Makinen v. George

• Decision Date: 30 October 1943
• Docket Number: 29032.
• Citation: 142 P.2d 910,19 Wn.2d 340
• Parties: MAKINEN v. GEORGE.
• Court: Washington Supreme Court

142 P.2d 910

19 Wn.2d 340

MAKINEN v. GEORGE.

No. 29032.

Supreme Court of Washington

October 30, 1943

Department 1.

Action by Elmer Makinen, as administrator with will annexed de bonis non of the estate of Elsie Makinen, deceased, against Helen George to require defendant to account for and pay over to plaintiff the proceeds of two United States savings bonds registered in name of decedent and payable on decedent's death to defendant. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with instructions to dismiss action.

Appeal from Superior Court, Grays Harbor County William E. Campbell, judge.

Hogan &amp Adams and Gladys Phillips, all of Aberdeen, for appellant.

Charles E. Allen, of Seattle, for respondent.

JEFFERS Justice.

This action was instituted by Elmer Makinen, as administrator with the will annexed de bonis non of the estate of his wife Elsie, Makinen, for the purpose of obtaining a decree requiring Helen George, daughter of Elsie Makinen by a former marriage, to account for and pay over to plaintiff the proceeds of two one thousand dollar United States savings bonds, registered in the name of Mrs. Elsie Fohr Makinen, payable on death to Mrs. Helen Fohr George.

The complaint, in paragraphs 1 to 6, inclusive, alleges the following facts, which are admitted in the answer: Plaintiff is the surviving spouse of Elsie Makinen, deceased, who died testate in Aberdeen, on February 8, 1941, being at the time of her death a resident of Seattle, and leaving an estate subject to administration of the approximate value of three thousand dollars. Decedent left surviving her as her only heirs, devisees and legatees, Helen George, a daughter by a former marriage, and plaintiff. Helen George was nominated executrix by the will of deceased, and the will was presented by her and admitted to probate by the superior court for King county, Helen George qualifying as executrix.

As stated, the foregoing facts are admitted, as are also the following facts alleged in paragraph 7 of the complaint: At the time of her death, Mrs. Makinen was possessed of a community interest in a home in Seattle, its furniture and furnishings, and a 1936 Terraplane automobile. [19 Wn.2d 342] Paragraph 7 also contains the following allegation, which is denied by the answer: 'That at the time of her death said decedent was possessed of * * *, as her separate property, the following described personal property [then follows a description of the two bonds here in question].'

The following are the allegations, in substance, of paragraphs 8, 9, 10 and 11 of the complaint, which are admitted by the answer: Petitioner has repeatedly demanded that Helen George account for the bonds, or the proceeds thereof, as assets of the estate, but she has surrendered the bonds for payment, received and retained the proceeds thereof. Helen George, claiming the bonds as her individual property, resigned as executrix without accounting for or paying over to plaintiff, as her successor, the proceeds of the bonds. The will of deceased left all her property to Helen George, except the nominal sum of one dollar left to petitioner.

The following allegations contained in paragraph 12 of the complaint are denied by the answer: The retention of the proceeds of the bonds is a fraud upon the rights of petitioner, as the surviving spouse, in that there are not sufficient assets in the estate to pay the expenses of the funeral, last illness and administration, without resort to the home, its furniture and furnishings, and other community property of the estate, which petitioner, on payment of such expenses, has a right to have set aside to him as a probate homestead.

In addition to the denials hereinBefore referred to, defendant alleged affirmatively that prior to her marriage to plaintiff, her mother, Elsie Makinen, was the owner of certain real estate in Grays Harbor county, described as the southerly 43 feet of lots 11 and 12, block 8, Weatherwax & Benn's Addition to Aberdeen; that on January 23, 1934, Mrs. Makinen, for a good and valuable consideration, executed and delivered to defendant her warranty deed to such real estate, which deed was filed for record January 24, 1934; that during the year 1937, defendant sold the property, and with the proceeds thereof purchased the bonds described in the complaint; that at all times since, defendant was and now is the owner of the bonds and their proceeds, in her own individual right.

