In re Brown's Estate

• Decision Date: 05 April 1923
• Docket Number: 17765.
• Citation: 214 P. 10,124 Wash. 273
• Court: Washington Supreme Court
• Parties: In re BROWN'S ESTATE. v. SCOFIELD et al. BROWN

214 P. 10

124 Wash. 273

In re BROWN'S ESTATE.

BROWN v. SCOFIELD et al.

No. 17765.

Supreme Court of Washington

April 5, 1923

Department 1.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

In the matter of the estate of F. R. Brown, deceased. On claim of Chole D. Brown for a distribution of the assets of the estate as community property, opposed by George Scofield and another, as executors, and others. From a judgment directing distribution of the estate as separate property, Chloe D Brown appeals. Modified and affirmed.

R. J Meakin and W. G. McLaren, both of Seattle, and P. M. Troy, of Olympia, for appellant.

Poe Falknor & Falknor, of Seattle, and Frank C. Owings, of Olympia, for respondents.

MACKINTOSH, J.

The decedent, Fred. R. Brown, was married to the appellant, Chloe D. Brown, on November 15, 1902, he at that time being about 53 years of age, and they remained husband and wife until his death on November 27, 1918. A will was left, by the terms of which Brown made several specific bequests, and the balance of his property was left to residuary legatees. The matter presented by this appeal arises on a petition of one of the legatees, who requested the determination of the status of the property of the estate. The widow appeared and claimed the entire estate is community property, and requested that one-half thereof be distributed to her. The executors named in the will take the position that all of the property of the estate is separate property and should be so distributed. The superior court determined the controversy in conformity with the position of the executors. The widow has appealed.

At the time of Brown's marriage, or shortly prior thereto, he was the owner of real and personal property which was of the value of $69,256.67, and from this property, either immediately before or a very short time after his marriage, cash was received in the amount of $77,881.67. After marriage he entered into a number of business transactions which, on account of their profitable nature, materially increased his assets. He acquired all of the stock of a corporation then known as the New Olympia Hotel Company, the name of which was afterwards changed to that of Semper-Klale Investment Company, and through this company he bought and sold property, borrowed money, and generally conducted his business during his lifetime. He also acquired, through an original investment of $5,000, stock in the Case Shingle Company and from the dividends on this stock secured a one-half interest, or approximately that, in the Case Shingle & Lumber Company, and through the sale of the stock of these two Case Companies acquired practically all of the stock of the LeBamm Mill Company, and at the time of his death his estate consisted of the following property:

                            1. Real estate 
                          
                            $ 1,600 00
                          
                            2. Bank certificates ............................
                          
                            9 10
                          
                            3. Cash on hand .............................
                          
                            6,697 17
                          
                            4. Policy of life insurance, payable to
                          
                            the estate ..............................
                          
                            4,000 00
                          
                            5. United States Liberty Bond .................
                          
                            940 00
                          
                            6. Promissory note of May Tunin ...............
                          
                            350 00
                          
                            7. Promissory note of Semper-Klale
                          
                            Investment Co...........................
                          
                            60,732 13
                          
                            8. Promissory note of Semper-Klale
                          
                            Investment Co............................
                          
                            5,000 00
                          
                            9. Semper-Klale Investment Co. stock ........
                          
                            7,774 00
                          
                            10. Open account due from Semper-Klale
                          
                            Co......................................
                          
                            17,278 74
                          
                            11. Promissory note N.E. Ayer .............
                          
                            125,000 00
                          
                            12. Promissory note LeBamm Mill Co...........
                          
                            40,000 00
                          
                            -----------
                          
                            $269,381 14
                          
                

The restatement of a few fundamental principles announced by this court in regard to the determination of the status of community or separate property will suffice to lay the foundation upon which to determine the matter at issue.

The presumption is that property acquired during coverture is community property. Yesler v. Hochstettler, 4 Wash. 349, 30 P. 398; O'Connor v. Slatter, 46 Wash. 308, 89 P. 885; Guye v. Guye, 63 Wash. 340, 115 P. 731, 37 L. R. A. (N. S.) 186; Plath v. Mullins, 87 Wash. 403, 151 P. 811; Volz v. Zang, 113 Wash. 378, 194 P. 409; and the burden is upon the preson claiming it to be separate property to establish that as its character. Guye v. Guye, supra.

The status of property is to be determined as of the date of its acquisition. Heintz v. Brown, 46 Wash. 387, 90 P. 211, 123 Am. St. Rep. 937; Worthington v. Crapser, 63 Wash. 380, 115 P. 849; Katterhagen v. Meister, 75 Wash. 112, 134 P. 673; In re Deschamps' Estate, 77 Wash. 514, 137 P. 1009; Morse v. Johnson, 88 Wash. 57, 152 P. 677; In re Mason's Estate, 95 Wash. 564, 164 P. 205; Union Sav. & Trust Co. v. Manney, 101 Wash. 274, 172 P. 251; Finn v. Finn, 106 Wash. 137, 179 P. 103; Folsom v. Folsom, 106 Wash. 315, 179 P. 847; Rawlings v. Heal, 111 Wash. 218, 190 P. 237; Halffman v. Halffman, 113 Wash. 320, 194 P. 371; Dart v. McDonald, 114 Wash. 448, 195 P. 253; In re Sanderson, 118 Wash. 250, 203 P. 75; Jacobs v. Hoitt, 119 Wash. 283, 205 P. 414.

This rule is equally true with regard to personal property as with real property. Jacobs v. Hoitt, supra.

If property is once shown to have been separate property, the presumption continues that it is separate until overcome by evidence. Guye v. Guye, supra.

Separate property continues to be separate through all its changes and transitions, so long as it can be clearly traced and identified, Denny v. Schwabacher, 54 Wash. 689, 104 P. 137, 132 Am. St. Rep. 1140; In re Deschamps' Estate, supra; Dart v. McDonald, supra; Merrick v. Appenzeller, 115 Wash. 181, 196 P. 629.

The rents, issues, and profits of separate property remain separate property and profits resulting from money borrowed on separate credit are separate property. Finn v. Finn, supra; Jacobs v. Hoitt, supra.

Separate property may lose its identity as such by being consolidated with community property. Volz v. Zang, supra.

Bearing these principles in mind, it only becomes necessary to apply them to the different items that appear in the inventory of this estate.

In relation to items 1, 2, 3, 5, and 6, the testimony shows that all this property was acquired during coverture, and there is an absence of proof concerning its origin or the source of the money with which it was procured. The presumption therefore attaches that it is community property, and there being no evidence to overcome that presumption, we come to the conclusion that this is community property, and, as such, the appellant is entitled to her community interest therein. Jacobs v. Hoitt, supra. In regard to item 4, being the proceeds of a life insurance policy, payable to the estate, no proof was introduced, and the presumption must be conclusive that it is community property. As was said in Succession of Buddig, 108 La. 406, 32 So. 361:

Syllabus: 'A policy of life insurance issued to a married man during the existence of the community and made payable to his executors, administrators, and assigns, falls into the community and not his separate estate, on the dissolution of the former by his death.' * * *

From opinion: 'The husband is the head and master of the community.' The assured having made the policy payable to an executor, administrator or assigns, it is, in our view, as if it had been made payable to himself. 'He has no right to transact so as to build up a separate estate to the disavantage of the community. As to him, primarily, all the

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