Shelley v. Basso

SHINN, J.

This is an appeal by W. Frank Shelley from a decree of distribution by which all of the property which was found to belong to the estate of John Basso, deceased, was determined to be community property and was distributed to his widow, Cattarina Basso. Appellant was in court as the assignee of a 20 per cent interest in a share of the estate claimed by decedent’s daughter, Jennie V. Geisler.

Decedent by his will left all of his estate to his wife. He failed to name his daughter and his son in the will or to declare his intention not to provide for them, and the daughter had claimed in earlier proceedings the rights of inheritance which she would have enjoyed if her father had died intestate. The will was duly admitted to probate and Cattarina was appointed executrix. She filed a petition to establish the fact of John Basso’s death, in which she described ten parcels of property, both real and personal, and alleged that they were held in joint tenancy by her husband and herself. After notice of the hearing the court rendered a judgment on May 22, 1941, granting the petition and reading in part as follows: “It is ordered, adjudged and decreed by the court that John Basso died on the 13th day of November, 1940. The property

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owned by Cattarina Basso, also known as Katie Basso and Catherin Basso, and decedent as joint tenants is described as follow: [Here a description of the ten parcels].” Thereafter, the daughter filed a petition to determine heirship, alleging that she and her brother were not named in the will and, with the widow, were entitled to inherit the estate, and praying that the court determine to whom distribution should be made. A hearing was had upon the petition, at which the daughter and the widow were represented, evidence was introduced and findings, conclusions and a judgment were made and entered by which it was determined that certain property, which was particularly described and which we shall refer to as the estate property, was community property of the decedent and Cattarina and that Cattarina was entitled to distribution of the whole thereof. The description listed the property substantially as returned in the inventory but did not include any of the property described in the joint tenancy petition and order; the judgment declared that the court had no jurisdiction to make a determination as to the titles to those properties and no adjudication was made. The daughter attempted to appeal from this decree but she failed to perfect her appeal and it was dismissed in the Supreme Court. In that proceeding appellant sought leave to prosecute the appeal on his own behalf as assignee of a share of the daughter’s claimed interest, but his application was denied. In due course the executrix filed her final account, report and petition for distribution, charging herself with the estate as inventoried and as described in the findings in the proceedings to determine heirship. When the matter came on for hearing appellant presented objections and sought to have distributed to him as such assignee one-fifth of one-third of the estate. At the conclusion of the “objector’s” ease the court made, an order denying the objections of appellant, settling the account and distributing to the widow certain specifically described property, being the property described in the final account. No adjudication was made or attempted with respect to the joint tenancy property.