Bishop v. Lynch

• Decision Date: 09 April 1941
• Docket Number: 28126.
• Parties: BISHOP v. LYNCH et al.
• Court: Washington Supreme Court

111 P.2d 996

8 Wn.2d 278

BISHOP v. LYNCH et al.

No. 28126.

Supreme Court of Washington

April 9, 1941

Department 2.

Action by Marguerite Lynch Bishop against Dan J. Lynch and another for partition of land and for an accounting. From an adverse judgment, the named defendant appeal.

Affirmed.

Appeal from Superior Court, Mason County; John M Wilson, judge.

Vanderveer Bassett & Geisness, of Seattle, for appellants.

Chas R. Lewis and J. W. Graham, both of Shelton, for respondent.

BEALS Justice.

Jeremiah and Mary Lynch, with their family, resided in Mason county for many years. They had several children, Timothy, Dan Jeremiah and Margaret, who married James Cashman. Timothy Lynch married, his wife's Christian name being Margaret, and had three children, Marguerite, Dan J., and Kathleen, who died unmarried in 1917. Mary Lynch, the wife of Jeremiah, senior, died intestate in 1911. Jeremiah died testate in 1912. Timothy Lynch died intestate in 1913. The estates of Jeremiah, Mary and Timothy were probated, and were apparently closed by a consolidated decree of distribution. Margaret Cashman died, and her estate was probated and closed. Kathleen Lynch's estate was probated and closed. Margaret Lynch, the widow of Timothy, died testate, January 11, 1937, and her estate was probated and closed.

Jeremiah, senior, and Mary, his wife, owned considerable property, and the same was distributed, as to some real estate, in undivided portions. One of the tracts with which we are concerned is described as government lot 4, section 10, township 19 north, range 3 west, which tract will be referred to herein as lot 4.

Marguerite Lynch married Frank Bishop, and during the year 1938 instituted this action against her brother Dan J. Lynch, and her uncle Jeremiah Lynch, asking for a partition of certain property of which plaintiff and defendants were the owners as tenants in common, and also asking for an accounting. The accounting phase of the litigation is not involved in this appeal. For some years prior to the institution of this action, plaintiff owned a small undivided interest--1/36 or 2/36--in lot 4. Her interest was later increased, as hereinafter noted.

July 22, 1927, Dan J. Lynch conveyed to his mother, Margaret Lynch, by deed recorded the same day, his entire interest in several tracts of land in Mason county, owned by the family. February 16, 1929, Margaret Lynch, then a widow, signed and acknowledged a deed reconveying to her son Dan J. Lynch the property previously conveyed to her by her son. This deed was filed for record September 27, 1939. The question of whether or not this deed was ever delivered is important in connection with this litigation. The trial court was of the opinion that the evidence failed to show that the deed from Margaret Lynch to her son Dan J. Lynch had ever been delivered, and in determining the ownership of the property described in that instrument, disregarded the same.

As to lot 4, the trial court found that plaintiff was the owner of an undivided 37/72 interest, and that defendant Dan J. Lynch was the owner of an undivided 35/72 interest, and directed that the tract be partitioned in such a manner that Dan J. Lynch should receive no advantage or benefit from the enhancement of the value of the tract by the erection of buildings thereon by plaintiff at her own expense.

From the order directing partition, defendant Dan J. Lynch has appealed, assigning error upon the refusal of the trial court to hold effective and valid the deed above referred to from his mother, Margaret Lynch, to himself; upon a ruling of the trial court to the effect that his claim under that deed constituted a collateral attack upon the decree of distribution entered in his mother's estate; and upon the determination of the respective interests in various parcels of property made by the court as affected by the court's refusal to give effect to the deed referred to. Error is also assigned upon that portion of the order which directs that lot 4 be partitioned in such a manner that Dan J. Lynch shall receive no benefit from the enhanced value of the property by reason of the improvements thereon.

Defendant Jeremiah Lynch did not appeal, nor has he filed any appearance or brief in this court, and apparently is not interested in the questions here presented.

