Pitzer v. UNION BANK OF CAL.

• Citation: 9 P.3d 805,141 Wash.2d 539
• Docket Number: 67701-8.
• Decision Date: 14 September 2000
• Parties: Marie PITZER, Carolann Guilford, and James Allotta, Respondents, v. UNION BANK OF CALIFORNIA (formerly known as the Bank of California), a foreign corporation, as Personal Representative of the Estate of Rose Magrini, Petitioner, and In the Matter of the Estate of Rose Magrini, Deceased, In the Matter of the Estate of Frank Magrini, Deceased.
• Court: United States State Supreme Court of Washington

9 P.3d 805

141 Wash.2d 539

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

No. 67701-8.

Supreme Court of Washington, En Banc.

Argued February 15, 2000.

Decided September 14, 2000.

Kendall Michael Jennings, Paul Ralph Willett, James W. Feltus, Tacoma, for Petitioner.

Franklin William Shoichet, Seattle, for Respondent.

MADSEN, J.

Marie Pitzer, Carolann Guilford, and James Allotta (Respondents) have recently come to believe they are the illegitimate¹ children of the late Frank Magrini and seek imposition of a constructive trust against the estate of Rose Magrini, Frank Magrini's late wife, who was the coexecutor and sole beneficiary of his estate. Alternatively, Respondents seek to reopen his probate, which has been closed since 1974.

At the time of Frank Magrini's death, former RCW 11.04.080, repealed by 1965, ch. 145, § 11.99.015, provided that illegitimate children were not able to inherit from their father's estate as pretermitted heirs unless the father acknowledged paternity in a signed and witnessed writing. No acknowledgment exists in this case. Nevertheless, Respondents contend they are entitled to receive a portion of Frank Magrini's estate because, argue Respondents, former RCW 11.04.080 is constitutionally infirm. Specifically, they contend the statute unlawfully discriminates on the basis of illegitimacy and sex based classifications and thus, violates the equal protection clause of the United States Constitution, article I, section 12 of the Washington Constitution, and the Equal Rights Amendment.

We hold that Respondents may not avail themselves of the equitable remedy of a constructive trust, nor have they made the necessary showing to reopen Frank Magrini's probate. Therefore, we find it unnecessary to decide the merits of Respondents' constitutional arguments. See State v. Smith, 104 Wash.2d 497, 505, 707 P.2d 1306 (1985)

("court will not reach a constitutional issue if it can decide the case on nonconstitutional grounds"). Accordingly, we reverse the Court of Appeals and affirm the trial court's grant of summary judgment in favor of Petitioners.

FACTS

The Petitioners in this case are Union Bank of California (the personal representative of Rose Magrini's estate) and the estates of Rose and Frank Magrini. Respondents are Marie Pitzer, Carolann Guilford, and James Allotta, all of whom claim to be the illegitimate children and pretermitted heirs of Rose Magrini's late husband, Frank Magrini. Respondents, in two consolidated actions, seek to impose a constructive trust on his wife's estate for the amounts they believe they were entitled to receive as his pretermitted heirs, or alternatively, reopen Frank Magrini's 1965 probate. Clerk's Papers (CP) at 65-72, 207-12. Respondents have filed a separate paternity action, not consolidated with this case, which is currently pending in superior court. Resp'ts' Opening Br. at App. B.

Frank and Rose Magrini were married, but never had children. Rose's brother, Fischer Allotta, was married to Anna Allotta until the couple's divorce in 1960. CP at 110. Anna Allotta gave birth to Respondents, the last of whom was born in 1946. Throughout their childhood, Respondents knew of Frank Magrini as their "uncle." Id.

Frank Magrini died testate on September 6, 1965, and his will was admitted to probate on September 9 of the same year. CP at 6. Frank left his entire estate to his wife Rose, naming her and his attorney, Leo McGavick, as coexecutors of his estate. CP at 2, 4. Respondents were contingent beneficiaries under Frank Magrini's will, named in a list of eight "nieces and nephews." CP at 4. The record does not contain any evidence that Respondents were given official notice of Frank Magrini's probate. The coexecutors distributed the assets as provided for in the will and a Declaration of Completion of Administration was filed on March 8, 1974. CP at 63.

Rose Magrini died on December 8, 1995. CP at 207. In April 1996, Respondents moved to reopen Frank Magrini's estate. CP at 71. They also filed suit against Petitioner, the personal representative of Rose Magrini's estate. CP at 207-212. By agreement of the parties the two actions were consolidated. CP at 219. Respondents claim the coexecutors of Frank Magrini's estate, Rose Magrini and Leo McGavick, should have notified them of the 1965 probate because they are Frank Magrini's children, and thus, according to Respondents, entitled to a share of his estate as pretermitted heirs. CP at 65-66.

