Reagh v. Dickey

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, Justice.
• Citation: Reagh v. Dickey, 183 Wash. 564, 48 P.2d 941 (Wash. 1935)
• Decision Date: 18 September 1935
• Docket Number: 25517.
• Parties: REAGH et al. v. DICKEY et al.

48 P.2d 941

183 Wash. 564

REAGH et al. v. DICKEY et al.

No. 25517.

Supreme Court of Washington

September 18, 1935

Department 2.

Appeal from Superior Court, King County; Kazin Kay, Judge.

Suit by John D. Reagh and others against U. M. Dickey, Mollie Pierce Moller, and others, in which defendants filed cross-complaints which were abandoned with exception of cross-complaint of defendant Moller. From an adverse decree plaintiffs appeal, and defendant Moller cross-appeals.

Affirmed.

Matthew Stafford, of Seattle, for appellants.

J Speed Smith, Henry Elliott, Jr., Todd, Holman & Sprague, John S. Robinson, Lyons & Orton, and James G. Mulroy, all of Seattle, for respondents.

HOLCOMB Justice.

This a suit for specific performance of a contract made under Rem. Rev. Stat. § 6894. The action was brought by appellants as trustees under the will of Charles Schalkenbach and as trustees of the estate of Minnie Wood Schalkenbach, under and by virtue of a contract executed on June 23, 1926, by and between Charles Schalkenbach and Minnie Wood Schalkenbach his wife. The defendants below, respondents here, are the executors of and beneficiaries under a will of Minnie Wood Schalkenbach dated November 2, 1928. In the contract of June 23, 1926, there were mutual promises not to revoke the mutual wills of same date. In their pleadings, respondents cross-complained and asked that appellants be held to be trustees of the estate of Charles Schalkenbach for the benefit of the beneficiaries under Minnie Wood Schalkenbach's will of November 2, 1928, but at the trial all of the respondents, with the exception of Mollie Pierce Moller, abandoned their cross-complaints, and waived all claims to any part of the estate of Charles Schalkenbach. At the conclusion of the trial the judge made findings and conclusions and entered a decree denying appellants any relief, holding that the contract of June 23, 1926, was void, and directing distribution of the estate of Minnie Wood Schalkenbach according to the terms of her will of November 2, 1928. The decree also denied respondents' right to any part of the estate of Charles Schalkenbach.

Without signatures and acknowledgment, the contract of June 23, 1926, is as follows:

'This agreement, in duplicate, jointly made and entered into this 23 day of June, 1926, by and between Charles Schalkenback and Minnie Wood Schalkenbach, husband and wife, of Seattle, Washington, pursuant to the provisions of section 5919 Remington & Ballinger's Annotated Codes, and statutes of Washington concerning agreements between husband and wife for the fixing of the status and disposition of community property to take effect upon the death of either Witnesseth:

'The in consideration of the mutual wills this day made, and of other good and valuable considerations mutually moving between them, the receipt whereof is hereby acknowledged, they have and do hereby covenant, promise and agree with each other as follows:

'First: That all property of whatsoever nature or description whether real, personal, or mixed and wheresoever situated now owned or hereafter acquired by them or either or them shall be considered and is hereby declared to be community property.

'Second: That the status and disposition of the whole of said community property shall be and is hereby declared to be as provided in their mutual irrevocable last wills and testaments of even date herewith and by this reference hereby made a part of this instrument. True copies of said last wills and testaments are hereunto attached.

Third: That this instrument and said last wills and testaments shall be and remain irrevocable except in the event that the parties hereto shall otherwise mutually agree in writing.'

Rem. Rev. Stat. § 6894, reads: 'Nothing contained in any of the provisions of this chapter, or in any law of this state, shall prevent the husband and wife from jointly entering into any agreement concerning the status or disposition of the whole or any portion of the community property, then owned by them or afterward to be acquired, to take effect upon the death of either. But such agreement may be made at any time by the husband and wife by the execution of an instrument in writing under their hands and seals, and to be witnessed, acknowledged, and certified in the same manner as deeds to real estate are required to be, under the laws of the state, and the same may at any time thereafter be altered or amended in the same manner: Provided, however, that such agreement shall not derogate from the rights of creditors, nor be construed to curtail the powers of the superior court to set aside or cancel such agreement for fraud, or under some other recognized head of equity jurisdiction, at the suit of either party.'

After issues were joined by various affirmative pleadings on the part of respondents and replies on the part of appellants, the cause was tried to the court without a jury, which made the following findings of fact:

'That the defendant Lucy Leeds Wood resigned shortly after her appointment as executrix of the last will and testament of Minnie W. Schalkenbach, deceased, and such resignation was accepted by the above entitled court, sitting in probate, and said defendant Lucy Leeds Wood has made no appearance in this action.

'That Abe E. Ritzwaller was not guardian of the person or estate of Minnie Wood Schealkenbach at the time of the commencement of this action, and never appeared in this action as such guardian; that Minnie Wood Schalkenbach died on December 21, 1932, and this action was commenced on the 1st day of Paril, 1933.

'That Charles Schalkenbach and Minnie Wood Schalkenbach were husband and wife on the 4th day of July, 1926, the date of the death of said Charles Schalkenbach, and had been husband and wife for many years prior thereto. That all of their property, both real and personal, at the date of the death of said Charles Schalkenbach, was community property.

'That said Charles Schalkenbach suffered many hardships by reason of poverty during his early life and was deeply interested in economic theories that would tend to improve the condition of the poorer classes. He was upright and honest in his business dealings; he was highly intelligent, and unusually well informed. He possessed a strong will, and great determination. His opinion on any subject quickly became a conviction, and once adopted, he neither invited nor tolerated further discussion. He had an overbearing and domineering nature, which manifested itself in his home life, as well as in his business relations. One of his economic theories was the establishment, maintenance and operation of municipal banks and as early as 1908 he expressed his determination in some manner to tie the hands of his wife, so that all the property of himself and wife should be left in trust for the establishment of such a bank upon the Pacific Coast.

'That for many months prior to the 23d day of June, 1926, Charles Schalkenbach had been in ill health, part of the time confined to his bed, and shortly Before said date had been advised that he must undergo an operation for appendicitis and gall bladder trouble; that, desiring to make certain changes in a will made by him in 1919, he employed one Praeger, an attorney of Los Angeles, California, to prepare a contract and two wills, and contract to be signed by himself and wife, and one will to be signed by himself, and the other by his wife, which instruments he intended and believed would settle the status and disposition of all the property of himself and wife, and which would take effect upon the death of either.

'That said contract was executed by Charles Schalkenbach and Minnie Wood Schalkenbach on June 23, 1926; that said contract was prepared and executed under and pursuant to the provisions of section 6894 of Remington's Revised Statutes of the State of Washington concerning agreements between husband and wife for the disposition of their community property, to take effect upon the death of either; that during the preparation of said contract Charles Schalkenbach was advised by said lawyer that in his opinion the trust for the establishment of a municipal bank would be declared invalid, and said lawyer suggested that if such municipal bank trust were declared invalid, an alternative trust for the establishment of a home for boys should be created; that said Schalkenbach did not deem such alternative trust necessary, since he had received a legal opinion that a municipal bank trust would be declared valid, but upon the insistence of said lawyer that said alternative trust should be created, said Schalkenbach directed him to prepare a will creating an alternative trust for a boys' home. That said Charles Schalkenbach had no children and was never interested in children.

'That Minnie...