In re Slocum's Estate

• Decision Date: 05 January 1915
• Docket Number: 11984.
• Citation: 145 P. 204,83 Wash. 158
• Court: Washington Supreme Court
• Parties: In re SLOCUM'S ESTATE. v. SLOCUM. KNOWLES

145 P. 204

83 Wash. 158

In re SLOCUM'S ESTATE.

KNOWLES v. SLOCUM.

No. 11984.

Supreme Court of Washington

January 5, 1915

Department 1. Appeal from Superior Court, Clarke County; R. H. Back Judge.

Judicial settlement of the estate of C. W. Slocum, deceased. C. W Knowles applied for an order compelling Laura Slocum, as executrix of decedent's will, to include certain omitted property in her inventory as community property, and, from a judgment granting only part of the relief prayed for petitioner appeals. Affirmed in part, and reversed in part and remanded, with directions.

Miller, Crass & Wilkinson, of Vancouver, for appellant.

Henry St. Raynor and McMaster, Hall & Drowley, all of Vancouver, for respondent.

MAIN J.

The controversy in this case is over the question whether certain personal property should be inventoried as the community property of C. W. Slocum, deceased, and Laura Slocum, his surviving wife, or whether it was the separate property of Mrs. Slocum. The property in question had been accumulated while the Slocums were residents of Clarke county, Wash. On December 29, 1904, C. W. Slocum executed a will, giving the use of the property belonging to him, and his community interest therein, to Laura Slocum, his wife, during her natural life, and at her death to descend to the heirs of C. W. Slocum. The latter died on September 20, 1912, and at this time was about 78 years of age. His wife was a few years his junior. The will was admitted to probate on the 7th day of October, 1912. It was what is known as a nonintervention will, and Laura Slocum, the wife, was named as executrix. After the admission of the will to probate, the executrix filed an inventory of the estate. On December 30, 1912, C. W. Knowles, one of the heirs of C. W. Slocum, deceased, filed a petition in the probate proceeding, alleging that the executrix had omitted from the inventory filed by her certain property, a part of which is the property in dispute in this case, and asked that she be required to include the same in the inventory as part of the community property of the estate of C. W. Slocum, deceased. To the petition an answer was filed setting forth the claim that the property had been given to Mrs. Slocum by her husband about 20 days previous to his death, and that by reason of such gift became her separate property. Upon the issues framed, the case proceeded to trial. The trial court found a portion of the property in dispute to be community property, and a portion to be the separate property of Mrs. Slocum. From the judgment entered, C. W. Knowles, the petitioner, appealed. Mrs. Slocum did not appeal.

The property here in controversy, then, is the property which was by the trial court adjudged to be the separate property of Mrs. Slocum. It is as follows: Certificates for 50 shares of stock of the par value of $100 per share, in the Donegan Shoe Company, a corporation; certificate in the Equitable Savings & Loan Association, of Portland, Or., for $2,000, dated September 17, 1912; certificate in the same company for $3,000, issued December 20, 1910; certificate in the same company for $8,000, dated May 16, 1911; certificate in the same company for $3,000, dated August 17, 1912; certificate in the same company for $4,000, dated October 21, 1911; certificate in the same company for $5,000, dated February 14, 1912; also, a certificate in the Realty Associates of Portland, Or., for $10,000, dated April 22, 1909. In addition to this, there were two notes, one for $200, and the other for $2,500. Further reference to the facts and the evidence will be made when the items of property specified are hereinafter considered more in detail.

There appears to be no conflict in the evidence. Hence it will not be necessary to review the findings of the trial court. The sole question in this case is whether the title to the property in dispute vested in Mrs. Slocum as her sole and separate property at the time of the death of her husband, C. W. Slocum. If the property in question had become her separate property at that time, then the judgment of the superior court must be affirmed. If some or all of it had not taken on the character of her separate property, then the judgment must be either reversed or modified. Owing to the numerous items of property involved, a statement of the rules of law which are pertinent to the inquiry will first be made.

In this state all property acquired after marriage by either the husband or the wife, or both, is 'community property,' other than certain well-known exceptions which are specified in the statute. Rem. & Bal. Code, §§ 5915-5917, inclusive. Property acquired during the existence of the marriage relation, whether the title thereto be taken in the name of the husband or that of the wife, or in their joint names, is presumed to be community property. Cyc. vol. 21, p. 1651. This is a rule so well known and so generally established that it is not necessary to assemble the cases in support of the text cited.

Where the claim is made that property acquired after marriage is not community property, the burden rests with the parties claiming the separate character of the property. The presumption as to the community character of the property may be overthrown only by evidence of a clear, certain, and convincing character. In re Estate of Boody, Deceased, 113 Cal. 682, 45 P. 858; Fennell v. Drinkhouse, 131 Cal. 447, 63 P. 734, 82 Am. St. Rep. 361.

In order to constitute a gift of personal property, three things are necessary: (a) An intention on the part of the donor to presently give; (b) a subject-matter capable of passing by delivery; and (c) an actual delivery at the time. Hecht v. Shaffer, 15 Wyo. 34, 85 P. 1056; Jackson v. Lamar, 67 Wash. 385, 121 P. 857; Meyers v. Albert, 76 Wash. 218, 135 P. 1003. The delivery must be such as will divest the donor of the present control and dominion over the property absolutely and irrevocably and confer upon the donee the dominion and control. Basket v. Hassell, 107 U.S. 602, 2 S.Ct. 415, 27 L.Ed. 500. The distinction that exists between gifts inter vivos and gifts causa mortis need not here be defined. The pivotal facts which give caste to the various transactions in the present case are the same, whether the gifts or attempted gifts be considered inter vivos or causa mortis. A gift will not be presumed; but he who asserts title by this means must prove it by evidence which is clear, convincing, strong, and satisfactory. In Jackson v. Lamar, supra, it was said:

'While it is true the courts have relaxed the rigor of the old rules, they have never departed from holding that something more is required to constitute a gift, either inter vivos or causa mortis, than the expression of an intent or purpose to give. Evidence of such intent is admissible to prove the act, but it does not constitute the act, and delivery, either actual or constructive, is as essential today as it ever was. The donor must not only signify his purpose to give, but he must deliver, and, as the law does not presume that an owner has voluntarily parted with his

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