Rawnsley v. Dempster

HANSON, J. pro Tem.

The only question to be determined on this appeal is whether a decree, in a special proceeding in which appellant and respondent were parties, which adjudged that respondent was (1) an heir (i.e.,' daughter) of decedent; (2) that the estate left by decedent was her separate property; and (3) that respondent was entitled to one third of decedent’s estate, bars a subsequent action by decedent’s spouse from relitigating the question whether the property was in fact her separate property in whole or in part.

The decedent Ann Rawnsley died testate leaving surviving her the appellant, her husband, a daughter of that marriage named Ena Rawnley, and a daughter by a prior marriage, with one Wilkinson, of the name of Ann Dempster. By her will the testatrix bequeathed and devised all her property to her surviving husband for life with remainder over to her daughter Ena Rawnsley. The will made no provision for or mention of decedent’s daughter Ann Dempster. The surviving husband having been appointed administrator with will annexed filed an inventory listing decedent’s property wherein he averred, under oath, that all of decedent’s property was her separate property. Thereafter, respondent Ann Dempster filed a petition in the probate proceeding wherein she

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averred she was the daughter of the decedent and entitled to have distributed to her one third of decedent’s estate and prayed that the court determine the rights of all persons entitled to the estate and determine who “are entitled to distribution” thereof.

Appellant as surviving husband along with his own daughter Ena filed a verified statement, in the nature of an answer, admitting that the petitioner was a daughter of decedent and one of her heirs .at law and averring affirmatively that the estate was the separate property of decedent but that nevertheless they were entitled to the estate in accordance with the terms of the will to the exclusion of petitioner owing to certain advancements which had been made to petitioner by decedent during her lifetime.

At the trial counsel for the husband and his daughter stated that the only issue between the parties was whether petitioner could be charged with the alleged advancements. The trial court found and adjudged, among other things, that petitioner was the daughter of decedent and that the entire estate of decedent was her separate property; that petitioner “1. . . . is entitled to receive and have distributed to her, and there is vested in her, one-third of the estate of decedent, free of any life interest, or other interest, of James Rawnsley therein.