In a supporting affidavit, Respondent Carolann Guilford explains how in 1995 she came to believe that "Uncle Frank" might be more than just an uncle. CP at 114-16. Carolann Guilford states that she was present when James Allotta visited Rose Magrini in the hospital just prior to her death. CP at 115. According to Ms. Guilford, Rose Magrini recognized Mr. Allotta (whom she had not seen in 30 years) and after he left the room Rose removed her oxygen mask and said, "Frank's son." CP at 112. Ms. Guilford later discussed that remark with older relatives. CP at 116. These relatives recounted that they had known for years that Fischer Allotta had been sterile due to syphilis, that Anna Allotta had a lengthy affair with Frank Magrini, and that Frank Magrini had fathered all of Anna Allotta's children. CP at 119-23, 148-51. Three relatives submitted affidavits confirming the same and stating that Frank's paternity of Anna's children was a closely guarded family secret until after Rose's death. Id.²

The Pierce County Superior Court granted summary judgment in favor of Petitioners, dismissing Respondents' claims with prejudice. CP at 237-38. The court found that former RCW 11.04.080 was constitutional and that as such, Respondents did not qualify as pretermitted heirs because Frank Magrini had not acknowledged his paternity in a signed and witnessed writing. Resp'ts' Opening Br. at App. A. In making its decision, the court assumed that Respondents were "in fact" biological children of Frank Magrini. Id. As an alternative finding, the court determined that there was no showing of fraud, which the court would have required as a prerequisite to reopening Frank Magrini's estate or imposing a constructive trust on the estate of Rose Magrini. Id.

In a published split decision, the Court of Appeals, Division Two, reversed. Pitzer v. Union Bank, 93 Wash.App. 421, 969 P.2d 113 (1998). The Court of Appeals held that even if former RCW 11.04.080 were constitutional, Rose Magrini, as coexecutor of Frank Magrini's estate, had a duty to notify Respondents of the probate since she knew or reasonably should have known Frank Magrini might be Respondents' biological father. Id. at 427-28, 969 P.2d 113. The court concluded that this lack of notice created a jurisdictional defect, providing sufficient grounds to reopen Frank Magrini's estate or impose a constructive trust against the estate of Rose Magrini in favor of Respondents. Id. at 435-36, 969 P.2d 113. The court went on to hold that former RCW 11.04.080 is unconstitutional on equal protection grounds and that Respondents are therefore pretermitted heirs under former RCW 11.12.090, repealed by Laws of 1994, ch. 221, § 72, assuming they can prove paternity. Id. at 428-35, 969 P.2d 113.

ANALYSIS

The date of a testator's death generally governs the applicable law of succession. In re Succession of Landry, 460 So.2d 29, 30 (La.Ct.App.1984); In re Leavy's Estate, 122 N.H. 184, 442 A.2d 588, 590 (1982); Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900, 21 A.L.R.4th 249 (1980); In re Schick's Estate, 149 Ind.App. 549, 274 N.E.2d 291, 299 (1971). There are two former RCW provisions, in effect at the time of Frank Magrini's death in 1965, pertinent to this case. Former RCW 11.12.090 was Washington's pretermitted heir statute:

If any person make his last will and die leaving a child or children ... not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator, as to such child or children not named or provided for, shall be deemed to die intestate, and ... entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part.

Laws of 1965, ch. 145, § 11.12.090.

Under this provision a child was not "named" unless they were identified in the will by the testator as a "child." In re Hamilton's Estate, 73 Wash.2d 865, 441 P.2d 768 (1968) (child named as a stepchild); In re Estate of Marshall, 27 Wash.App. 895, 900, 621 P.2d 187 (1980) (adopted child named as niece).³ Moreover, a child was not "provided for" if his or her gift was contingent in nature. In re Ridgway's Estate, 33 Wash.2d 249, 205 P.2d 360 (1949).

The second provision, former RCW 11.04.080 governed when a child born out of wedlock was deemed an heir of their biological parents:

Every illegitimate child shall be considered as an heir to the person who shall in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child, and shall in all cases be considered as heir of his mother, and shall inherit his or her estate in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock.

Code of 1881, § 3305. Laws of 1965, ch. 154, sec. 11.04.080.⁴

Respondents do not dispute that former RCW 11.04.080, by its terms, precludes them from taking any portion of Frank Magrini's estate as pretermitted heirs. Even if they are Frank Magrini's biological children, there is no contention that he signed a written acknowledgment of paternity...