Clark v. Crist

• Decision Date: 11 July 1934
• Docket Number: 25032.
• Citation: 178 Wash. 187,34 P.2d 360
• Parties: CLARK v. CRIST et al.
• Court: Washington Supreme Court

34 P.2d 360

178 Wash. 187

CLARK v. CRIST et al.

No. 25032.

Supreme Court of Washington

July 11, 1934

Department 1.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Suit by Almira L. Clark against R. Crist, administrator of the estate of Margaret I. Phillips, deceased, and another. From a decree for plaintiff, defendants appeal.

Reversed with direction.

Newman H. Clark, of Seattle, and William H Pemberton and John M. Boyle, Jr., both of Olympia, for appellants.

Revelle Revelle & Kells, of Seattle, for respondent.

STEINERT Justice.

This action was brought to compel the specific performance of an oral contract alleged to have been made by respondent with a person now deceased. The complaint alleged that the parties to the contract agreed to associate themselves together as companions and, as such, to enter into business and to travel and live together until death; the complaint further alleged that the parties agreed to merge their properties into a common ownership during their joint lives and to execute mutual wills under which the entire property remaining at the death of either should go to the survivor. The prayer of the complaint was that a trust be imposed upon the estate of the decedent for the benefit of the respondent. The answer was a general denial of the allegations of the complaint. From a decree granting the relief prayed for, the administrator of the estate of the decedent and also the state of Washington through its inheritance tax and escheat division, have appealed.

Errors are assigned upon the findings, conclusions, and decree of the court. The principal question, and the only one that we shall discuss, is whether the evidence was sufficient to establish the contract as alleged by the respondent and as found by the court. That question must be considered in the light of the well-established rule in this state that, in cases of this kind, the evidence must be conclusive definite, certain, and beyond all legitimate controversy. Frederick v. Michaelson, 138 Wash. 55, 244 P. 119; Eidinger v. Mamlock, 138 Wash. 276, 244 P. 684; Sweetser v. Palmer, 147 Wash. 686, 267 P. 432; McCullough v. McCullought, 153 Wash. 625, 280 P. 70; Whitaker v. Titus, 166 Wash. 225, 6 P.2d 649; Lohse v. Spokane & Eastern Trust Co., 170 Wash. 46, 15 P.2d 271.

Margaret I. Phillips, the decedent herein, formerly lived with her husband in Wenatchee, Wash. Mr. Phillips died in 1928, leaving Mrs. Phillips property of the value of eight or ten thousand dollars. Most of the property was real estate. Mrs. Phillips, then about seventy years of age and afflicted with heart trouble, sold the real estate, except one piece, and in the latter part of 1929 took up her residence in an apartment house in Seattle. The proceeds of the real estate which she had sold appears to have been invested by her in stock, which, together with similar stock inherited by her from her sister, was originally worth about $8,500, but at the time involved in this action was worth only about $1,000.

At the apartment house where Mrs. Phillips resided there also lived, during the latter part of 1929 and the early part of 1930, the respondent and her husband. The two ladies became acquainted with each other at the apartment house, and their acquaintanceship appears to have ripened into a warm friendship, although Mrs. Clark was about fifteen years younger than Mrs. Phillips. Mr. and Mrs. Clark moved away from the apartment house in the spring of 1930, and some time thereafter Mr. Clark took sick, and, after a lingering illness, died on August 13, 1930. The only property that Mrs. Clark seems to have had was a little furniture, sufficient to furnish two rooms. Having no other means, she was compelled to work for her living as a hotel maid. The friendship between the two ladies continued and grew. Being alone, they often visited each other, attended church together, and frequently exchanged dinner invitations. In her visitations Mrs. Clark performed many little courtesies for Mrs. Phillips, such as one friend might naturally extend to another of Mrs. Phillips' age and affliction. Appreciative of these courtesies, Mrs. Phillips seems to have made frequent reference to them in the presence of several people who later became witnesses in this case. The friendship between the two ladies lasted until Mrs. Phillips suddenly died in December, 1930.

On January 13, 1931, appellant Crist was appointed administrator of Mrs. Phillips' estate, which then consisted of the stock above mentioned, about $200 cash, and a piece of barren land in Grant county, of doubtful and undetermined value. During her lifetime Mrs. Phillips had mentioned in a casual way that she had cousins somewhere but never particularly identified them. The administrator being unable to locate any heirs, the state of Washington claimed the estate by escheat. In April, 1932, which was more than fifteen months after Mrs. Phillips' death, respondent began this action against the administrator seeking to enforce the contract which she claimed had been made on September 2, 1930.

To establish the alleged contract, the respondent called nine witnesses, practically all of whom were her personal friends. Of these, four merely testified that they had met Mrs. Phillips on one or two occasions and had heard her say that she appreciated the little things that Mrs. Clark had done for her, that she intended to repay her for them, and that the two were planning on living together. Another witness, the proprietress of the apartment house where Mrs. Phillips lived, was also called and testified to some details considered favorable to the respondent, but her testimony, on the whole, was more favorable to the defense. The appellant Crist was called by the respondent merely to testify as to the amount of the estate. The respondent, under the limitations of the statute, testified to nothing that was of any material importance in the case. Only two witnesses gave any testimony relative to the purported agreement. One was the respondent's brother; the other was a lady friend who had known the Clarks for about three years and from whom the latter had at one time rented a furnished cottage.

The brother testified that he first met Mrs. Phillips, through Mrs. Clark, on November 2, 1930. His story was to the effect that on that day he and his sister had called on Mrs Phillips at her apartment, and that during their conversation Mrs. Phillips had told him how kind Mrs. Clark had been to her, and that in return for her kindness she intended to take care of Mrs. Clark. He further testified that Mrs. Phillips then also told him that she had eight or ten thousand dollars in money, and that it had been previously agreed between her and Mrs. Clark, on September 2, 1930, that she (Mrs. Phillips) was to use her money to buy a hotel or apartment house which Mrs. Clark was to operate, that she and Mrs. Clark were to put...