In re Brenchley's Estate

• Decision Date: 09 May 1917
• Docket Number: 13760.
• Citation: 164 P. 913,96 Wash. 223
• Court: Washington Supreme Court
• Parties: In re BRENCHLEY'S ESTATE. v. BRENCHLEY. BRENCHLEY et al.

164 P. 913

96 Wash. 223

In re BRENCHLEY'S ESTATE.

BRENCHLEY et al. v. BRENCHLEY.

No. 13760.

Supreme Court of Washington

May 9, 1917

Department 2. Appeal from Superior Court, Lincoln County; Joseph Sessions, Judge.

Action by William H. Brenchley and Lester Brenchley against Elizabeth Brenchley, administratrix of Richard Brenchley deceased. From the judgment, plaintiffs appeal. Affirmed.

W. E Southard, of Wilson Creek, for appellants.

F. K P. Baske and M. E. Jesseph, both of Davenport, for respondent.

MOUNT J.

In this action the appellants seek to recover all the property left by their deceased father. On a trial of the case below, the court awarded one-half of the property to the appellants and one-half to the respondent. The facts are not in dispute.

On November 16, 1888, Richard Brenchley, now deceased, secured, in this state, a divorce from his then wife. He had two sons by that marriage. These two sons are the appellants in this case. On December 3, 1888, Richard Brenchley was married, in regular form, to the respondent. At the time of the marriage, respondent knew that Mr. Brenchley was divorced; but she was not informed of the date of the decree, and never knew there was any question of the legality of the marriage until this action was begun. She lived with Mr. Brenchley, in Lincoln county in this state, from the time of the marriage, in 1888, until his death, which occurred in July, 1914. The property in dispute was acquired jointly by respondent and her husband, Richard Brenchley, between the date of the marriage and the date of his death. At the time of his death, the property consisted of real property of the value of $5,500, and personal property of the value of about $900. It all stood in the name of Mr. Brenchley. The appellants contributed in no wise to the acquisition of the property. They did not live with their father, but lived in another state.

Under these facts the trial court was of the opinion that the property being acquired by the joint efforts of Mr. and Mrs. Brenchley, even though the marriage was void by reason of the fact that it was contracted within six months after the decree of divorce from Mr. Brenchley's first wife was rendered, still respondent was entitled to one-half of the property so acquired.

It is argued by the appellants, first, that the marriage was void, because it was contracted within six months after the decree of divorce between Mr. Brenchley and his first wife. This position may be conceded, and we shall notice it no further.

It is next argued by the appellants that, bacause the marriage was void, the property acquired by Mr. Brenchley was his separate property, in which Mrs. Brenchley had no interest. This argument is based largely, if not entirely, upon decisions of this and other courts to the effect that, where there is no contract of marriage, or where the contract is a meretricious one, the property acquired during the relation belongs to the one acquiring it. The facts in this case are conclusive that the contract of marriage was not meretricious, but was entered into, and kept, in good faith by both parties. The evidence conclusively shows that the respondent, when she married Mr. Brenchley, knew that he had been divorced. She did not know the time of his divorce, and she did not know that the laws of this state prohibited marriage within six months after a decree of divorce. She came to this state a few months before the marriage. There is no evidence that Mr. Brenchley actually knew of the statute prohibiting marriage within six months after a decree of divorce. But even if he knew, or may be presumed to have known, that fact, the result would be the same, for they lived together in the utmost good faith, each contributing to the accumulation of the property now in dispute. The record shows that the respondent kept boarders, kept a lodging house, was a nurse and midwife, and contributed her earnings to the payment of the obligations which purchased the property. Under these facts, it is clear that she is at least entitled to one-half of the property, which the court awarded her, notwithstanding the fact that the marriage was void. In the case of Buckley v. Buckley, 50 Wash. 213, 96 P. 1079, 126 Am. St. Rep. 900, this court said:

'Where a

...