Harvey v. Pocock

• Decision Date: 29 August 1916
• Docket Number: 13301.
• Citation: 92 Wash. 625,159 P. 771
• Parties: HARVEY v. POCOCK.
• Court: Washington Supreme Court

159 P. 771

92 Wash. 625

HARVEY v. POCOCK.

No. 13301.

Supreme Court of Washington

August 29, 1916

Department 2. Appeal from Superior Court, Whitman County; R. L McCrockey, Judge.

Action by Florence Harvey, individually and as executrix and sole legatee of the estate of Elizabeth M. Harvey, deceased against Sarah Pocock, as administratrix of the estate of B F. Harvey, deceased. Judgment for defendant dismissing the action, and plaintiff appeals. Reversed and remanded.

A. O. Colburn, of Spokane, for appellant.

Neill & Burgunder, of Colfax, for respondent.

PARKER J.

The plaintiff seeks recovery from the estate of her deceased father, B. F. Harvey, of the sum of $2,500, which she claims as the share of her deceased mother's interest in the community property of her father and mother left in his possession undisposed of by the decree of divorce which dissolved their marriage. The defendant's demurrer to the complaint being by the superior court sustained, and the plaintiff electing to stand upon her complaint and not plead further, judgment of dismissal was rendered against her, from which she has appealed to this court.

The complaint, omitting formal parts, reads as follows:

'Plaintiff alleges that she is the sole daughter of Elizabeth M. Harvey, deceased, and B. F. Harvey, deceased; that her father, B. F. Harvey, died prior to the time of her mother's death leaving an estate of the value of approximately $15,000, and a will by the terms of which certain legacies were given and the defendant, Sarah Pocock, was made sole residuary legatee. Plaintiff further alleges that she is the sole legatee and executrix of the last will of Elizabeth M. Harvey, and Sarah Pocock is the administratrix of the said B. F. Harvey's estate, and neither estate has yet been closed.

'Prior to the death of said B. F. Harvey and Elizabeth Harvey, to wit, on the 6th day of February, 1913, they were divorced from each other by decree of the above-entitled court. By said decree certain community property belonging to the parties was brought into court by the pleadings and divided. There was certain other property, however, belonging to the community in the possession and control of said B. F. Harvey which was not brought into court in the said divorce proceedings nor divided by the court. The said property was the sum of $3,000 in cash and a $2,000 mortgage. The property was sequestered by said B. F. Harvey and purposely withheld from the court so that it would not be divided, and said B. F. Harvey converted said money and property to his own use and had the sole use and benefit thereof. The said property after said divorce became the common property of said B. F. Harvey and Elizabeth M. Harvey, and said Elizabeth M. Harvey was therefore the rightful owner of one-half thereof, to wit, the sum of $2,500.

'The time within which creditors were to present their claims against the estate of B. F. Harvey, deceased, expired on July 23, 1915. Prior to that time the plaintiff caused to be presented to the said Sarah Pocock, as administratrix of the said estate, a claim duly verified according to the law claiming the sum of $1,500 as a lawful charge against said estate by reason of the facts hereinbefore alleged. At that time plaintiff had no knowledge or information with regard to any sum sequestered as above alleged except the sum of $3,000, and did not discover the fact of the existence of the $2,000 additional until on or about August 5, 1915. Said claim was rejected in writing by said Sarah Pocock and was filed in the said probate proceedings on August 21, 1915. Three months have not yet elapsed since said rejection of claim.'

The theory upon which the learned trial court seems to have sustained the demurrer and upon which the argument of counsel for respondent proceeds is that the decree in the divorce action became a final adjudication of the community property rights of Mrs. Harvey, estopping her from thereafter claiming any of the personal community property remaining in the possession of her husband, even though such property was not brought into the divorce action or specifically disposed of by the decree of divorce.

It is to be noted that the complaint does not allege that there was any allegation in the complaint in the divorce action or adjudication in the decree in that action that there was no other community property than that disposed of specifically by the decree, but the allegation is that this alleged community property 'was not brought into court in said divorce proceedings nor divided by the court.' This, we think, negatives the idea that there was any affirmative adjudication, or any occasion therefor, that there was no other community property than that specifically brought into the divorce action and disposed of by the decree therein.

It has become the settled law of this state that under such a state of facts the community property undisposed of by the decree of divorce remains undisturbed so far as the respective interests of the members of the community therein is concerned, and that either of them may thereafter enforce their rights in such property by another action. Such property becomes common property instead of community property after the dissolution of the community by the decree of divorce. Ambrose v. Moore, 46 Wash. 463, 90 P. 588, 11 L. R. A. (N. S.) 1103; Graves v. Graves, 48 Wash. 664, 94 P. 481; James v. James, 51 Wash. 60, 97 P. 1113, 98 P. 1115; Barkley v. American Savings Bank & Trust Co., 61 Wash. 415, 112 P. 495; Hicks v. Hicks, 69 Wash. 627, 125 P. 945; Schneider v. Biberger, 76 Wash. 504, 136 P. 701.

Counsel for respondent, while conceding this to be the general rule ingeniously argue that personal property remaining in the possession of one of the spouses at the time of the divorce decree, the pleadings and the decree both being silent as to the disposition of such property, should constitute an exception to this general rule. The argument seems to be that, because this alleged community property in the possession of Mr. Harvey could have been brought into the divorce proceedings and specifically disposed of by the decree, appellant, as the successor in interest of Mrs. Harvey, is thereby estopped from now questioning the right of his administratrix to such property. We have at least one decision of this court which plainly makes the general rule above noticed applicable to personal property remaining in the possession of one of the spouses and undisposed of by the...