Meyers v. Albert

• Decision Date: 29 October 1913
• Citation: 135 P. 1003,76 Wash. 218
• Court: Washington Supreme Court
• Parties: MEYERS v. ALBERT et al.

135 P. 1003

76 Wash. 218

MEYERS v. ALBERT et al.

Supreme Court of Washington

October 29, 1913

Department 2.Appeal from Superior Court, King County; King Dykeman Judge.

Action by Zenaide Meyers against John H. Albert and others.From a judgment for defendants, plaintiff appeals.Affirmed.

Shorett, McLaren & Shorett and F. A. Gilman, all of Seattle, for appellant.

Farrell Kane & Stratton, of Seattle, for respondents.

MAIN J.

This action was brought for the purpose of having determined the interest of the plaintiff in and to certain real estate.The plaintiff is the widow of Joseph Meyers, deceased; the defendants are the executors of his last will and testament and his six sons, devisees and legatees in his last will and testament.

On August 19, 1908, the plaintiff and Joseph Meyers were married in Portland, Or.They had been residing in Portland something over a year at the time of their marriage.They had previously resided in Salem, Or., for many years, where each had conducted a business.Mr. Meyers was a widower and the father of the six sons hereinbefore mentioned, the issue of a former marriage.The plaintiff was the mother of two children by a previous marriage.A few days prior to the marriage, the plaintiff and Mr. Meyers entered into a written antenuptial agreement by which she was to receive the sum of $10,000 at his death.On August 29, 1908, Mr. Meyers, accompanied by the plaintiff, went to the Bank of California, in Portland, where he opened a joint checking account in his and his wife's names.At this time $4,000 was deposited in the account.Both were authorized to and thereafter did draw checks on the account in their individual names.Thereafter certain sums were deposited aggregating several thousand dollars.The sum of $200, money the plaintiff received from the sale of furniture prior to her marriage, may have gone into this fund, also $1,000 which the plaintiff testified Mr. Meyers gave her as a wedding present on the day of their marriage.All of the other deposits, with the exception of the rentals from the Olive Apartments, were the proceeds of property acquired by Mr. Meyers prior to his marriage to the plaintiff.The plaintiff and Mr. Meyers continued to draw from this account upon their individual checks until the latter's death.After his death the plaintiff drew from the account the small balance remaining.On and prior to the date of the opening of this account, and up to the date of his death, Mr. Meyers also had an account with the Capital National Bank at Salem, Or.This account was in his name only, and he alone drew checks upon it.Early in September, after the marriage, Mr. and Mrs. Meyers went to Salem, Or., where they remained for two or three weeks, then returned to Portland, and immediately thereafter went to Toppenish, Wash., to visit the daughter of the plaintiff.From Toppenish they went to Seattle, arriving probably early in October.During the greater portion of the four weeks that they remained in Seattle they were residing with a relative of Mr. Meyers.While in Seattle they purchased the property in question known as the Olive Apartments.The purchase price was $35,000, all of which, except the first payment of $1,000 and a later payment of $8,500, was paid out of the joint account in the Bank of California.The $1,000 payment was made with a clearing-house certificate, where and by whom issued does not appear.The $8,500 was paid out of the account of Mr. Meyers in the Capital National Bank at Salem.The property was leased, and the monthly payments of rent appear to have all been deposited in the Bank of California account.Some repairs were later made upon the apartments, amounting to about $2,500, which were paid for out of this account.The plaintiff testified in substance that, when she and Mr Meyers left Portland for Toppenish, it was their intention to go to Seattle, buy property, and make their home there.That the purchase of the Olive Apartments was in pursuance of this plan.They, however, departed from Seattle about November 1st, going to Portland, where they lived at the Portland Hotel for a few weeks.They then went to Salem.While at Salem Mr. Meyers destroyed the will which he had made shortly after the death of his first wife and also the antenuptial contract executed prior to his marriage with the plaintiff.He thereupon executed a will in which the plaintiff was bequeathed the sum of $20,000.They then returned to Portland and shortly thereafter went to California, where they remained until April, 1909.During the spring of 1909they caused to be constructed a house upon a lot which the plaintiff owned at the time of her marriage to Mr. Meyers.This house cost about $5,000, which with the cost of furnishing the same was paid out of the Bank of California account.Thereafter Mr. Meyers deeded by quitclaim this property to the plaintiff.Mr. Meyers at different times purchased other real estate in Oregon which was paid for out of this same account.No claim, other than under the will, has been made by plaintiff to such property.After returning from California, Mr. and Mrs. Meyers lived at the Portland Hotel until July, 1909, at which time they moved into the house which they had constructed on the plaintiff's lot as aforesaid.Here they lived until the death of Mr. Meyers on January 29, 1911.On the 19th day of May, 1910, at Portland, Or., Mr. Meyers revoked his former will hereinbefore mentioned and executed a will by which the plaintiff was given all of his household goods and, with the exception of a few small bequests, a one-fifth interest in the remainder of his estate, both real and personal.This will on February 2, 1911, was admitted to probate in Multnomah county, Or., of which county the decedent at the date of his death was an inhabitant.The executors hereinbefore mentioned were by the county court of that county and state duly appointed as the executors of his will.Thereafter, upon application made to the superior court of the state of Washington for King county, the will was on April 4, 1911, admitted to probate in this state.On March 18, 1912, the plaintiff filed in the superior court for King county her complaint claiming to be the owner in fee simple of a one-half interest in the real estate in Seattle known as the Olive Apartments.The cause was tried to the court...