116 Wash. 513 | Wash. | 1921
A. D. Andrews brought this suit for the purpose of establishing and enforcing an alleged oral contract with his father, Joshua Andrews, to the effect that the latter would, by will or otherwise, at the time of his death, give to the plaintiff all property then owned by him. Upon a trial on the merits, the lower court dismissed the action, and the plaintiff has appealed.
The direct and surrounding facts are as follows: Joshua and Harriet Andrews were, respectively, the father and mother of the appellant, and lived in the city of Seattle, while the appellant with his family lived in West Seattle. This was in 1903. At that time, Joshua and his wife owned certain lots in the city of Seattle, on which they lived. Mrs. Andrews, senior, was afflicted with cancer, and for many months the wife of the son, A. D. Andrews, daily at times, and at other times less frequently, went to the home of Mrs. Andrews, senior, and nursed her and took care of her wants. After some months of this manner of care, it was agreed between the two families that Joshua and his wife should move to West Seattle and live in the home of their son and his family. This contemplated move was made sometime in 1903. The mother continued to reside in the home of her son until her death, and the father lived there much longer.
In the early part of January, 1904, it became apparent that Mrs. Andrews, senior, was approaching death, and she desired to make disposition of her property. She seems to have felt herself much indebted to her son and his family for their services to her in
After the death of his wife, Mr. Andrews, senior, continued to abide with the son and his family until about the middle of the year 1905, when the son, for business reasons, went to Nome, Alaska, with a view to remaining there for at least several years. Mrs. Andrews, junior, however, continued to reside in the West Seattle home until July, 1906, when she and her family moved to Nome. During all of the time previous to the departure of Mrs. Andrews, junior,
All the briefs in the case refer to a memorandum opinion of the trial court and quote extensively therefrom, referring to it as part of the record. It is not, however, a part of the record, but from the assertions in the briefs, we take it that the trial court found as a
This court has more than once held that an oral contract of the character here mentioned is enforcible notwithstanding the statute of frauds, if there has been full or partial performance. In fact, that question seems to be so well settled in this court that we deem it unnecessary to do more than cite some of the cases: Velikanje v. Dickman, 98 Wash. 584, 168 Pac. 465; Alexander v. Lewes, 104 Wash. 32, 175 Pac. 572; Worden v. Worden, 96 Wash. 592, 165 Pac. 501; Swash v. Sharpstein, 14 Wash. 426, 44 Pac. 862, 32 L. R. A. 796. In the Lewes case we said:
“Cases of this kind are not favored, and when the promise rests in parol are even regarded with suspicion, and will not be enforced except upon the strongest evidence that it was founded upon a valuable consideration, and deliberately entered into by the deceased. But while not favored and rarely enforced upon oral proofs, the power to make a valid agreement to dispose of property by will in a particular way has long been recognized.”
The first question we must discuss is whether the original contract was made. It is a well settled principle of law that contracts of this character must be established by clear and convincing evidence. The appellant undertook to establish the existence of this contract by the testimony of his wife. At the trial the respondent objected to her testifying concerning any conversations on this subject had between Joshua Andrews and the appellant, for the reason that the appellant’s wife was a party in interest. The respondent’s objections were overruled. The appellant neither in his brief nor in his oral argument touched the question as to the competency of his wife to testify
“No person offered as a witness shall be excluded from giving evidence by reason of his interest in the event of an action, as a party thereto or otherwise; but such interest may be shown to affect his credibility : Provided, however, That in an action or proceeding where the adverse party sues or defends as executor, administrator, or legal representative of any deceased person, or as deriving right or title by, through, or from any deceased person, or as the guardian or conservator of the estate of any insane person or of any minor under the age of fourteen years, then a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him with or statement made to him by any such deceased or insane person, or by such minor under the age of fourteen years. . . .”
This court has expressly held that, if a like oral contract with the husband was concerning community property, or if the property sought to be acquired by the suit would be community property when acquired, then the wife is an interested party and is forbidden by the statute to testify concerning the contract. In the case of Whitney v. Priest, 26 Wash. 48, 66 Pac. 108, the facts were as follows: Whitney was a physician
“The plaintiff and the witness Josephine Whitney were husband and wife. The professional services which were the subject of contract between plaintiff and the deceased involved the community interest. The compensation for such services belonged to the community. Mrs. Whitney was interested equally with her husband. She must necessarily be said, therefore, to be a party in interest, and the transaction and the statements made to plaintiff must equally involve his wife. The witness then falls within the disability of the proviso of the statute, and it was error to admit her testimony as to the transaction and statements made by the deceased to the plaintiff.”
The whole question here, then, resolves itself into the proposition whether the property which the appellant sought to recover would have been, had he succeeded in recovering it, community property or his separate property. If it would have been community property, then the wife was a party in interest and could not testify, and the objection of the respondent should have been sustained.
We are convinced that the property sought to be acquired by this action would have been community property had it been acquired. Section 5915, Eem. Code, defines the separate property of the husband as follows:
*520 “Property and pecuniary rights owned by the husband before marriage and that acquired by him after-wards by gift, bequest, devise or descent, with the rents, issues and profits thereof, shall not be subject to the debts and contracts of his wife, and he may manage, lease, sell, convey, encumber or devise by will, such property without the wife joining in such management, alienation or encumbrance, as freely and to the same extent as though he were unmarried. ’ ’
Section 5916, Rem. Code, defines in substantially the same words the separate property of the wife. Section 5917, Rem. Code, defines community property as follows:
“Property, not acquired or owned as prescribed in the next two preceding sections, acquired after marriage by either husband or wife, or both, is community property.”
The main question is, was the property sought to be obtained by this suit acquired by “gift, bequest, devise or descent,” within the spirit of the statute?
We are satisfied that it would not have been so acquired. It would have been acquired by contract. There is no element of gift, bequest or devise involved in this case. Joshua Andrews, according to the alleged agreement, was to will his property to his son for a consideration, and that consideration was that the latter was to maintain and support him during the remainder of his life, or such portion thereof as he might elect to accept such maintenance and support. The testimony was that the services to be performed in payment of the property to be acquired were performed by the appellant and his wife. It was their community property which housed and sheltered Joshua Andrews; it was the community money of the appellant and his wife which furnished, and was to furnish, the table from which Mr. Andrews, senior,
Without the testimony of the appellant’s wife, there is not sufficient evidence upon which to base any contract. While the self-sacrifice made by the appellant, and particularly by his wife, is to be highly commended, the rules of law forbid them any compensation.
The judgment must be affirmed.
Parker, C. J., Mackintosh, Fullerton, and Holcomb, JJ., concur.