Hamlin v. Hamlin

• Decision Date: 24 June 1910
• Citation: 59 Wash. 182,109 P. 362
• Court: Washington Supreme Court
• Parties: HAMLIN v. HAMLIN et al.

109 P. 362

59 Wash. 182

HAMLIN v. HAMLIN et al.

Supreme Court of Washington

June 24, 1910

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Edward H. Hamlin against James W. Hamlin and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Frank S. Griffith, for appellants.

McClure & McClure, for respondent.

CROW J.

This action was commenced by Edward H. Hamlin against James W Hamlin, Mrs. S. A. Hanna, Frank R. Atkins, and Mary C Atkins, his wife, to establish a trust and recover plaintiff's interest therein. In 1876, William H. Hamlin and Marie Hamlin, both now deceased, were intermarried in this state. William H. Hamlin had by a former marriage one son, the defendant James W. Hamlin, and Marie Hamlin had by a former marriage one son, the plaintiff, who adopted the name of Hamlin. William H. and Marie Hamlin acquired considerable land in Snohomish county as their community property. On July 13, 1899, Marie Hamlin conveyed all of this land, except one tract known as lot 3, to her husband by warranty deed, in consideration of love and affection. The plaintiff alleged that Marie Hamlin was then in feeble health; that her deed absolute in form, was in fact made to William H. Hamlin in trust, he to have use, possession, and right to sell during his lifetime for his maintenance and support, and the remainder of the land, with the proceeds, issues and profits thereof, to be given at his death, one-half to the defendant James W. Hamlin and one-half to plaintiff; that Marie Hamlin died on October 8, 1890; that William H. Hamlin accepted the trust, entered into possession and acquired other lands with the rents, issues, and profits; that he from time to time disposed of portions of the land so held in trust by him; that prior to January 10, 1906, he conveyed other portions to one John W. Lyke, as security for a loan; that on January 10, 1906, he, by John W. Lyke as his attorney in fact, contracted to sell to the defendant Frank R. Atkins certain of the land including said lot 3; that plaintiff, at William H. Hamlin's request, conveyed his interest in lot 3 to John W. Lyke, it being then agreed that $2,300 with interest from then agreed that should be paid to him by William H. Hamlin out of the proceeds of the sale, and that all of the remainder of the lands theretofore conveyed by Marie Hamlin with the proceeds thereof, should be held in trust by William H. Hamlin for the plaintiff and the defendant James W. Hamlin, share and share alike, and that all of William H. Hamlin's estate remaining at his death, after payment of plaintiff's $2,300 note, should be equally apportioned to plaintiff and James W. Hamlin; that on April 6, 1906, John W. Lyke and wife, at William H. Hamlin's request, conveyed the title to the real estate held by John W. Lyke to the defendant Frank R. Atkins, who paid $11,182.50 in cash therefor, and with his wife, Mary C. Atkins, executed and delivered to John W. Lyke their note for $10,117.50, secured by mortgage on the real estate conveyed, and that John W. Lyke thereafter transferred said note and mortgage to William H. Hamlin. The plaintiff further alleged:

'15. That thereafter and on, to wit, the 18th day of November, A. D. 1907, being then mortally sick and in contemplation of death, Wm. H. Hamlin did assign, transfer, and set over unto the defendant S. A. Hanna, the said promissory note dated April 3, 1906, made by the said Frank R. Atkins and Mary Churchill Atkins, his wife, together with the mortgage securing the same hereinabove described and mentioned, and did by his deed of warranty in writing convey and warrant to the defendant S. A. Hanna, that portion of said above-described real estate held by the said Wm. H. Hamlin in trust, as aforesaid, and particularly described as follows, to wit: (Description.)

'16. That the assignment of said note and of said mortgage and the conveyance of said land to the said S. A. Hanna were so made by the said Wm. H. Hamlin in trust that the said S. A. Hanna should collect the principal and interest due and to become due upon said promissory note hereinabove mentioned and made by the said Frank R. Atkins and Mary Churchill Atkins, his wife, to the said John W. Lyke, and by the said John W. Lyke assigned to the said Wm. H. Hamlin and to apply, divide, and distribute the proceeds of said note and said land as follows: (1) That the said S. A. Hanna should pay to herself a reasonable compensation for administering said trust; (2) that the said S. A. Hanna should pay therefrom to plaintiff the said sum of twenty-three hundred dollars ($2,300) and interest above mentioned; (3) that the said S. A. Hanna should divide all the rest, residue, and remainder of said trust estate between the plaintiff and the defendant, James W. Hamlin.

'17. That thereafter, and on or about the 1st day of December, 1907, the said Wm. H. Hamlin died intestate, leaving surviving him no wife and no child or children other than the said James W. Hamlin.

'18. That the said S. A. Hanna accepted said trust and took possession of all of the property of every kind and nature left by the said Wm. H. Hamlin and all of which was held by the said Wm. H. Hamlin as trustee, as hereinabove alleged, including the promissory note, mortgage, and real estate mentioned and described in paragraph 15 hereof and ever since has held, and does now hold, and possess the same, in trust for the purposes above alleged and not otherwise.

'19. That the said S. A. Hanna does now deny that she holds said property in trust for this plaintiff in any particular or to any extent other than to pay to this plaintiff the said sum of twenty-three hundred dollars ($2,300) and interest, and has refused, and does now refuse, to acknowledge the right of plaintiff to any right, title, or interest, in, or to, said note, mortgage and lands, or any part thereof, and that the said S. A. Hanna is threatening to, and will, as plaintiff believes, collect the amount now due upon said note, and that she will pay over the whole of the proceeds thereof to the said James W. Hamlin, excepting only the said sum of twenty-three hundred dollars ($2,300) and interest.'

In addition to other equitable relief, plaintiff asked that S A. Hanna be decreed a trustee; that her reasonable expenses be ascertained and paid; that she be directed to pay plaintiff's $2,300 note, and that the remainder of the money to be collected by her on the Atkins note, and all the real estate conveyed to her be transferred to plaintiff and James W. Hamlin, share and share alike. James W. Hamlin and Mrs. S. A. Hanna answered separately. The defendant James W. Hamlin with other affirmative defenses alleged that Marie Hamlin never made or executed any writing whereby she imposed any trust upon the real estate conveyed by her, and that any trust claimed by plaintiff to have been imposed on any of the real estate is an express trust resting in parol only. This allegation being admitted, the plaintiff, on the trial, abandoned any attempt to establish any express trust imposed upon the...