Gainsburg v. Garbarsky, 22390.

• Decision Date: 01 July 1930
• Docket Number: 22390.
• Citation: 289 P. 1000,157 Wash. 537
• Parties: GAINSBURG v. GARBARSKY.
• Court: Washington Supreme Court

289 P. 1000

157 Wash. 537

GAINSBURG v. GARBARSKY.

No. 22390.

Supreme Court of Washington

July 1, 1930

Department 2.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by Lillian M. Gainsburg against Rose Leff Garbarsky, as administratrix with the will annexed of the estate of Isadore M. Leff, deceased. From a judgment for plaintiff, defendant appeals, and because of insufficiency of the amount plaintiff also appeals.

Affirmed.

S. Edelstein, of Spokane, for appellant.

Robert Weinstein and L. F. Callahan, both of Spokane, for respondent.

FRENCH J.

Respondent brought this action against the appellant, Rose Leff Garbarsky, as administratrix with the will annexed of the estate of Isadore M. Leff, deceased, to recover $5,050 claimed to be due as support money awarded for the care of Janet Leff, she being the minor child of respondent and Isadore M. Leff, deceased.

The complaint alleges the marriage of respondent and Isadore M Leff; the birth of their child, Janet; alleges that the child was at the time of the commencement of the action thirteen years of age, in the custody of, and solely dependent upon respondent for her maintenance and support. It is further alleged that in April, 1921, decedent, Isadore M. Leff, and respondent were divorced in the state of Ohio, and it is alleged that the custody of the child was awarded to respondent, and that the deceased, Isadore M. Leff, was ordered to pay the sum of $50 per month payable monthly for a period of ten years from and after the first day of February, 1921, for the maintenance and support of such minor. It is also alleged that in November, 1921, Isadore M. Leff died while a resident of Spokane county, Wash.; that appellant was duly appointed administratrix with the will annexed of his estate; that she duly qualified; that a claim was properly presented to said estate, disallowed, and that thereafter this action was commenced to recover the support money claimed to be due by virtue of such decree of divorce.

To this complaint an answer was filed making certain adminissions and denials, and pleading as a first affirmative defense that the plaintiff had no legal capacity to sue on the ground and for the reason that the claim presented was defective.

The second affirmative defense alleged that for a period of approximately three years the minor child in question had been in the custody and control of the deceased, and that during all that time he had had her sole care and had properly provided for her support during that entire time, and claimed a credit on such claim, providing the same was allowed, for the time when said child was in his care and custody.

For a third affirmative defense it was claimed that the money due for support subsequent to the death of the deceased for the remainder of the ten-year period was not such a claim as could be presented and enforced against the estate of the deceased.

For a fourth affirmative defese it was claimed that deceased had procured certain policies of life insurance in which he had named his minor child, Janet Leff, as beneficiary; that these life insurance policies aggregated an amount more than $10,000; that they would pay annual dividends to the extent of more than $350, and it was claimed that for that reason there could be no recovery.

For a fifth affirmative defense it was claimed that while the minor child of the parties was in the custody of the deceased respondent had obtained her possession; that the deceased thereafter instituted habeas corpus proceedings in the superior court of Spokane county to recover possession of the child; that thereafter it was agreed between the parties that the habeas corpus proceedings should be dismissed in consideration of respondent's releasing the decedent from all claims for payment for the support of the minor child.

The lower court sustained the demurrer as to the first, third, fourth, and fifth affirmative defenses, and the cause being tried before the court without a jury, judgment was awarded against the estate in the sum of $3,650. It will thus be seen that the trial court allowed appellant credit on the claim at the rate of $50 a month for a period of thirty-six months, during which time the evidence shows that the minor child was in the care, custody, and control of the decedent. Both parties to this action have appealed, it being the contention of the appellant that no judgment in any amount could be allowed, and it being the contention of the respondent that no credits should be allowed on the claim for the time during which the child was actually in the care and custody of, and supported by, the decedent.

The claim presented by respondent, and to which objection is made, is in words and figures as follows:

'In the Superior Court of the State of Washington in and for the County of Spokane.

' In the Matter of the Estate of Isadore M. Leff, Deceased. No. 22319.

'Creditor's Claim.

'Estate of Isadore M. Leff, Deceased, To Janet E. Leff, a Minor, Dr.

'Items.

'The claimant, a daughter of the deceased, now living with her mother (Mrs. Lillian Gainsburg), in the city of Chicago, State of Illinois, through a divorce proceeding that was instituted in Cleveland, Ohio, a certified copy of said final decree which is herewith attached, was awarded by said court, commencing February 1st, 1921, the sum of $50.00 per month for her support and maintenance; that no part of same has been paid, except the sum of $50.00, leaving a balance due and owing on said judgment of $3,650.00 at the time of death $3,650.00

And the further sum of $1,400 remaining unpaid 1,400.00

This claim is filed by Lillian Gainsburg for and on behalf of Janet E. Leff, her daughter, who is a minor, according to the terms of said decree.

'State of Illinois, County of Cook--ss.:

'Lillian Gainsburg, who is the mother of Janet E. Leff, a minor, being duly sworn, says that she is the creditor above named, that the amount of said claim, to-wit: the sum of $3650.00 and the further sum of $1400 remaining unpaid, is justly due said claimant, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of said affiant. Lillian Gainsburg

'Subscribed and sworn to before me this 17th day of June, 1929.

'Harry O. Rosenburg

'Notary Public in and for the State of Illinois, residing at Chicago.'

The certified copy of the judgment entered by the court of common pleas for Cuyahoga county, state of Ohio, was attached to the above claim and also to the complaint, and in so far as it is material to this cause reads as follows:

'On the 29th day of April, 1921, being a day in said April Term of Court. This day this cause came on to be heard on January 27, 1921, upon

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