Plaintiff by his reply admits that there appears of record a deed purporting to be a conveyance from the deceased to defendant of the property above described, but denies that the deed served to convey the property to defendant, or did, or was intended to, convey more than the mere naked legal title to the property, or was given for any reason other than the convenience of deceased.

The cause came on for hearing Before the court, counsel for defendant contending, as shown by her opening statement, that defendant was the owner of the bonds on the theory of a resulting trust, plaintiff contending that a resulting trust could not exist because to permit such a trust to be established would be in violation of the regulations of the Treasury Department, and a resulting trust cannot arise if the relation created is a violation of the law.

In so far as the record shows, the court, without expressing any opinion as to the above contentions, proceeded to hear the evidence, and thereafter, on January 18, 1943, made and filed a memorandum decision, which states: 'After reading the briefs in the above entitled case, together with the authorities cited therein, I am of the opinion that the case of Decker v. Fowler, 199 Wash. 549 [92 P.2d 254, 131 A.L.R. 961], is controlling. For that reason the judgment will be for the plaintiff.'

Defendant moved for judgment notwithstanding the memorandum decision, which motion was denied. Defendant then proposed findings of fact, conclusions of law and judgment, which were refused. On February 5, 1943, the court entered a decree ordering defendant to collect from the United States the proceeds of the two bonds, and account for and pay over such proceeds to plaintiff, as administrator. Defendant gave timely notice of appeal from the judgment entered.

Appellant assigns error on the denial of her motion for judgment notwithstanding the memorandum decision; on the failure of the court to enter a judgment of dismissal upon the findings of fact, conclusions of law and judgment proposed by appellant; and upon the entry of judgment in favor of respondent.

Appellant's theory is clearly shown on page 16 of her brief, where she states: 'It is the contention of Helen George that the effect of the conveyance from her mother to her of January 23, 1934, was to vest in her full and complete title to the real estate conveyed and to make her the owner of the house and the proceeds from the sale of the house with which the bonds in question were purchased, and that she is, therefore, the owner of the bonds in her own individual right by virtue of a resulting trust.'

On the other hand, respondent contends that as a legal proposition appellant's contention cannot prevail, as a resulting trust cannot arise if the relation created is in violation of law, arguing that to permit appellant to establish a resulting trust in the bonds would be in violation of the regulations of the Treasury Department, especially regulation I, relative to registration, to which we shall later refer.

On the facts, respondent argues that there is not a thing in appellant's entire testimony, except her own statement, that is not equally consistent that she acted as agent for her mother as that she acted as principal for hereself. In other words, respondent argues that appellant did not establish a trust by evidence which was clear cogent and convincing.

Respondent begins his argument with the statement that the case of Decker v. Fowler, 199 Wash. 549, 92 P.2d 254, 256, 131 A.L.R. 961, is determinative of the present case. We are of the opinion the Decker case is not controlling. In that case, the bonds in question were admittedly, purchased by the deceased (Marino) with his own money. The question presented was whether or not Marino, during his lifetime, had made a valid gift of the proceeds of the bonds to Mrs. Decker, the named beneficiary, in the event of his death without having called for payment. The opinion then proceeds upon the above theory. In discussing the rights of the beneficiary, we stated: 'Likewise, here, there is a direction to the Federal government, in the case of the death of Marino, to pay to Mrs. Decker. But this is subject to the contingency that Marino had not elected to take payment of the bonds Before his death. The right of Mrs. Decker to remain as beneficiary until the bonds were either paid Before or after the death of their owner is not controlling, inasmuch as Marino had the right, during his lifetime, to call for the payment of the bonds, and, having this right, the proceeds of the bonds had not passed beyond his dominion and control during his lifetime.'

It is admitted that the rule that evidence must be clear, cogent and convincing, in order to establish a resulting trust, is the correct rule. Brucker v. De Hart, 106 Wash. 386, 180 P. 397. See, also, Restatement of the Law of Trusts, p. 1398, § 458.

We have recognized in this state that a resulting trust in property may be created in favor of one who furnishes the consideration for the purchase of such property, but has the title taken in the name of another. In re Hammer's Estate, 145 Wash. 322, 260 P. 532.

Respondent offered no evidence to support his case in chief other than the in ventory and appraisement filed in the estate of Elsie...