Breckenridge v. Andrews

501 P.2d 657, 88 Nev. 520, 1972 Nev. LEXIS 512
CourtNevada Supreme Court
DecidedOctober 4, 1972
DocketNo. 6773
StatusPublished
Cited by3 cases

This text of 501 P.2d 657 (Breckenridge v. Andrews) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breckenridge v. Andrews, 501 P.2d 657, 88 Nev. 520, 1972 Nev. LEXIS 512 (Neb. 1972).

Opinions

[521]*521OPINION

By the Court,

Mowbray, J.:

This is an appeal from a judgment of the district court wherein certain property was ordered distributed to Respondent Virginia S. Andrews as the executrix of the estate of Julius Elbridge Smith, Jr. The judgment enforced the terms of the decree of final settlement and distribution of the estate of Julius Elbridge Smith (the senior), which had been previously entered by the same court. The lower court ruled that the previous decree vested an absolute and indefeasible interest in the subject property in Julius Elbridge Smith, Jr., and that the previous decree was final and binding on all concerned parties. We agree, and affirm the judgment of the district court.

1. Julius Elbridge Smith died testate on October 1, 1951. [522]*522His only survivors were Nell B. Smith, his second wife, and Julius Elbridge Smith, Jr., his only child, by his first wife. His will and four codicils were admitted to probate in the Fifth Judicial District Court, Nye County, Tonopah, Nevada, on November 6, 1951, and First National Bank of Nevada (“Bank”) was appointed executor.

Smith’s estate consisted of 1,000 shares of American Telephone and Telegraph Company (“AT&T”) capital stock. He bequeathed 80 shares of that stock to Nell, and he also created a testamentary trust for her benefit during her lifetime or until she should remarry. The corpus of the trust consisted of 425 shares of the AT&T stock.

Paragraph 6(h) of the will provided that upon Nell’s death or remarriage “. . . the trust herein created shall forthwith cease and determine, and the entire balance of the trust estate shall thereupon revert to and be and become a part of my residuary estate.”

Under the terms of Paragraph 7 of his will, as amended by the third codicil, Smith left to his son “[a]ll of the rest, residue and remainder of my estate and effects whatsoever, whether real, personal or mixed, (and after payment of all costs, taxes, fees and other expenses incurred in the administration of my estate).”

And, finally, the will provided in Paragraph 8, as amended by the fourth codicil:

“If my said son, JULIUS ELBRIDGE SMITH JR., shah die before accession to his estate, and leave no issue surviving, then and in such event I give and bequeath to VIRGINIA SMITH, the wife of my said son, one-fourth (l/4th) of my said residuary estate, and to my said wife, NELL B. SMITH, three-fourths (3/4ths) of my said residuary estate; . . .”

On May 30, 1952, the Bank, as executor, filed its first and final account and report for settlement, together with its petition for distribution of Smith’s estate. The district court on June 17, 1952, entered a decree wherein the executor’s final settlement was approved. As to distribution of the estate, the court, in its decree, found that, “by the terms of said decedent’s Will and Codicils thereto,” Nell was given 80 shares of AT&T stock, and the Bank, as trustee, was given 425 shares of AT&T stock to be held in trust for the benefit of Nell “until her death or remarriage, and thereupon, in either of said contingencies, the corpus of said trust estate, and any accretions thereto, [are] to be distributed to JULIUS ELBRIDGE SMITH, JR., the surviving son and only child of said decedent.” The court in 1952 expressly found that Smith had devised and bequeathed to his son “[a]ll the rest, residue and [523]*523remainder of said Estate, whether real, personal or mixed, and after first deducting all costs, taxes, fees and other expenses incurred in the administration of said Estate.” The court then ordered the distribution of the estate in accordance with the foregoing findings and additionally decreed:

“7. . . .
“(h) Upon the death or remarriage of decedent’s said widow, NELL B. SMITH, the trust herein created shall forthwith cease and determine, and the entire balance of the trust estate shall thereupon revert to and be and become a part of said residuary estate.”

2. On November 16, 1964, Julius Elbridge Smith, Jr., died testate and without issue. He named his wife, Virginia S. Smith, as executrix and sole legatee under the will. Virginia, the respondent herein, later married Laurence Andrews. Nell Smith died on April 23, 1970. Loraine Breckenridge and Marietta Steinert, the claimants-appellants, are Nell’s daughters by a previous marriage, and her sole heirs.

Virginia contends that, since Nell is deceased, the estate of Julius Elbridge Smith, Jr., is entitled to the remaining corpus of Nell’s trust. Nell’s daughters claim that they are entitled to three-fourths of the remaining corpus. The Bank, as trustee, petitioned the court below on May 22, 1970, for an order authorizing and directing the trustee to distribute the trust estate to the person(s) entitled thereto. The district court ruled, on June 21, 1971:

“That by a final decree of distribution, this Court distributed a vested interest in the reversion of said trust property to Julius Elbridge Smith, Jr., which decree is not ambiguous and which decree cannot be impeached by or contradicted by the terms of the will.”

We agree with that ruling, and we affirm the judgment below.

3. When the court in 1952 entered the decree of distribution, it was required to name in the decree the persons entitled to receive the various portions of the estate and to specify the portion of the estate to which each was entitled.1 The 1952 [524]*524decree of final settlement and distribution provided in Paragraph 5 that the stock be placed in an income trust for the benefit of the testator’s widow, Nell Smith, “until her death or remarriage; and that thereupon, and in either of said contingencies, the corpus of said trust estate, and any accretions thereto, be distributed to JULIUS ELBRIDGE SMITH, JR., the surviving son and only child of said decedent.”

That decree then ordered:

“6. — That the whole of said residuary Estate, of whatsoever kind and character, and wheresoever situate, with particular reference to and expressly including therein any balance of cash and the balance of shares of capital stock of said American Telephone and Telegraph Company remaining in the hands of said Executor (after liquidation of the aforementioned obligations, distribution of said specific bequest and the creation of said trust estate for the use and benefit of decedent’s said widow), together with any and all other property of whatsoever character or description and wheresoever same may be situated, and together with any and all other property not now known or discovered, which may belong to said Estate, or in which said Estate may have any interest, claim or demand, be and the same is hereby distributed to said JULIUS ELBRIDGE SMITH, JR., the surviving son and only child of said decedent.”

It is clear that the court in 1952 distributed unconditionally the remainder interest in the trust property to Julius Elbridge Smith, Jr. The decree was appealable.2 No appeal was ever taken. As this court said in Garteiz v. Garteiz, 70 Nev. 77, 82, 254 P.2d 804, 806 (1953):

“. . . When the decree of distribution became final, it was res judicata as to the rights of all persons interested in the estate in the absence of extrinsic fraud.

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Bluebook (online)
501 P.2d 657, 88 Nev. 520, 1972 Nev. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breckenridge-v-andrews-nev-1972.