of administration in March 1974, and the estate automatically closed 30 days later.

Rose died in December 1995. Union Bank of California is the personal representative of her estate.

In April 1996, the claimants petitioned to reopen Frank's estate, claiming that they qualified as heirs under the pretermitted child statute and that Rose and her attorney breached their duties as personal representatives by failing to give the claimants notice of the probate of Frank's estate. In support of the action, the claimants filed their own declarations and declarations from an aunt and two cousins who said that they had known about the claimants' paternity for many years but had been sworn to secrecy. It was not until Rose died that they shared the "secret" with each other. See ER 804(b)(4). ²

In her declaration, Carolann described visiting Rose in the hospita during Rose's "last illness" when Rose was "in and out of consciousness a lot." James Allotta came for a visit and Rose recognized him. When James left the room, "Rose took a mask off her face ... and said: 'Frank's son.' (She was barely able to speak at this point.)"

Carolann later discussed Rose's comment with the declarant aunt and cousins, who told her that Frank was the father of all three claimants. The claimants contend that they had no suspicion that Frank was their father until Rose made her deathbed comment.

The claimants also filed as creditors against Rose's estate, alleging unjust enrichment. They contend that, as pretermitted children, they were entitled to receive their intestate share of Frank's estate and that by failing to give them notice, Rose received their share and was unjustly enriched. Following the denial of their creditors' claim, the claimants sued the estate, seeking to impose a constructive trust on a portion of Rose's estate equal to their intestate share of Frank's estate. The trial court consolidated the two estate actions.

In yet another proceeding, the claimants sued to establish paternity. At oral argument on this case, counsel advised the court that the paternity action is still pending.

After hearing the bank's motion to dismiss the petition to reopen the Frank Magrini estate, the trial court concluded that (1) former RCW 11.04.080 was constitutional; (2) the claimants did not qualify as heirs because they did not satisfy the statutory requirement of producing a declaration from Frank acknowledging them as his children; and (3) to reopen Frank's estate it was necessary to show fraud, a showing that the claimants had failed to make. Thus, the court summarily dismissed both actions.

ANALYSIS

A. Duty to Give Notice

In 1965, RCW 11.76.040 required a personal representative to give notice of his or her appointment and of the pending probate to "each heir and distributee of said estate whose name and address is known to him..." Former RCW 11.76.040 (1955) (amended by aws of 1969, ch. 70, sec. 3). "Heir" was defined in RCW 11.04.280, which stated in part:

The word "heirs" shall be construed as meaning the person or persons to whom land, tenements, and hereditaments descend as defined in RCW 11.04.010, 11.04.020, 11.04.050, 11.04.060 and 11.04.080 through 11.04.170.

Former RCW 11.04.280 (repealed by Laws of 1965, ch. 145, sec. 11.99.015). Former RCW 11.04.080 limited the rights of illegitimate children to inherit from their fathers to those whose fathers had acknowledged paternity in a signed, witnessed writing.

The question here is whether Rose had a duty to give notice to all known illegitimate children or only those who had the appropriate written acknowledgment. Stated in a slightly different way, did Rose have a duty to give notice to all possible heirs or only those who could prove they were heirs under the statute by producing a written acknowledgment? Because Rose had a right to rely upon the statute in effect during Frank's probate, ³ we assume former RCW 11.04.080 was constitutional for purposes of this discussion.

The Washington Supreme Court has addressed the question of notice to possible heirs in the context of an intestacy. In Francon v. Cox, 38 Wash.2d 530, 231 P.2d 265 (1951), the court held that a widow-administratrix had a duty to give notice to a possible child of the decedent even though the widow believed her husband was not the father of the child. Francon, 38 Wash.2d at 539-40, 231 P.2d 265. In concluding that failure to give probate notice to the child amounted to extrinsic fraud, the court said: "[widow], as administratrix, took it upon herself to determine that appellant was not an heir of decedent when this was clearly a matter for the probate court to decide." Francon, 38 Wash.2d at 537, 231 P.2d 265.

Rose's duty to give notice is necessarily limited by her knowledge, i.e., she has a duty to give notice to those she knows, or with the exercise of reasonable diligence should know, to be heirs. Hesthagen v. Harby, 78 Wash.2d 934, 941, 481 P.2d 438 (1971) (heirs and distributees entitled to notice include those whose names and addresses are ascertainable by the exercise of due dilignce). But Rose can never definitively know whether Frank executed a written acknowledgment for an illegitimate child. The most Rose can say is that she is unaware of a written acknowledgment for the child. Yet, the child or a third party could have such an acknowledgment. Thus, if Rose has a duty to give notice only to those she knows have a written acknowledgment, and she can never know for certain whether an acknowledgment exists, she can never know for certain to whom she must give notice. Such uncertainty ill-serves the finality of probate proceedings. In the Matter of Estate of Toth, 91 Wash.App. 204, 210, 955 P.2d 856 (1998) (failure of personal representative to timely notify interested parties in conformity with RCW 11.28.237 denies them due process and renders the decree of distribution void) (citation omitted).

Furthermore, reading the statute to require that Rose give notice only to those she knows to have a written acknowledgment raises due process concerns. Under such a reading, Rose would not be required to give notice to pretermitted heir claimants who might have valid claims, i.e., illegitimate children who, unknown to Rose, have a written acknowledgment. Yet such children have as much interest in the estate as those known to have a written acknowledgment. And such a reading may violate due process:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

We conclude that if Rose knew, or in the exercise of due diligence should have known, that Frank was the probable father of the claimants, she had a duty to give them notice of Frank's probate even if she did not know of any written acknowledgment by Frank.

B. Constitutionality of Washington's Illegitimacy-Inheritance Statute

Having decided that Rose...