In re Deschamps' Estate

• Decision Date: 23 January 1914
• Citation: 77 Wash. 514,137 P. 1009
• Court: Washington Supreme Court
• Parties: In re DESCHAMPS' ESTATE.

137 P. 1009

77 Wash. 514

In re DESCHAMPS' ESTATE.

Supreme Court of Washington

January 23, 1914

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Proceeding for final distribution and settlement of the estate of Anna Deschamps, deceased. From a decree awarding certain real property to a daughter, the surviving husband appeals. Affirmed.

McCafferty Robinson & Godfrey, of Seattle, for appellant.

Scott Calhoun, of Seattle, for respondent.

CHADWICK J.

Mrs Deschamps died on the 24th day of December, 1909, leaving a will by the terms of which she devised and bequeathed to Mrs. Georgette McCabe, a daughter by a former husband, all of her estate except certain real property situated in Pierce county, which she willed to her husband, Samuel Deschamps, upon condition that he relinquish any claim which he might have in the estate devised to her daughter. The will was duly admitted to probate and pronounced valid. Deschamps was ordered to elect whether or not he would abide by the provisions of the will. In compliance with his order, Deschamps filed a notice in which he declined to accept under the will and stated his intention of retaining his separate and community interest in the property so devised. He also filed objections and exceptions to the final account of the executor, which were overruled and denied. On April 23, 1913, the court entered a decree awarding the real property to the daughter Mrs. McCabe. From an order overruling objections and exceptions to the final account, this appeal is taken.

The only question for our determination is whether or not the real property in controversy is community property. Appellant bases his claim upon the facts that in the deed of conveyance he is named as joint grantee; that part of the consideration was his separate property; and that the property was acquired during the time he and the deceased were living together.

At the time of her marriage, Mrs. Deschamps was the owner of the Olympic Apartments, in Seattle, Wash. Appellant claims that they were in bad condition, and that he paid out some of his own money in repairs and up-keep. This would not give him a community interest. The status of the property was fixed at the time it was purchased. Katterhazen v. Meister, 134 P. 673. It was in Mrs. Deschamps, and unless divested by deed, by due process of law, or the working of an estoppel, must remain there, subject to a possible equity under the case of Heintz v. Brown, 46 Wash. 387, 90 P. 211, 123 Am. St. Rep. 937, as distinguished in Dobbins v. Dexter Horton & Co., 62 Wash. 423, 113 P. 1088, the United States Fid. & Guar. Co. v. Lee, 58 Wash. 16, 107 P. 870, in which case the court said: 'We do not desire to extend the rule in that case.' The amount advanced, if any, was small, and entirely disproportionate to the value of the property, and it nowhere appearing that it was advanced with the understanding on the part of either husband or wife that it carried an interest in the property, it ought to be disregarded under the rule of Worthington v. Crasper, 63 Wash. 380, 115 P. 849.

Mrs. Deschamps traded a one-half interest in the apartments to one Grow for the property in controversy, consisting of two lots and a dwelling house, described as lots 31 and 32, block 174, Gillman's addition to Seattle. This property was mortgaged for $2,286.70, which the grantees assumed. The other half interest in the Olympic Apartments was traded for a farm in Pierce county, also mortgaged. This mortgage was later foreclosed, and with this property we are not concerned. In both these transactions appellant is named as joint grantee. Appellant says that he gave Grow, as a part consideration for the Gillman addition property, mining stock worth $600 and about $100 in cash, and that he paid out of his own money over $200 in installments to be applied on the mortgage. The stock was not shown to have had any value; it had never paid any dividends. The grantor does not seem to have been sufficiently impressed with its value to consider it a factor in the purchase price. While appellant's testimony as to the payments made by him is undisputed, it is also unsupported. It is probable that appellant furnished the money to make six payments of $35.17 each, as he claims; no receipts were offered in evidence. Assuming, however, that appellant did expend the sums claimed to have been spent, the total amount would not exceed $500. This, under the authorities cited, would not give him a community interest in the property. The conduct of the husband after the death of his wife is such as to warrant a belief that he did not at the time regard the property as his own. The beneficiary under the will met all payments due on the mortgage and in the way of taxes and assessments. He allowed her to proceed apparently on the theory that the property was the sole and separate property of her mother and that she was the sole devisee.

Appellant contends that he is the owner of a community interest in virtue of the deeds. He is named as a common grantee. The testimony upon which the husband depends to show his interest in the property as he claims it to be evidenced by the deed is as follows: 'Q. Do you...