Craney v. Low

GIBSON, C. J.

Plaintiff is seeking to impose a trust on the estate of her deceased son which was distributed to defendant Gander as the son’s widow.

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The other defendants are Mrs. Gander’s attorney in the probate matter and his secretary, who acted as administratrix of the estate. General demurrers to plaintiff’s third amended complaint were sustained, and she has appealed from the ensuing judgment.

The complaint contains two counts, which will be discussed separately. The first count may be summarized as follows: Decedent owned certain property, including a lease on a hotel with a renewal option. Plaintiff, an elderly woman of limited means, lived about 500 miles from the place where probate proceedings were had. Decedent had contributed to her support at regular intervals, and for about a year after his death she received small amounts of money from Mrs. Gander. In correspondence with plaintiff and decedent’s brother and sister after his death, Mrs. Gander made various statements such as that plaintiff should not worry about her son’s affairs and that Mrs. Gander would carry out the son’s

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wishes and would keep plaintiff “posted” as to everything that went on concerning his estate. A short time prior to the date plaintiff received notice of the probate proceedings, Mrs. Gander requested decedent’s sister to inform plaintiff that she would do everything possible to protect plaintiff’s interest in the estate, that plaintiff need not retain an attorney and could put as much trust and confidence in her as in decedent, and that, after the six months’ waiting period required by law, plaintiff could expect a handsome share of decedent’s assets. Plaintiff relied on these representations, and the deception practiced on her by Mrs. Gander prevented her from appearing in the probate proceedings. The administratrix made no effort to renew the lease on behalf of the estate. Instead Mrs. Gander, aided by her attorney, made use of the option for her personal advantage. Defendants caused all the estate to be distributed to Mrs. Gander, and by virtue of their acts plaintiff was deprived of her right to inherit one half of decedent’s separate property.

A party may attack a judgment when the extrinsic fraud of the other party has deprived him of an opportunity to present his case or obtain a fair adversary hearing.