Respondent has moved to dismiss the appeal on the ground that the same was prematurely taken, no final decree of partition having yet been entered. The order appealed from declares and adjudicates the respective interests of the parties to this action in several tracts of real estate. It appoints three referees to partition the real and personal property, save one tract which was ordered sold as not subject to partition, and directs that lot 4 be so partitioned as to afford appellant no advantage or benefit on account of the improvements placed on the property by respondent at her own expense. The decree further adjudged that respondent is entitled to a general accounting from appellant. Respondent argues that the order is not appealable, as the referees have made no report, and that upon appeal from a decree confirming their report when made, an appeal will lie which will bring Before this court for review all the matters which appellant seeks to review by the appeal which he has taken.

The decree finally and definitely adjudicates the respective interests of the parties to this action in several different tracts of land. As to such matters the order determines the respective rights of the parties. The motion to dismiss the appeal is denied. Mood v. Mader, 162 Wash. 83, 298 P. 329. The case of Hamlin v. Hamlin, 90 Wash. 467, 156 P. 393, relied upon by respondent, is not in point here.

We shall first discuss the matter of the delivery of the deed to Dan J. Lynch. It appears that Margaret Lynch, the mother of appellant and respondent, left a will naming appellant as executor thereof. The executor prepared his inventory of the property left by his mother, including therein, as property of the estate, the property which was described in the deed above referred to, dated February 16, 1929, from his mother to himself. In due course the executor filed his final account and petition for distribution. October 2, 1937, a decree was entered approving the final account and distributing the property in accordance with the executor's petition for distribution, all without regard to the deed. The decree distributed all of Margaret Lynch's interest in a tract of land in Thurston county to respondent, all of her interest in Mason county real estate and all other property, real and personal, belonging to the estate, in equal shares to respondent and appellant.

Appellant was called by respondent as an adverse witness, and later testified as a witness on his own behalf. During the course of his testimony, while called to the stand by respondent, and while under crossexamination by his own counsel, he identified a deed which his mother had executed, which was exhibited to him and marked for identification, stating that the same bore his mother's signature. Asked when and under what circumstances he had received this deed, objection was made upon the ground that the question concerned a transaction between the witness and a deceased person, and was objectionable under Rem.Rev.Stat. § 1211. The trial court overruled the objection, whereupon the following occurred:

'Q. Who gave it to you? A. My mother.

'Q. When? A. Oh, sometime in '27.

'Q. And she died in '30? A. Yes.

'Q. You said '27. It is dated '29. You had better look at it. A. It was delivered to me sometime in '29.

'Q. It was? A. Yes.'

Further objection was interposed by respondent, upon the ground that the deed covered property which appellant, as executor of his mother's will, had inventoried in her estate as property belonging thereto, the property having been included in the final decree of distribution. The court then sustained respondent's objection, and the deed was not received in evidence. The following then occurred:

'Q. Where has this deed been since its delivery to you? A. It was in my desk in my room.

'Q. With other papers? A. Yes.'

Later, while appellant was testifying as a witness on his own behalf, the deed was again exhibited to him, appellant testifying as follows:

'Q. I am going to show you now defendant's identification number 1 and ask you if you saw your mother execute the instrument. A. Yes, I brought her to town the day she executed the deed.

'Q. Where was it executed? A. In Julia Waldrip Ker's office.

'Q. What was done with it when it was executed? A. She gave it to me.

'Q. What did you do with it? A. I kept it in my possession.

'Q. Has it been out of your possession until you gave it to me to record? A. No, it hasn't.'

Respondent then interposed an objection when the deed was offered in evidence, upon the ground that the deed constituted a collateral attack upon the decree of distribution, whereupon the court stated that when it had previously ruled on the matter the deed was refused largely on the ground that there had been no delivery thereof, and after some further discussion, stated that the deed would be admitted in evidence, with the understanding that its legal effect would be considered by the court at the final disposition of the case.

Mrs. Ker, the attorney at whose office appellant testified that the deed was executed, and who certified the grantor's acknowledgment thereof, was not called as a witness by either party.

As above stated, appellant testified that since the execution of the deed, it had been continuously in his possession, in his desk with other papers. Respondent testified that a day or two after her mother's funeral, she took two metal boxes...