Dahlgren v. Blomeen
| Decision Date | 31 May 1956 |
| Docket Number | No. 33425,33425 |
| Citation | 49 Wn.2d 47,298 P.2d 479 |
| Parties | Mamie DAHLGREN, Executrix of the Estate of Ellen S. ROSS, substituted in the place of Ellen S. Ross, as party plaintiff, Appellant, v. Carl A. BLOMEEN, Respondent. Carl A. BLOMEEN, Respondent, v. Mamie DAHLGREN, Appellant. . Department 2 |
| Court | Washington Supreme Court |
Elliott, Lee, Carney & Thomas, Seattle, for appellant.
Walthew, Oseran & Warner, Seattle, for respondent.
This is an appeal from a decree in favor of the respondent, Carl Blomeen, impressing a lien upon the net estate of Ellen S. Ross, deceased. The appellant, Mamie Dahlgren, is executrix and residuary legatee under the will of Ellen S. Ross.
The lien imposed by the trial court was based upon two findings: first, that the parties had entered into an oral agreement to make and maintain mutual wills; and second, that the decedent had executed a written agreement to make and keep in effect a will leaving her net estate to the respondent in consideration of his conveying to her the lot on which the home of the parties was situated. The appellant has assigned error to these findings.
In about the year 1932, the decedent began to live with the respondent in a meretricious relationship, which continued until May, 1953, when she moved into the home of the appellant, who had offered to care for her during her illness. She died of cancer on October 9, 1953.
Throughout the years that the parties lived together, the decedent was employed as a billing clerk for a steel manufacturer. The respondent was employed at a machine shop until his retirement in 1944, after which he continued to operate a small machine shop, which he termed a 'hobby shop' in the basement of their home. It appears that the earnings of the decedent were substantially larger than those of the respondent; however, they pooled their resources and paid their living expenses out of a common fund.
On November 11, 1939, the respondent purchased a lot in Seattle, on which the parties caused a house to be constructed, using their common funds. They made their home in this house until the decedent moved away in 1953. The respondent has continued to reside in the home.
In 1942, the respondent deeded the lot to the decedent and, at the same time, reciprocal wills were executed. Contemporaneously with the execution of the deed and wills, an agreement was drawn by Storey Birdseye, a Seattle attorney, whereby the decedent, in consideration of the conveyance to her of the lot, agreed to bequeath and devise all of her property to the respondent. The original of this agreement was not produced at the trial; and the carbon copy introduced in evidence was not signed or dated. Mr. Birdseye testified that, based upon the condition of his files, he was reasonably certain that the agreement had been signed by the decedent.
In 1947, in order to facilitate a suit which the respondent had brought against the owners of an adjoining lot for removal of lateral support, the decedent deeded the property back to him. At the same time the respondent executed a deed dated three months in advance and delivered it to the decedent.
Wills were executed by both parties in 1944 and in 1947, the only changes being in contingent beneficiaries. On November 3, 1952, the decedent executed a new will, whereby she left to Blomeen and two other beneficiaries one dollar each, and to the appellant the balance of her estate. At the time of her death in 1953, the respondent's will was still in effect.
The parties had lived together happily until Ellen Ross' health began to fail two years before her death, when she became increasingly critical of the respondent. The evidence was conflicting as to whether he mistreated her during this period, but the trial court believed the testimony of witnesses who said he was always kind to her. The decedent moved into the home of the appellant; however, the respondent refused to allow her to take furnishings and personal belongings from the home until he was advised by his attorney that she had a right to do so. Afterwards, she instituted a replevin action to obtain certain furnishings and other personal property located in the dwelling. Joined with this action was a forcible entry and detainer action. After the death of Ellen Ross, the appellant, as executrix, was substituted as plaintiff in these actions.
On February 2, 1954, the respondent instituted an action to impess a trust in his favor upon the estate, based upon an alleged breach of a contract to marry and an agreement to make mutual wills. In his complaint, the unilateral agreement, of the decedent to leave her estate to the respondent in consideration of his execution of the deed, was not mentioned; however, it was set forth in his cross--complaint in the replevin and forcible entry and detainer action, wherein he prayed that the deed be canceled and he be adjudged the sole owner of both the realty and the personal property located thereon. He also asked for judgment against the decedent in the amount of $4,192.09, being his personal funds which he claimed she had appropriated.
The two actions were consolidated and tried together to the court. As stated above, the trial court made findings that an agreement to make mutual wills had been entered into and that, in consideration of the execution of the deed to the property, the decedent had agreed to devise all of her estate to the respondent. There was a finding that the articles of personalty had been acquired through the common fund, through inheritance by the decedent, by gifts made to the parties separately and jointly, and by purchase with their separate funds. The court found that certain items of furniture and other personalty within the dwelling were owned by the decedent and certain others were owned by the respondent.
If the court's finding in regard to either agreement is supported by the evidence, the judgment must be sustained. We find in the record no evidence of any agreement to make and maintain mutual wills, other than the fact that reciprocal wills were executed on three different occasions and, as we held in In re Edwall's Estate, 75 Wash. 391, 134 P. 1041, reciprocal wills, although executed simultaneously, do not in themselves constitute evidence of a contract to execute such wills and keep them in effect. The wills executed by the respondent and the decedent contain no reference to an agreement to make and maintain such wills, and consequently they fall within the rule stated in In re Edwall's Estate, supra. Since there was no evidence to sustain the court's finding that the parties had made such an agreement, the judgment can be sustained only if the decedent was justified in finding that the decedent had agreed to make and maintain a will in favor of the respondent, in consideration of his having deeded the home property to her.
The respondent, in his testimony, insisted that the agreement taken from the files of the attorney, Mr. Birdseye, was not the agreement which the decedent had signed, although he was equally certain that she had signed an agreement drawn in Mr. Birdseye's office on the same day that the wills and deed were drawn. The respondent at the trial described the agreement in these words:
'It say, she signed the paper, Mr. Birdseye made up the paper, s...
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...(5) tenancy in common, Shull v. Shepherd, 63 Wash.2d 503, 506, 387 P.2d 767 (1963); and (6) contract theory, Dahlgren v. Blomeen, 49 Wash.2d 47, 50-52, 298 P.2d 479 (1956). In 1984, this court discarded this presumption. Lindsey, 101 Wash.2d 299, 678 P.2d 328. Lindsey involved a couple who ......
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Portmann v. Herard, 49563-5-II
...do not in themselves constitute evidence of a contract to execute [mutual] wills and keep them in effect." Dahlgren v. Blomeen , 49 Wash.2d 47, 50, 298 P.2d 479 (1956). ¶ 27 An agreement to execute mutual wills can be expressed in the wills themselves. Newell , 23 Wash.App. at 770, 598 P.2d......
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Table of Cases
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