In re Swartwood's Estate

• Decision Date: 14 April 1939
• Docket Number: 26773.
• Citation: 198 Wash. 557,89 P.2d 203
• Court: Washington Supreme Court
• Parties: In re SWARTWOOD'S ESTATE v. TAYLOR et al. In re WELSHER'S ESTATE. WEBB et al.

89 P.2d 203

198 Wash. 557

In re SWARTWOOD'S ESTATE

In re WELSHER'S ESTATE.

WEBB et al. v. TAYLOR et al.

No. 26773.

Supreme Court of Washington

April 14, 1939

Department 2.

Proceeding in the matter of the estates of Mary Swartwood and Lizzie Welsher, deceased, by Thomas W. Webb and wife and A. E Knight and wife against James F. Taylor and others, involving a claim to have certain real property conveyed to claimants. From an order dismissing the claim, claimants appeal.

Order affirmed.

Appeal from Superior Court, King County; James T. Lawler, judge.

Ballinger Clark, Mathewson & Force, of Seattle, for appellants.

Kahin &amp Carmody, of Seattle, for respondents.

STEINERT Justice.

In the course of a probate proceeding involving the joint administration of two estates, the administrator filed a claim on behalf of himself and another claimant against the consolidated estates, seeking to have certain real property, which had been inventoried therein conveyed to the claimants in specific performance of a prior oral agreement alleged to have been had with a former owner of the property, or otherwise, to have the remainder of the estate awarded to the claimants in recognition of an alleged trust. Subsequently, the administrator filed his final report and petition in the proceeding asking that the claim be approved and that the entire estate be distributed to the two claimants. The heirs at law of one of the decedents appeared and interposed objections to the report and petition. Upon a hearing by the court, an order was entered sustaining the objections and dismissing the claim. The administrator and his co-claimant, together with their wives, have appealed.

The property involved in this controversy consists of certain real estate in King county formerly owned by one James Coonan, a bachelor, resident in that county. Coonan acquired title to the property in 1914 and retained ownership thereof until his death on December 30, 1929. He left no will and appellant, Thomas W. Webb, was duly appointed administrator of his estate. Pursuant to Webb's final account and petition, filed in October, 1930, the estate was distributed to Coonan's two sisters and sole heirs at law, Mary Swartwood and Lizzie Welsher, both of Port Huron, Michigan. Mrs. Swartwood died intestate in the summer or fall of 1935 leaving as her sole heir at law her surviving sister, Lizzie Welsher. In February, 1936, while the estate of Mrs. Swartwood was in progress of settlement, Mrs. Welsher died intestate leaving as her sole heirs at law the respondents in this case. Subsequently, Thomas W. Webb, upon his own petition, was appointed ancillary administrator of the Swartwood and Welsher estates.

According to appellants' claim and petition, their relative rights to the property are predicated upon three successively asserted sets of fact and circumstances: (1) That Coonan, in consideration of the care that appellants Webb had given him and the care which they had promised to give him during the remainder of his life, had 'agreed that said property was theirs [the Webbs'],' and, in consideration of future care by them without compensation, had 'agreed to give them said property;' (2) that in 1928, prior to Coonan's death, Mary Swartwood, his sister, had stated to appellants Thomas W. Webb and A. E. Knight that, 'because of what they did for her,' she would see that Webb and Knight would receive, share and share alike, 'all of said property,' the petition alleging that, after the death of Coonan Mrs. Swartwood, in consequence of her prior declaration, held the property in trust for appellants, but that she died without making a transfer of the legal title to them; and (3) that in December, 1935, after Mrs. Swartwood's death, Lizzie Welsher on two occasions had stated in writing that she wanted appellants Thomas W. Webb and A. E. Knight to 'share in' the property, that it was Mrs. Welsher's intention to convey the property to Webb and Knight, but that owing to her death her intention was never fulfilled. Upon these asserted facts and circumstances, taken as a whole, appellants contend that the property is impressed with a trust in their favor.

The first predication, it will be observed, advances two alternative theories, namely, (1) an oral promise by Coonan given for a consideration; and (2) a trust declaration by him.

The testimony respecting the alleged promise came from members of the Webb family, from appellant Knight, and from a Mrs. Towey, a disinterested witness. The sum and substance of their testimony upon that subject was that Coonan had on various occasions stated that some day the property would belong to the Webbs, or would be left to them. The testimony with respect to the consideration for the promise was that for many years Coonan had lived in the home of the Webbs which adjoined his property, that he and the Webbs had worked together in improving both properties, and that Mrs. Webb had nursed and cared for Coonan while he was seriously sick at different times. However, Mrs. Webb testified that what she had done for 'the old man' was simply an expression of friendship and regard for him. As to the work upon the land, the evidence indicates that it amounted to nothing more than a friendly exchange of labor between Coonan and the Webbs in the mutual improvement of their respective properties. The most that can be said for such agreement, were it sufficiently established is that it was an oral contract to devise or bequeath property.

It is settled beyond dispute in this state that such contracts, although enforceable, must be established by evidence that is conclusive, definite, certain, and beyond legitimate controversy. Resor v. Schaefer, 193 Wash. 91, 74 P.2d 917; Wayman v. Miller, Wash., 81 P.2d 501; Osterhout v. Peterson, Wash., 87 P.2d 987, in which cases many authorities are cited. The instant case falls within the inhibition of that rule, for the evidence regarding the oral contract does not approach the degree of certainty required.

As to the theory of a declaration of trust by Coonan, it is sufficient to say that there is no testimony whatever that Coonan ever stated that he was holding the property in trust for appellants, or either of them, or for anyone else. The fact that Webb administered Coonan's property and procured a decree of distribution vesting complete title in Mrs. Swartwood and Mrs. Welsher is almost conclusive evidence that Webb did not believe that an...