In re Martin's Estate
| Decision Date | 05 November 1923 |
| Docket Number | 17922. |
| Citation | 127 Wash. 44,219 P. 838 |
| Court | Washington Supreme Court |
| Parties | In re MARTIN'S ESTATE. |
Department 2.
Appeal from Superior Court, Island County; Alston, Judge.
In the matter of the estate of Harry Martin, deceased. From an order awarding decedent's personalty to Myrtle Smitham as his executrix, Dora M. Martin, his widow and administratrix appeals. Affirmed.
Robert D. Hamlin, of Seattle, for appellant.
Griffin & Griffin, of Seattle, and C.J. Henderson, of Mt. Vernon, for respondent.
This is a contest over the right to administer upon the estate of Harry Martin, deceased.
Harry Martin and Dora M. Martin were, at the time of the death of Harry Martin, husband and wife. They had infermarried at Cashmere, in this state, on February 15, 1906. They lived together as husband and wife for a number of years, finally separating some time in March, 1920. The parties had then accumulated property of considerable value, both real and personal. At the time of the separation the parties divided their property between them. Mutual deeds were executed and exchanged to evidence the division of the real property, but no formal instrument seems to have been executed as to the personal property. Each of the parties, however, took possession of the party severally awarded, and held it as separate property up to the time of the death of Harry Martin, without let or hindrance by the other.
After the separation, Harry Martin removed to the western part of the state, finally taking up his residence in Oak Harbor Island county, at which place he was residing at the time of his death. Mrs. Martin maintained her residence at Cashmere the parties never living together after the separation.
Mr Martin was a physician and surgeon. After his removal to the coast he engaged in the practice of his profession. He exchanged a part of his lands at Cashmere for lands at Oak Harbor, and accumulated certain personal property consisting of office furniture and fixtures, household furniture, an automobile, a victrola, and accounts due him for medical services, the whole being appraised at $5,828.68.
In August, 1921, Harry Martin began an action against Dora M. Martin, seeking a divorce on the ground of desertion. The summons was personally served upon Mrs. Martin at her home in Cashmere, but she made no appearance in the action. After the time for her appearance expired, a default was entered against her, and the cause subsequently heard by the court. At this hearing the court found that the plaintiff in the action was entitled to a divorce on the ground stated in the complaint, found that all of the property rights of the parties had been equitably and justly settled by mutual agreement, and on October 18, 1921, entered an interlocutory decree to the effect that the plaintiff was entitled to a decree of divorce against the defendant.
Dr. Martin died on March 23, 1922, which was prior to the time the divorce could have been made final under the statute. Rem. Comp. Stat. § 988-1. The doctor left a nonintervention will, in which he named one Myrtle Smitham as his executrix. The will was proven and admitted to probate, and the executrix named therein confirmed as such. She qualified after the order of confirmation and took upon herself the administration of the property under the terms of the will. Shortly thereafter, Mrs. Martin applied to be appointed and was appointed administratrix of the community property of decedent and herself as the surviving spouse of Dr. Martin. She claimed all of the property of which Dr. Martin died possessed as community property, and sought to have the property turned over to her for administration. This claim the executrix resisted, and the present proceedings were instituted to determine their respective rights. On the hearing the court determined the property to be the suparate property of Dr. Martin, and that the executrix was rightfully in possession thereof. From this holding the administratrix appeals.
On the trial it developed that there was no contest over the real property; the administratrix, through her counsel, conceding that, since the property given in exchange therefor was the separate property of Dr. Martin, the property acquired partook of the same character and was likewise separate property.
The trial court based its conclusion that the personal property was also separate property largely on the terms of the interlocutory decree of divorce. It held that, while the decree was not final as a decree of divorce, it was so as a disposition of the property rights of the parties. This conclusion is founded upon the wording of the statute. The statute relied upon (Rem. Comp. Stat. § 988) after providing that the court, pending an action for divorce, may make and enforce such orders 'for the disposition of the prsons, property and children of the parties as may be deemed right and proper,' further provides:
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