123 Wash. 409 | Wash. | 1923
By this action the plaintiff sought to obtain the title to some lands in King county. The facts, which are very little in dispute, are these: About 1907, George "W. Boyce and his wife, Alice, became the owners of the land in question, and thereafter resided on it until the death of Mrs. Boyce in August, 1913. Mr. Boyce continued to reside there, until his death in April, 1921. Three children, to wit: Ada M. Hearn, Lee B. Swingley and the plaintiff, being the issue of •a former marriage, survived Mrs. Boyce. Not long after her death, Mr. Boyce visited the office of E. L. Rinehart, an attorney of Seattle, and inquired of him whether the plaintiff had asked him to draw certain deeds, and was informed that no such request had been made. Mr. Boyce then told the attorney that he had
This conversation was probably on October 31,1913. Mr. Rinehart asked Mr. Boyce to go to another attorney in the building to have his will drawn, stating that meanwhile he would prepare the deeds in question. This program was carried out. Deeds dated October 31, 1913, from the plaintiff and his brother and sister, conveying the King county real estate to Mr. Boyce, were duly executed and delivered. On the same date, Mr. Boyce executed and delivered the quitclaim deeds to the Illinois property and made a will which, after disposing of two or three minor bequests, gave to the plaintiff and his brother and sister all of the rest and residue of his property. The deed to the King county property and the will were left in possession of Mr. Rinehart for about a year, when they were turned over to Mr. Boyce, Mr. Rinehart retaining a carbon copy of the will. On January 1, 1917, Mr. Boyce deeded the King county property to the defendant Daniels, and a short time thereafter he made a new will, giving all of his property to the defendant Daniels, revoking all previous wills, and in March, 1921, just before his death, he made another deed to
Before the bringing of this suit, Ada M. Hearn and Lee B. Swingley conveyed and assigned their interest in the subject-matter to the plaintiff. The last will and testament of Mr. Boyce was duly probated and the plaintiff filed his claim against the estate of the deceased, setting up his right to the property involved in this action, which claim was rejected and this suit followed. The trial court found for the plaintiff and entered a decree adjudging that the defendants Daniels and wife held the King county property in trust for the plaintiff, and that they had no interest in the property, cancelling and annulling the two deeds from Mr. Boyce to Daniels and directing that, after the payment of the claims of creditors and the expenses of administration, all the assets of the estate be distributed to the plaintiff, and ordering Daniels and wife to make, execute and deliver to the plaintiff their deed to the property. Defendants have appealed.
Appellant’s motion to separately number and state the causes of action in their complaint, and their demurrer to the complaint on the ground that several causes of action were improperly united and that there was a misjoinder of parties defendant, and the separate demurrer of Mrs. Daniels, are not well taken. The complaint concerns but one matter and was properly stated in one cause of action. Beyond question, Daniels and wife were necessary parties defendant because it was from them that the respondent was trying to take the property. It is not necessary for us to determine whether Daniels, as executor of the Boyce will, was a necessary or proper party, because the demurrer would not reach that question.
A somewhat more difficult question arises, however, concerning the testimony of Mr. Rinehart. This case must stand or fall upon his testimony. He is, or was at the time of the trial, one of the attorneys for the respondent, and had been such for a long time prior thereto. He testified that he had made no arrangements with the respondent concerning attorney’s fees in this action, and that he did not have any agreement for a contingent fee or for any interest in any property which might be acquired by the plaintiff in the action; that he would charge his client a reasonable fee, and that he would probably do as attorneys usually do, “charge more when we are successful than when we are not.”
Section 1211, Rem. Comp. Stat., provides:
‘ ‘ That in an action or proceeding where the adverse party sues or defends as executor of any deceased person, or as deriving any right or title by, through or from any deceased person . . . 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, or .statement made to him by such deceased or any insane person.”
The exact question to be decided is whether Rinehart is a “party in interest.” This identical question
Nearly all of the authorities hold that, where there are no arrangements made for attorney’s fees and only a reasonable fee is to be or can legally be, charged, there is no such interest as precludes him from testifying concerning transactions with a deceased person, and the fact that the attorney may expect to charge more in the event he wins than he would if he lose does not alter the rule. Haydon v. Easter, 15 Ky. Law 597, 24 S. W. 626; Jackson v. Bennett, 98 Ga. 106, 26 S. E. 53; Birge v. Rhinehart, 36 Iowa 369; Propst v. Fisher, 104 N. C. 214, 10 S. E. 295.
At the common law, no person who had an interest in the result of a suit was permitted to testify, and it was apparently the rule that an attorney who had no arrangements for a contingent fee and could only charge a reasonable fee for his services was not interested and could testify for his client. Newman v. Bradley, 1 Dall. (Pa.) 239; Mott v. Bernard, 97 Mo. App. 265, 70 S. W. 1093. Succession of Henry Grant, 14 La. Ann. 795.
In 28 E. C. L. 504, it is stated:
“Where a statute declares a person interested in tbe event of a suit against tbe estate of a deceased incompetent to testify therein, it is considered tbat tbe expression ‘interest in tbe event’ was neYer intended to enlarge the class to be excluded under it beyond what tbe common law excluded in using tbe same language with reference to interested persons generally. Accordingly, following tbe trail.blazed by tbe common law decisions it is held tbat interest, to disqualify a witness, must be present, certain and vested, not uncertain, remote or contingent, and must be in tbe event of tbe action. In other words, bis interest must be sucb tbat be will either gain or lose by tbe direct legal operation and effect of tbe judgment of tbe court disposing of tbe facts, in dispute. ’ ’
See, also, 12 Ency. Law 793; 40 Cyc. 2290.
In this case tbe attorney can only charge a reasonable fee, and in contemplation of law he will get tbat fee whether tbe suit is won or lost. Tbe fact tbat be intends to follow tbe usual custom of attorneys to charge somewhat less than a reasonable fee in tbe event tbe suit is lost cannot change tbe rule.
We are of tbe opinion tbat tbe witness was properly permitted to testify.
Tbe respondent undertook to prove tbe execution of tbe first will by presenting a carbon copy thereof, and this is objected to. Appellant seems to contend tbat the respondent is attacking tbe last will and con
It is next contended that there was no proof in support of the allegation of the complaint that the appellant was not the bona fide owner and that he took the property in question with knowledge of the rights of the respondent. It was not necessary, in order for the respondent to recover, that the appellant should have been guilty of any fraud or should have had actual knowledge of respondent’s rights. If appellant paid a valuable consideration for the deeds in question, then manifestly the oral agreement affecting the respondent’s rights could not be enforced, but if the transfer of the property to the appellant was a mere gift for which he paid no consideration, then respondent’s rights can be enforced even though appellant had no prior knowledge of them. There was ample testimony to show that the transfer of the property was a gift^-pure and simple — and that no consideration had been paid.
It is next contended that the testimony is insufficient to support the decree. This is an equitable ac
The judgment is affirmed.