Estate of Lennon v. Lennon
| Decision Date | 27 August 2001 |
| Docket Number | No. 46795-6-I.,46795-6-I. |
| Citation | 108 Wn. App. 167,108 Wash. App. 167,29 P.3d 1258 |
| Court | Washington Court of Appeals |
| Parties | In re the ESTATE of Elsie LENNON, Deceased/Respondent, v. Roger P. LENNON, Appellant. |
Michael L. Olver, Merrick & Olver, Seattle, for Appellant.
Willard G. Smith, Eugene Decker Seligmann, Seattle, for Respondent.
This is an action brought by the personal representative of the estate of Elsie Lennon to recover the proceeds from stock certificates sold by Roger Lennon, Elsie's stepson. Relying on the deadman's statute,1 the estate submitted redacted portions of Roger's declaration and deposition in support of its argument that Roger converted the stocks for his own benefit and wrote unauthorized checks from Elsie's account. Roger argues that the estate waived the deadman's statute by submitting evidence of transactions with the decedent. The trial court found that the estate did not waive the deadman's statute and granted summary judgment to the estate. We hold that the estate waived the deadman's statute with respect to the stock transaction but not the gift checks. Accordingly, we reverse summary judgment regarding the stock certificates and affirm regarding the gift checks. We also affirm the trial court's decision to deny an award of attorney fees to the estate.
Elsie Lennon died intestate on January 17, 1999. She was predeceased by her husband Edward Lennon, who died in 1995. Edward and Elsie were married in 1952. Roger, Edward's son from a previous marriage, lived with them until Roger purchased his first home in 1959. By all accounts, Roger and Elsie had a close personal relationship. Beginning in 1995, Roger began stopping at Edward and Elsie's home every morning to check on their needs. Not long before Edward's death, Elsie broke her hip in a fall and was admitted to a convalescent center before returning home. Elsie subsequently suffered two more falls, and Roger testified that he visited her each morning, left work to help her with bathroom problems, and slept on her couch for two to three weeks while she recovered. Roger also testified that he gave Edward and Elsie money each month starting in the late 1970s to help them out because he thought they were in need. He stopped giving them money in 1995 when he discovered that Edward had $50,000 in his checking account.
Roger testified that he was aware that his father had stock in Seattle First National Bank (SeaFirst) and Peoples Bank, and that both Edward and Elsie repeatedly stated that those stocks were to be his inheritance. Some of the stock certificates were in the name of Edward Lennon, some in the name of Elsie Lennon, and some in their joint names. Roger stated in his declaration that after his father died in October 1995, he and Elsie retrieved legal papers, including the stock certificates, from Elsie's safe deposit box at Washington Mutual Bank. Roger testified at his deposition that he brought the contents of the box home and kept them in his safe for awhile "until she was ready to deal with it." He then brought everything to Elsie at her home. She inventoried all of the items. Because he did not want to go to the bank that day, he left the items that were to go back to the safe deposit box with Elsie. He took the stock certificates home and placed them in his home safe. Elsie did not know the combination to the safe and did not have access to them. Roger stated in his declaration that Elsie had delivered the stock certificates to him as his inheritance, and that he returned the house titles back to their safe deposit box at Elsie's direction.
Roger and Elsie brought the contents of the safe deposit box, along with Edward and Elsie's community property agreement, to estate planning attorney Charles Mullavey. Roger and Mullavey testified that Elsie said she wanted her estate to go to Roger when she died. Mullavey advised Elsie to execute a will, and they had an extended discussion regarding joint tenancy accounts. Elsie decided that she wanted Roger to be added to her accounts as joint tenant. On October 23, 1999, Roger and Elsie opened an account at Washington Mutual as joint tenants with right of survivorship (JTWROS). Roger does not dispute that the account consisted solely of funds deposited by Elsie. Elsie also gave Roger a general power of attorney on September 17, 1995.
