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02/01/68 LENA FRASIER v. ELLA W. CARTER

February 1, 1968.

LENA FRASIER, PLAINTIFF-RESPONDENT,
v.
ELLA W. CARTER, EXECUTRIX OF THE ESTATE OF D. L. CARTER, DECEASED, DEFENDANT-APPELLANT



Taylor, Justice. Smith, C. J., and McQuade, McFadden and Spear, JJ., concur.

Author: Taylor

Plaintiff (respondent) brought this action against D. L. Carter, a practicing attorney, upon the following agreement, to wit:

"D. L. CARTER

Lawyer

Room A, Washington Hotel

Phone 10 P. O. Box 107

Weiser, Idaho

May 12, 1962"

"Mrs. Lena Frasier

"Dear Lena

"This is to advise and confirm our agreement -- that in the event the J. W. Frasier estate case now on appeal is not terminated so that you will receive settlement equal to your share of the estate as you would have done if your waiver had been filed in the estate in proper time, that I will make up any balance to you in payments as suits my convenience and will pay interest on your loss at 6%.

Sincerely

/s/D. L. Carter"

D. L. Carter and plaintiff were brother and sister. Plaintiff is the surviving widow of John W. Frasier who died testate March 8, 1960. Surviving him, in addition to plaintiff, were three children. The estate consisted of both separate property of deceased and community property of plaintiff and deceased. By his will Frasier devised and bequeathed all of the separate and community property to plaintiff and the three children. The specific devises and bequests to the plaintiff were more valuable than her interest in the community property. However, the specific devises and bequests were conditioned upon a waiver by the plaintiff of her interest in the community property, and the will provided that if she failed to waive her community property rights then she would receive her interest in the community property and nothing more.

D. L. Carter, as her attorney, advised plaintiff in relation to her late husband's estate. Between August 5, 1960, and February 21, 1961, there was correspondence between Carter and the attorneys representing the co-executors of Mr. Frasier's will concerning plaintiff's rights under the will. In four of such communications the attorneys for the co-executors inquired whether plaintiff would waive her interest in the community property. June 2, 1961, the attorneys for the executors wrote to plaintiff herself, enclosing a waiver for her signature, and suggesting that she consult Mr. Carter in respect thereto. No such waiver was executed by plaintiff. Decree of distribution was rendered in the probate proceedings June 8, 1961 (amended ...


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