Brookman v. Durkee

• Citation: 90 P. 914,46 Wash. 578
• Parties: BROOKMAN et al. v. DURKEE et al.
• Decision Date: 10 July 1907
• Court: Washington Supreme Court

90 P. 914

46 Wash. 578

BROOKMAN et al. v. DURKEE et al.

Supreme Court of Washington

July 10, 1907

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by John U. Brookman and others against Eugene R. Durkee and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded, with instructions to enter judgment in accordance with opinion.

Walker & Munn, for appellants.

Frank Allyn, for respondents.

FULLERTON, J.

In 1849 Eugene R. Durkee, then domiciled and having his residence in the state of New York, intermarried with one Cynthia H Durkee, and thereafter lived with her as his wife in that state until 1889. In the year last named Mrs. Durkee died intestate, leaving as her sole heirs at law the respondents in this action. During the time the marriage existed Eugene R. Durkee conducted a manufacturing business in the state of New York, and accumulated as the profits of such business a considerable fortune. In 1888, a year prior to the death of his wife, he used a portion of the fortune so accumulated in the purchase of certain real property situated in Pierce county, in this state, and in 1902 died in the state of New York, leaving a will by which he devised the property to the appellants. Neither the husband nor wife ever resided or had a domicile in this state. The respondents claim that the real property mentioned was the community property of Eugene and Cynthia Durkee, and that they have an undivided half interest therein as heirs of their mother. The appellants claim that the property was the separate property of Eugene R. Durkee and that they are the owners of the whole thereof by virtue of the will. At the trial it was conceded that the rules of the common law governed the ownership of personal property acquired by a husband in the course of trade or business in the state of New York, and that money and other personal property accumulated by him in that state became his sole and separate property, subject to his absolute dominion, and that the wife had no interest therein which would descend to her heirs on her death during the lifetime of her husband. The court held, nevertheless, that the real property purchased in this state during the lifetime of the wife with the funds so accumulated became the community property of the husband and wife, and that the wife's heirs inherited an undivided one-half interest in the property on her death. The correctness of this holding presents the sole question to be determined on this appeal.

The statutes of this state defining separate and community property read as follows (quotations from Ballinger's Ann. Codes & St.):

'Sec 4488. Property and pecuniary rights owned by the husband before marriage, and that acquired by him afterwards by gift, bequest, devise or descent, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of his wife, and he may manage, lease, sell, convey, incumber, or devise, by will, such property without the wife joining in such management, alienation, or incumbrance, as fully and to the same effect as though he were unmarried.

'Sec. 4489. The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise, or inheritance, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of her husband, and she may manage, lease, sell, convey, incumber or devise by will such property, to the same extent and in the same manner that her husband can, property belonging to him.

'Sec. 4490. 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 husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof.'

These statutes, the respondents assert, make no distinction between property acquired within this state and property acquired in another state and brought into this state, but that under these statutes all property acquired after marriage by either husband or wife, not acquired by gift, devise or inheritance, or from the rents, issues, or profits of property so acquired, whether the same be acquired wholly within this state or in some other state and brought into this...