The stock certificates remained in Roger's home safe until December 1998. At that time, Elsie fell again and was admitted to the hospital. Roger said that he offered to sell his stocks to pay for Elsie's home care because she did not want to stay in a nursing home. Roger took the stock certificates to Washington Mutual and asked them to sell the stocks and deposit them in the JTWROS account. The bank advised Roger that it could not cash the stocks, so he took them to SeaFirst and asked them to cash the stocks and put the money into his Washington Mutual account. SeaFirst advised Roger that he needed to open two accounts for them to cash the stocks, so Roger agreed. He said that SeaFirst personnel determined how the accounts should be set up and filled in the application. The accounts were opened in the name of Elsie Lennon, with himself as trustee power of attorney. The SeaFirst accounts were established on December 15, 1998, and Roger delivered the stock certificates to that bank on the same day. Roger said that he told SeaFirst to liquidate the stocks and give him a cashier's check so he could deposit the proceeds into the JTWROS account at Washington Mutual. Proceeds from the sale of the stocks were placed in the SeaFirst account in several increments during February 1999. SeaFirst did not give Roger a check for the proceeds until after Elsie Lennon's death. Roger stated that it was his intent to liquidate the stocks to hire full-time care for Elsie, not to lose his ownership of the stocks because of the bank's slowness.
On January 15, 1999, two days prior to Elsie's death, Roger wrote and signed three checks from the JTWROS account. He wrote a check for $2,000 to himself, a check for $2,000 to his sister Diane Brown, and a check for $1,000 to Dara Morrow, who helped Elsie at her home. The checks were denominated as Christmas gifts.
Later that year, the personal representative of Elsie's estate caused a citation to be issued, directing Roger to appear and show cause why he should not return "any and all property belonging to the deceased." The parties appeared twice before a superior court commissioner, who ruled that the matter would be set for trial. The estate moved for partial summary judgment and requested "[a]n order excluding any testimony by Roger Lennon as to: transactions he had with the decedent; statements made to him by the decedent; and statements made to him by the decedent's late husband."
The trial court granted partial summary judgment in favor of the estate, held that the estate had not waived the protections of the deadman's statute, and denied the estate's request for attorney fees. The court later entered an amended order adding a money judgment of $231,064.50 plus prejudgment interest and costs against Roger Lennon, dismissing the remaining issues and striking the trial date. Roger Lennon appeals from that order, and the Estate cross-appeals the court's refusal to award attorney fees.
We review an order of summary judgment de novo.2 All facts and inferences are considered in a light most favorable to the nonmoving party.3 Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.4
The deadman's statute, RCW 5.60.030, bars testimony by a "party in interest" regarding "transactions" with the decedent or statements made to him by the decedent.5 A "party in interest" under RCW 5.60.030 is "one who stands to gain or lose in the action in question."6 A "transaction" under the deadman's statute is broadly defined as "`the doing or performing of some business between parties, or the management of any affair.'"7 "`[T]he matter concerning which the testimony is given must involve some act by and between the parties for the benefit or detriment of one or both of the parties.'"8 The test of a "transaction" is whether the deceased, if living, could contradict the witness of his own knowledge.9 When it appears that there was a personal transaction with the deceased and the testimony offered tends to show either what did or did not take place between the parties, it must be excluded so long as it concerns the transaction or justifies an inference as to what it really was.10 However, the deadman's statute does not prevent an interested party from testifying regarding his or her own feelings or impressions.11
The deadman's statute may be waived when the protected party introduces evidence concerning a transaction with the deceased.12 Once the protected party has opened the door, the interested party is entitled to rebuttal.13 A waiver by introduction of testimony about one transaction does not extend to unrelated transactions and conversations.14 Engaging in pretrial discovery, including taking depositions or propounding interrogatories, does not waive the deadman's statute unless a representative of the estate introduces the deposition or interrogatories into evidence.15
Relying on McGugart v. Brumback, Roger first argues that the estate waived the protection of the deadman's statute per se by introducing his redacted declaration and deposition into evidence. We disagree. The McGugart court held that the "mere taking of a deposition or propounding of interrogatories is not a waiver of the statute's bar when the deposition or interrogatories are not introduced in evidence by a representative of the estate."16 But there is nothing in McGugart or subsequent cases which supports Roger's theory that a party effectuates a per se waiver of the deadman's statute by introducing a deposition...
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