In re Brown's Estate

• Citation: 28 Wn.2d 436,183 P.2d 768
• Decision Date: 17 July 1947
• Docket Number: 30181.
• Court: United States State Supreme Court of Washington
• Parties: In re BROWN'S ESTATE. v. TURNER. BROWN

183 P.2d 768

28 Wn.2d 436

In re BROWN'S ESTATE.

BROWN v. TURNER.

No. 30181.

Supreme Court of Washington

July 17, 1947

Department 1

Proceeding in the matter of the estate of Louis W. Brown, deceased wherein Florence Turner, who had theretofore been named administratrix, filed her application as surviving spouse for award of property in lieu of homestead. From an order awarding surviving spouse certain items of personal property in lieu of homestead, Edward O. Brown appeals.

Reversed.

Appeal from Superior Court, Benton County; B. B. Horrigan, Judge.

Futter, Merrick & Merrick, of Pasco, for appellant.

Moulton & Powell and Thomas B. Gess, all to Kennewick, for respondent.

MILLARD Justice.

When Florence Turner married Louis W. Brown in 1943 both were elderly people. He was in comfortable circumstances, with a small farm, stocks, bonds and cash, while she had no separate property. No community property was accumulated. Early in 1946 the husband brought an action for a divorce. January 31 1946, Mr. and Mrs. Brown, both being represented by attorneys, entered into a written property settlement which recited that the parties had separated and were living apart but that they desired to remain as friendly as possible and believed that they could make an equitable and just property agreement which would properly provide for both parties since they had not been able to make a success of their marriage. The agreement, so far as material, reads as follows:

'That the first party herein, in the event that a decree of divorce is granted, will present to the Court for its approval the following agreement:

'1. First party shall receive all of his personal effects and belongings, including a 1931 Ford Automobile, a bed and radio, and all cash, securities, or other property now in his possession, provided, however, that first party agrees to pay second party $46.00 cash to cover the cost of second party having her name legally changed.

'2. Second party shall receive all property now in her possession, including all cash, securities, and bonds.

'3. It is hereby agreed that first party owns the following described real estate situated in County of Benton and State of Washington, to-wit: [description not essential] the same having been acquired by the first party during his previous marriage.

'It is further agreed that the first party will arrange to sell the above described property upon contract of for cash, and will recognize that second party should be allowed some consideration so as to adequately care for second party for the remainder of her lifetime. It is hereby agreed that first party shall give second party a warranty deed to three-sevenths undivided interest in the above described real property, and first party shall sell the remaining four-sevenths interest to John A. Rothfuss and wife on contract for $4000.00.

'4. In the event of the granting of a divorce in the above entitled action, this property settlement shall be a full and complete settlement of all of the property rights of the parties hereto, and the property received by the first party hereunder shall thereupon become and/or remain in his separate property, free and clear of all claims whatsoever on the part of the second party, and the property received by the party of the second part shall thereupon become her separate property, free and clear of any claims whatsoever on the part of the first party. It is hereby agreed by the parties hereto that this property settlement shall be final and conclusive between the parties hereto, regardless of whether or not either party hereto may die Before the Interlocutory Decree of Divorce shall become final. It is further agreed between the parties hereto, that no claim whatsoever shall be made by second party, from first party, for any alimony whatsoever. The party of the first part herein shall pay the costs of the divorce action, including his attorney's fees.

'It is further understood and agreed by and between the parties hereto that from this date forward all income received by either party hereto shall be construed to be separate property of the party receiving the same, free and clear of any claim whatsoever, of the other party. Each of the parties hereto hereby agree that they will execute the necessary instruments of transfer in order to put this property agreement into effect when requested so to do by the other party of his or her attorney.

'This agreement shall be binding on each of the parties hereto, their heirs and assigns forever.'

On February 1, 1946, the day after the property settlement was signed, both parties sold their separate interest in the real estate to John A. Rothfuss and wife. Louis Brown signed a real estate contract and statutory real estate warranty deed and Florence Brown signed a quitclaim deed. The...