Marston v. Rue
| Decision Date | 10 July 1916 |
| Docket Number | 13409. |
| Citation | 159 P. 111,92 Wash. 129 |
| Court | Washington Supreme Court |
| Parties | MARSTON v. RUE et al. |
Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.
Action by M. H. Marston against Olaf Rue and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Lyons & Orton, of Seattle, for appellant.
Walter S. Fulton, of Seattle, for respondents.
The Marstons, married in Alaska, had accumulated there, up to 1912, sundry mining properties, which in that year they divided by deed to the wife of a half interest and her acknowledgment that it constituted the husband's full settlement of her rights in those claims. Under just what relation the mines had been acquired is not clear. The wife's acquittance recites the one-half interest as hitherto held 'in trust' for her, and the meager testimony points to a business partnership in mining property, acquired, as she testified, 'by joint efforts.' Be this as it may, the division by its express terms goes no further than to sever those particular assets. Assuming it sufficient for a severance under Rem. & Bal. Code, § 8766, it was partial only. It settled no other present or any future property rights. These comments on the documents are not controverted, nor does the record show arrangement for divorce. After this the pair next appear in Seattle, where they lived apart, and, the infatuation of the husband for the other woman becoming shameless, he bought and gave her the use of an automobile costing $2,200. After this he returned to Alaska. The paramour fiaunting herself intolerably in the motor car for three or four months after his departure, the wife took it from the garage and sold it to defendant, not out of necessity for money, but from an assertion of right. The present suit is the husband's replevin against the purchaser.
The marital property laws of Alaska not being in proof, we conclusively assume them to be the same as our own. Sheppard v. Coeur d'Alene L. Co., 62 Wash. 12, 112 P. 932, 44 L. R. A. (N. S.) 267, Ann. Cas. 1912C, 909; Gunderson v. Gunderson, 25 Wash. 459, 65 P. 791; Clark v. Eltinge, 29 Wash. 215, 69 P. 736.
The automobile, acquired after marriage, was then presumptively community personalty. To be sure, the husband had a right to prove this machine his own out of the previous property set aside to him, but his own testimony, which is all there is on this subject, is most unsatisfactory. He bought it, he says, from the proceeds of 'my mining operations in Alaska.' This is uncertain or evasive. He had not bought it until the year following the settlement. Whether in that time he had or had not acquired new property or received new earnings from speculations he does not show, or whether this could not have been from former property still undivided. Now the burden of proof, so long as there was no divorce, was clearly on him.
The lower court found the automobile to be a family asset, and we shall not reverse that finding. Now, a wife's rights in family personalty are not of the contingent sort, like dower or survivorship, but a present estate. True, by our statute the husband is made manager, with full power to sell and dispose of this. But it does not follow that he can give it away. He is, so to speak, only the head of a firm. The personal property is just as much hers as his. The very attitude that gives him sale power over the whole restricts his testamentary power to a half. Under our law she has helped to create it as much as he. Consequently the idea is not to be tolerated that a husband can give a mistress stocks and bonds or precious stones out of the family money. No part of those savings can he make gifts of against her consent, even to his own relatives, though mere trifles to the latter no doubt might be sustained under the rule of de minimis. The law cannot countenance his right to a willful, premeditated waste of family personal property, which is now so often the bulk of an estate. The burden of proof, to be sure, must be on the wife when she seeks to interfere. The presumptions are all against her. She cannot act upon whim or take things into her own hands every time he goes out of town or snatch back an asset where there can be two minds on the question. But that in a plain case she must have redress either by damages or recovery of the thing itself from his fraudulent donees is undeniable, or we should be taking the statute away from her. On this we had occasion to comment in Stewart v. Bank, 82 Wash. 106, 112, 143 P. 458, where we said that, while in a common-law jurisdiction a court had been compelled to acknowledge that the husband could beggar the wife by giving away the personal property, he could not do it here. What he was given his sweeping powers for by our statute, we said, is 'the facilitating the business of the community.'
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