In re Binge's Estate

• Decision Date: 26 September 1940
• Docket Number: 27920.
• Citation: 105 P.2d 689,5 Wn.2d 446
• Court: Washington Supreme Court
• Parties: In re BINGE'S ESTATE. v. MUMM et al. BINGE

105 P.2d 689

5 Wn.2d 446

In re BINGE'S ESTATE.

BINGE v. MUMM et al.

No. 27920.

Supreme Court of Washington

September 26, 1940

Department 1.

Proceeding in the matter of the estate of William F. P. Binge, deceased wherein Ida R. Binge, individually and as administratrix of the estate of William F. P. Binge, deceased, filed a petition praying that all of the estate be distributed to her as deceased's surviving spouse, to which petition Hans Mumm Jr., and others filed objection. From a decree, Ida R. Binge appeals, and Hans Mumm, Jr., and others cross-appeal.

Affirmed on the appeal, and reversed on cross-appeal, with direction.

Where the estate of an intestate consisted of personalty of the value of $2,284.38, and realty which was his separate property, a family allowance of $125 monthly to widow until final distribution of the estate was reasonable. Rem.Rev.Stat. § 1476.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

James A. Brown and Lester P. Edge, both of Spokane, for appellant.

Randall & Danskin, of Spokane, for respondents.

MILLARD Justice.

William F. P. Binge died intestate and without issue. Ida R. Binge filed a petition in the superior court for Spokane county, in the cause in which her late husband's estate was being probated, praying that all of the estate be distributed to her as Binge's surviving spouse. To that petition the nephews and nieces--the sisters and brothers of Binge predeceased him--of the deceased filed objections. Trial of the issue thus made culminated in the entry of a decree of distribution under which certain real estate, as the separate property of the deceased, was divided; a one-half interest therein was awarded to the widow and the other half interest was awarded to the nephews and nieces, collectively who objected to the widow's petition. The widow appealed from that part of the decree adjudging three parcels of land, hereinafter described, to be separate property of the deceased instead of community property of the marital community of the deceased and his surviving wife. The objecting nephews and nieces cross-appealed from that portion of the decree awarding the widow an $800 interest in certain separate real property of the deceased, the distribution to the widow of all personal property belonging to the estate, and the family allowance to the widow of $125 monthly from October 1, 1939, until final distribution of the estate.

The facts are as follows:

In 1880, at which time he was twenty-one years old and possessed of an inheritance of $1500, William F. P. Binge, a German immigrant, arrived in the United States. He was accompanied by two other German immigrants, his sister and her husband (Hans Mumm), who settled on land near Plaza. Shortly after his arrival in this country Binge, who had served his apprenticeship as a miller in Germany, was employed in a flour mill in Spokane. He resigned from that employment in 1892 to become the agent of the Farmers' Warehouse at Plaza. His work consisted of buying and selling wheat, for which he received compensation of $60 monthly.

In 1894 Binge and one Zach Stewart, as partners, bought one warehouse and leased another. This partnership, which was concluded in 1903 when the partners sold their business, was engaged extensively in warehousing and in the buying and selling of grain at Plaza. Stewart testified that the warehouse purchased by the partnership cost 'a few hundred dollars; less than $1,000, I think.' He further testified that when the business was sold he received less than $1,000 as his share of the proceeds of the sale; and that from 1894 until dissolution of the partnership Binge did not obtain money from any source other than income from the business in which the partners were engaged.

Binge was efficient, energetic and frugal. One economy of this man was to sleep in the warehouse when he was agent for the Farmers' Warehouse at Plaza. Beginning in the year 1903 Binge commenced to acquire wheat land. Up to the time of his marriage in 1913 he had purchased wheat land in Canada and in Eastern Washington and he also held under lease more than one thousand acres of wheat land in Spokane county. All of these farms were adequately equipped with horses and machinery purchased by Binge. When Binge and Stewart dissolved their partnership Binge leased the 'Marshall Filed' land of four hundred acres adjoining the town of Plaza. He continuously farmed this tract under a lease until he purchased same in 1915.

