Newsome v. Allen

• Decision Date: 16 August 1915
• Docket Number: 12661.
• Citation: 86 Wash. 678,151 P. 111
• Court: Washington Supreme Court
• Parties: NEWSOME v. ALLEN et al.

151 P. 111

86 Wash. 678

NEWSOME v. ALLEN et al.

No. 12661.

Supreme Court of Washington

August 16, 1915

Department 1. Appeal from Superior Court, Pierce County; E. M. Card Judge.

Action by John Newsome, as administrator of Anna J. Newsome deceased, against Kate Allen and others. From a judgment for defendants, plaintiff appeals. Reversed, with directions to grant judgment for plaintiff.

Raymond J. McMillan and E. K. Murray, both of Tacoma, for appellant.

W. C Elliott and Jay E. Taylor, both of Tacoma, for respondents.

HOLCOMB J.

Appellant is the widower of Anna J. Newsome, who died at Tacoma, Wash July 14, 1913, and is the administrator of her estate, and commenced this action as such to recover from respondents specific personal property as follows, to wit: (a) Manager's check No. 8297, the Bank of California, N. A., Tacoma, payable to order of Anna J. Newsome, for $60, dated Tacoma, Wash., February 6, 1913. (b) Real estate coupon mortgage note, J. W. Clark and wife, Jenette Clark, to Anna J. Newsome, dated Tacoma, Wash., February 2, 1911, due February 2, 1914, for $1,500, payable to the Bank of California, N. A., Tacoma, with interest at 8 per cent. payable semiannually, with coupons due August 2, 1913, February 2, 1914, attached. (c) Certificate of deposit No. 51879, the Bank of California, N. A., Tacoma, dated Tacoma, Wash., September 8, 1910, for $4,140, payable to Mrs. A. J. Weber, or order. (d) Certificate of deposit No. 54425, the Bank of California, N. A., Tacoma, dated Tacoma, Wash., June 4, 1912, for $690, payable to Mrs. A. J. Weber, or order. (e) Check of city of Tacoma, treasurer's office, No. 3827, dated Tacoma, Wash., November 21, 1911, for $1,000, payable to other of A. J. Newsome, and drawn on Fidelity Trust Company, Tacoma, which property he alleges was the community property of himself and decedent, and was wrongfully taken from the estate by respondent Kate Allen, who claimed to act in behalf of herself and sisters.

Respondents admit that they took the described property, but assert that it was the separate property of decedent, who was their sister, and that she gave the same to them in apprehension of death and during her last illness, and that they hold title thereto under a valid gift causa mortis.

The two questions of fact under the pleadings and which were submitted to the jury were: (1) The separate or community character of the property, and (2) whether or not a valid gift thereof had been made by the decedent to respondents.

The jury found: (1) That the checks for $60 and $1,000 and the note for $1,500 were the community property of appellant and decedent, and the certificates for $4,140 and $690 the separate property of decedent, and (2) that neither the property so found to be separate nor the property found by them to be community was given to the respondents. The court, proceeding upon the theory that the case was one in equity and the verdicts of the jury merely advisory, disregarded such verdicts and made its findings of fact wherein it adopted the verdict of the jury as to the separate and community character of the property, but set aside the verdict of the jury that neither the securities found to be community property nor the securities found to be separate property were given to the respondents. The appellant moved that the court set aside that portion of the verdict finding the certificates of deposit for $4,140 and $690 were the separate property of the decedent, which motion was denied. It then entered its final judgment adjuding respondents to be the sole owners of a one-half interest in the checks for $60 and $1,000 and the note for $1,500 and all the certificates of $4,140 and $690. It is from this portion of the final judgment that this appeal is taken.

Appellant and decedent were married September 22, 1902. Prior thereto decedent was the widow of John Weber, who died in December, 1892, leaving her his estate, together with $2,000 life insurance. The decree of distribution, of which decedent was executrix, orders the distribution to her of $2,265. It does not appear whether or not the $2,000 insurance money was included in this sum. At the time of his death, Weber owned the furniture in and conducted the Lafayette Hotel at Tacoma, Wash., which decedent continued to conduct for 11 months after his death and then sold for $800.

There is some contention by appellant that the action is a law action, and that the findings of the jury are conclusive as to all proper issues of fact even though special in form. The parties have reversed their positions. Appellant objected to a jury below because the case was of equitable nature, while the respondents insisted upon a jury and declared it to be a law action. In its origin and nature it was essentially a law action to recover specific personal property. Rem. & Bal. Code, § 314. The answers did not set up any equitable defenses or change the character of the case. But the appellant demanded the consideration of the issues as of equitable cognizance which was granted by the trial court and acquiesced in by the respondent. The parties cannot now, therefore, be heard to the contrary, whereby either might derive an advantage over the other. So far as the parties are concerned, the case stands as one of equitable jurisdiction.

The probable origin of the property, the course of dealing therewith by both appellant and decedent, and the declarations concerning the same by, and estoppels of record against, appellant, undoubtedly justify the finding of the jury that the certificates for $4,140 and $690 were the separate property of decedent, who would therefore have the sole right of disposition thereof by gift or bequest. As to her right to dispose of her interest in the community personalty in controversy by gift we express no opinion.

Having the legal right and power of disposition of the certificates for $4,140 and $690, did the decedent make a valid gift causa mortis? The question is determined by the intention and the character of the tradition or delivery of the property. The circumstance of possession by the donee is not sufficient to establish either delivery or intention to give.

In Jackson v. Lamar, 67 Wash. 385, 121 P. 857, these observations were made:

'What constitutes a gift, * * * within the legal definition, * * * is essentially a matter of evidence and not of

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