Bartlett v. Bartlett, 25705.

• Decision Date: 23 August 1935
• Docket Number: 25705.
• Parties: BARTLETT et al. v. BARTLETT et al.
• Court: Washington Supreme Court

48 P.2d 560

183 Wash. 278

BARTLETT et al. v. BARTLETT et al.

No. 25705.

Supreme Court of Washington

August 23, 1935

Department 2.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by Vernor H. Bartlett and another against Herbert W. Bartlett and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Hart Snyder, of Spokane, for appellants.

A. O Colburn, of Spokane, for respondents.

STEINERT Justice.

This is an action to compel specific performance of a written agreement made between husband and wife with reference to community property. Demurrer to the amended complaint having been sustained, and plaintiffs having elected to stand upon their pleading, the court entered a judgment dismissing the action, from which judgment plaintiffs have appealed.

The facts, as they appear from the amended complaint, are these September 9, 1914, Elmer H. Bartlett and Ida A. Bartlett became husband and wife. Mr. Bartlett was then fifty-one years of age; Mrs. Bartlett was forty-six years of age. The appellants are the children of Mr. Bartlett by former marriages; the respondents Herbert W. Bartlett [sic] and Alice May Miller are the children of Mrs. Bartlett, also by a former marriage.

April 11, 1916, Mr. and Mrs. Bartlett entered into a written agreement which reads as follows:

'This agreement made and entered into this 11th day of April, 1916, by and between Elmer H. Bartlett and Ida A Bartlett husband and wife: Witnesseth: That whereas the parties herein named are husband and wife and have been such since the 9th day of September, 1914, and are and have been residents of the State of Washington, since the date of their marriage, and whereas all the property, personal and real, owned by said parties is community property, and has been acquired by them since their marriage and residence in the State of Washington; and whereas said parties desire to avail themselves of the provisions of Section 3883, Pierce Washington Code; Ballingers Code Section 5919.

'Now, therefore, in consideration of the love and affection that each of said parties has for the other, and in consideration of the mutual benefits to be derived therefrom by the parties hereto, it is hereby agreed that in the case of the death of the said Elmer H. Bartlett while the said Ida A. Bartlett survives him, every and all the property both personal and real now owned by either or both of said parties, together with any other property by them hereafter acquired, shall at once vest in the said Ida A. Bartlett in fee simple; and in the event of the death of said Ida A. Bartlett leaving the said Elmer H. Bartlett surviving her the whole of said property now owned by either or both of said parties, together with all property by them subsequently acquired shall at once vest in the said Elmer H. Bartlett in fee simple.

'In witness whereof, the said Elmer H. Bartlett and Ida A. Bartlett have hereunto set their hands and seals this 11th day of April, 1916.

'It is also hereby agreed, that any and all property in the possession of the survivor of the aforesaid parties shall, at the time of his or her death, be equally divided among the surviving children of said parties to this agreement, share and share alike.

'E. H. Bartlett

'Ida A. Bartlett

'Signed and sealed in the presence of Elizabeth Ward Bowen.' (Italics ours.)

The deed was acknowledged by both parties on April 17, 1916, in accordance with the statute.

It was alleged in the amended complaint that Mr. and Mrs. Bartlett did not believe, at the time that they entered into the agreement, that any children would result from their marriage, and the fact is that none was ever born of that union.

Mr. Bartlett died May 17, 1930, and his estate was thereafter duly probated. Mrs. Bartlett died October 23, 1933, leaving a will with a codicil attached. By the codicil, Mrs. Bartlett devised an undivided interest in certain real estate to appellants. By her will, the remainder of her estate was bequeathed and devised to her own two children above named. Respondent Beutelspacher was duly appointed, and subsequently qualified, as the executor of her will. All of the real estate devised by Mrs. Bartlett, with the exception of one lot, had come to her through the probate of Mr. Bartlett's estate. It is apparent that Mrs. Bartlett's will was not in accordance with the concluding provision of the agreement above set forth. That circumstance is the factor which has given rise to this controversy.

Section 3883, Pierce Washington Code [1905] and section 5919 Remington & Ballinger's Code [1910], referred to in the agreement and now appearing as Rem. Rev. Stat. § 6894 [P. C. 1929, § 1440], reads as follows: 'Nothing contained in any of the provisions of this chapter, or in any law of this state, shall prevent the husband and wife from jointly entering into any agreement concerning the status or disposition of the whole or any portion of the community property, then owned by them or afterward to be acquired, to take effect upon the death of...