Findley v. Findley

• Decision Date: 27 December 1937
• Docket Number: 26765.
• Citation: 74 P.2d 490,193 Wash. 41
• Parties: FINDLEY et ux. v. FINDLEY et al. (FINDLEY, Intervener.
• Court: Washington Supreme Court

74 P.2d 490

193 Wash. 41

FINDLEY et ux. v. FINDLEY et al. (FINDLEY, Intervener.

No. 26765.

Supreme Court of Washington

December 27, 1937

Department 1.

Appeal from Superior Court, Spokane County; Dolph Barnett, Judge.

Suit by Herbert S. Findley and another against Ida L. Findley, as administratrix of the estate of Clarence S. Findley deceased, and others, wherein Richard K. Findley intervened. From the judgment, the plaintiffs and the intervener appeal and the named defendant filed cross-appeals from judgment awarding plaintiff any relief, and from an order denying defendants' motion to dismiss the action.

Affirmed.

O. C Moore and R. P. Woodworth, both of Spokane, and D. V Morthland, of Yakima, for appellants.

Lee C. Delle and M. C. Delle, both of Yakima, for respondents.

SIMPSON, Justice.

This suit was instituted by plaintiffs on March 15, 1935, to set aside a deed of conveyance made by them to defendant Ida L Findley, in her capacity as administratrix of the estate of Clarence S. Findley, deceased. They also sought to have set aside an agreement concerning the disposition of certain real estate and personal property, which agreement was signed by themselves, Ida L. Findley and William J. Findley, all upon the ground of fraud and collusion practiced upon them by their own attorneys, defendants, and defendants' attorneys. Intervener, Richard K. Findley, joined with plaintiffs in asking that the deed and contract be set aside.

Plaintiffs, husband and wife, allege that on the 18th day of August, 1932, they signed a deed conveying to Ida L. Findley, as administratrix of the estate of her deceased husband, Clarence S. Findley, certain real estate in the city of Yakima, described as lot 4, block 11, of North Yakima, and that also on the same day and at the same place they entered into a contract with defendants Ida L. Findley and William J. Findley, by the terms of which all of the property belonging to the Clarence S. Findley estate was distributed between Herbert S. Findley, Ida L. Findley, and William J. Findley. Further, they allege that in the transactions just referred to they were represented by Cherry & Hull, attorneys of Yakima, and that Cherry & Hull were in collusion with defendants and defendants' attorneys in securing plaintiffs' signature to the deed and contract, and that because of such collusion plaintiffs were deprived of their just and legal rights and of the properties purported to be relinquished and conveyed by them.

Plaintiff Herbert S. Findley alleged that prior to and at the time he signed the deed and entered into the contract he was suffering from chronic melancholia to such an extent that his mentality, will power, and power of resistance were greatly impaired and reduced, so that he was not at that time capable of understanding and intelligently consummating business and legal transactions, and on that account was incapable of resisting the repeated requests and demands of defendants, their attorneys, and those of Cherry & Hull that he sign the deed and contract in question. It was further alleged that no consideration was received by plaintiffs for the execution of the contract and deed, and therefore they asked to have both annulled and set aside.

Intervener, Richard K. Findley, made allegations to the same effect as those made by plaintiffs. Defendants answered and denied all of the allegations of fraud and collusion. Then by way of trial amendment they alleged that Herbert Findley had, on the 8th day of September, 1932, deeded to his wife Anna the real property in controversy.

The court, after hearing the evidence, found that there was no fraud or collusion on the part of the parties involved, and refused to set aside the deed, but did set aside the contract for the reason that it was not signed by Richard K. Findley, one of the heirs of Clarence S. Findley.

From that judgment plaintiffs and intervener have appealed contending that the court erred in omitting and failing by its decree to award to plaintiffs and the intervener the full relief demanded by the prayers of their respective complaints, and in permitting the introduction of testimony intended to establish that a certain deed of real estate executed on May 12, 1931, from Clarence S. Findley to Herbert S. Findley and wife was, in fact, a conveyance in trust.

Respondent Ida L. Findley cross-appealed from the judgment awarding plaintiff any relief, and also from an order of the court denying defendants' motion to dismiss the action because of the fact that Herbert S. Findley had deeded the real estate in question to his wife Anna.

For convenience we refer to the parties by their first names.

We have read the record and summarize only that part necessary to a decision as follows: Just prior to May, 1931, Clarence S. Findley, a widower, lived in the city of Yakima where he owned certain personal property consisting of bonds, household goods, and an automobile; also lot 4, block 11, of North Yakima, upon which there was a building that was rented for business purposes. He had a brother Herbert living at Cheney, a brother William living in California, and a half-brother Richard, who lived in Texas. Clarence was very friendly with his brother Herbert. He visited with him, corresponded with him, and had a joint safe deposit box in the Yakima First National Bank of Yakima, to which each had a key. About May 12, 1931, Clarence went to the office of A. C. Cherry, an attorney of Yakima, and asked him to prepare a deed conveying to Herbert the real estate situated in Yakima, telling the attorney that he, Clarence, was about to get married; that he was afraid the lady to whom he was to be married might be one of those who desired to marry him for his property; and that he wanted to make out the deed and leave it in the safe deposit box so that if any trouble arose between himself and his future wife, the deed could be delivered to Herbert. The deed was accordingly drawn, and attorney Cherry delivered it to Clarence. Herbert secured this deed and placed it on record; appellants claiming that it was delivered to them by Clarence and respondents contending that Herbert took it from the safe deposit box without the knowledge or consent of Clarence. On May 14, 1931, Clarence was married to Ida L. Taylor, each of them at that time being approximately sixty years of age. They lived together as husband and wife until July 16, 1931, when Clarence went to Seattle, stayed for a while, returned on July 28, 1931, but left again for a trip into the mountains with his brother Herbert. He did not return for some time, and on November 21, 1931, his wife Ida secured an interlocutory decree of divorce, which was never made final for the reason that they became reconciled shortly after Christmas in 1931. Clarence died on March 10, 1932, and his widow Ida was appointed administratrix of the estate two days thereafter.

A few days prior to his death, Clarence talked with attorney Cherry saying that if anything happened to him, Clarence, that Cherry should telephone to his brother Herbert at Cheney. Acting upon these instructions, Mr. Cherry did telephone to Cheney immediately after hearing of the death of Clarence and was advised that Herbert was already on his way to Yakima. Mr. Cherry waited for Herbert, meeting him at the railway depot at approximately 2 o'clock on the morning of March 11th. They then went to Mr. Cherry's office and talked over the situation until morning. Early in the morning Miss Hull, partner of Mr. Cherry, arrived and they prepared a petition for the appointment of Herbert as executor of his brother's will. The will was never found, so the petition was not filed. Miss Hull and Herbert then went to the bank and got certain papers from the safe deposit box, which had been rented jointly by Clarence and Herbert. Herbert contended that there was nothing in this box other than...