On October 29, 1913, Binge, who was then fifty-four years old, married appellant, who was thirty-three years old. This was his first marriage and her second marriage. No children were born of this union. Appellant testified that she had approximately $1,200, which she turned over to Binge when she married him in 1913. In 1926 she received from her father's estate $1,000 which she also gave to her husband for use of the marital community. Appellant also testified that she contributed to the community for a period of four to five years her earnings from teaching music to a few pupils.

At the time of his marriage to appellant Binge was farming wheat land both as a landlord and as a tenant. He was also interested in a warehouse. Probably one year, or less, after the marriage of decedent to appellant, the former discontinued active work and confined his efforts to supervision of his farms on none of which the marital community resided. There is no showing that Binge had any earnings from his personal labor after his marriage. He performed no work other than that of looking after his lands and collecting the rentals from lands leased by him to certain tenants; that is, so far as is disclosed by the record Before us, Binge had no income from any source other than from the lands, which are the subject matter of this controversy, and from other lands also owned by him.

The history of the acquisition of the three tracts, which appellant insists are community property and claimed by respondents to be the separate estate of William F. P. Binge, who died September 20, 1938, is as follows:

1. On May 6, 1903, Binge and A. E. Rogers entered into a contract to purchase from the state the northeast quarter of section 16, township 21 north, range 44, E.W.M., Spokane county. Of the purchase-price of $6,824 the purchasers paid $920 at the time the contract was executed.

Rogers assigned his interest in the contract to Binge, November 30, 1903. The interest on the principal was paid annually on this contract but nothing was paid on the principal, except the down payment of $920. Until March 1, 1917, when $656 was paid. Thereafter the payments on the principal were made $1,312, March 5, 1918; $1,312, February 2, 1919; $656 March 3, 1920; 1920; 1920; $656, March 3, 1926; and the final payment of $1,312, February 24, 1927. On March 1, 1927, a deed to the land was obtained by Binge from the state. All of the installments on the principal, except the first in the sum of $920, at the time of the execution of the contract, were paid after the marriage of Binge to appellant.

2. In 1895 Binge purchased the southeast quarter of section 13, township 21, range 43, E.W.M., Spokane county. He sold this land thereafter to a third person who lost it on a mortgage foreclosure, Binge then purchased this quarter section from the mortgage company January 21, 1908, as evidenced by deed to him executed on that date. This land was acquired by binge five years prior to his to appellant.

3. On November 1, 1915, (two years after his marriage to appellant) Binge entered into a contract to purchase a tract of land, known as the 'Marshall Field' land, which Binge held under lease executed prior to his marriage, as related above. Of the purchase-price of $30,000 the amount of $5,000 was paid at the time of the execution of the contract. A second payment of $5,000 was made November 1, 1916; and on October 18, 1917, two mortgages on this land--one for $9,000 and one for $11,000--were executed by decedent and appellant to secure payment to a Mr. Baker of a loan of $20,000. This money was used to pay the balance due on the contract, whereupon deed covering this land was executed and delivered to Binge. Neither in the contract of purchase nor in the deed that was delivered upon payment of the purchase price does the name of appellant appear as one of the purchasers. The mortgage for $9,000 was released October 7, 1919. The mortgage in the sum of $11,000 was released April 24, 1931. On May 11, 1931, decedent and appellant executed a mortgage on this 'Marshall Field' land, to secure payment to Hans Mumm of a loan of $5,000. That mortgage is still unpaid.

The parties do not agree as to the source from which was obtained the initial payment of $5,000 on this 'Marshall Field' land. October 25, 1915, decedent borrowed from Hans Mumm $3,000, to secure the payment of which he executed a mortgage in favor of the lender on the southeast quarter of section 13 (the second tract decribed above), which was separate property acquired by decedent in 1908. That mortgage was released June 16, 1923. On October 27, 1915, decedent borrowed from Hans Mumm $2,000. Binge executed a mortgage on the southeast quarter of section 13 (decedent's separate property) to secure payment of this loan. This mortgage was released November 4, 1929. These two loans, aggregating $5,000, were made only a few days prior to purchase of the 'Marshall Field' land.

Appellant testified that of the initial payment of $5,000 November 1 1915, on the 'Marshall Field' land, $3,000 was a loan, payment of which was secured by mortgage on the southeast quarter of section 13 described in the preceding paragraph; that $800 of the first payment was the amount that was remaining from the proceeds of...