Nelson v. Nelson

DRAPEAU, J. In 1947 Dr. Duane L. Nelson and his then wife Zenith Nelson entered into a property settlement. They agreed that the husband would pay $200 a month for the support of two minor children of the marriage. In the same year the wife was granted an interlocutory decree of divorce. The decree incorporated the provision for the support of the children.

In 1948 the superior court modified the decree, fixing support for the children at $75 per month for one and $100 per month for the other.

Thereafter Dr. Nelson married Nancy Jean Nelson.

Dr. Nelson died March 9, 1951. He made no mention of the children in his will. But he did provide for them by life insurance of over $10,000, from which they have received $2,000 in cash and are receiving $75 per month each.

After Nancy Jean Nelson was appointed executrix of the will, the first wife, as guardian of the children, presented their claims against the estate for $12,750 for one and for $18,650 for the other. These claims were rejected, and action to enforce them was commenced in the superior court by the guardian.

The first wife as guardian and the executrix widow entered into a writing which recited: (a) That the inventory value of the total assets in the estate was $53,000. (b) That all of the assets of the estate were community property of Dr. Nelson and his second wife; and (e) that, based upon a tentative final account $8,522.81 would be left for payment of the minors’ claims. This agreement was the result of a year’s negotiations among the parties and their lawyers.

[734]Upon these premises the agreement provided that the action to enforce the claims would be compromised and settled by the payment by the executrix of $2,965.06 to one minor, and $1,976.64 to the other, a total of $4,941.70. In addition to that sum the minors had heen paid $1,900 family allowance from the estate. In effect the agreement gave to the children approximately one-half of the net distributable assets of the estate, and the other one-half to the widow.

The first wife petitioned the probate court for an order compromising the claims, in accordance with the agreement. The petition was granted, and the order made.

Then the first wife secured additional legal advice, and moved the court to set aside the order, on the ground of inadvertence-and mistake. (Code Civ. Proc., §473.)