Reinhardt v. Fleming, 29015.

• Decision Date: 28 July 1943
• Docket Number: 29015.
• Citation: 140 P.2d 504,18 Wn.2d 637
• Parties: REINHARDT et al. v. FLEMING et al.
• Court: Washington Supreme Court

140 P.2d 504

18 Wn.2d 637

REINHARDT et al. v. FLEMING et al.

No. 29015.

Supreme Court of Washington

July 28, 1943

Department 1.

Action by William B. Reinhardt and another, as executors of the last will and testament of Grace Vaughn Bowman, deceased, against William M. Fleming and others for possession of testatrix' realty, a decree quieting title thereto as against defendants' claims, for judgment of restitution and damages for withholding possession. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Skeel, McKelvy, Henke, Evenson & Uhlmann, A. A Booth, and Reeves Aylmore, all of Seattle, for appellants.

Wright & Wright and A. J. Laughon, all of Seattle, for respondents.

SIMPSON Chief Justice.

Plaintiffs as executors of the estate of Grace Vaughn Bowman, deceased instituted this action against defendants Fleming, husband and wife, and Bessie Jean Gloster, their daughter. The complaint alleged that the plaintiffs were executors of the estate of Mrs. Bowman, who died July 5, 1942; that, at the time of her death, she was owner of the real property described in the complaint; that defendants were in possession and refused to vacate the premises; that plaintiffs caused notice in writing to be served on defendants requiring them to vacate and surrender the premises, which they refused to do; and that by reason thereof the estate suffered damages in the sum of two dollars for each day subsequent to the date of service of demand for possession. Further, they ask for possession of the property and a decree quieting title thereto as against any claims of the defendants; for judgment for restitution and damages for withholding possession.

The defendants answered, denying the allegations of the complaint, except that concerning possession, and by way of affirmative defense alleged that Grace V. Bowman purchased the property involved for the benefit of defendant Gloster; that possession was delivered to her April 5, 1941, and that Mrs. Gloster had been in undisturbed and peaceful possession since that date and had made improvements thereon and paid the taxes; that, subsequent to the delivery of possession, Mrs. Bowman confirmed her intention of vesting title in Mrs. Gloster 'by acts, declarations and written instrument.' Defendant Gloster prayed for a decree quieting her title to the property.

The case was tried to the court and resulted in judgment in favor of plaintiffs. Findings of fact and conclusions of law were entered. The court found that the plaintiffs had been damaged in the sum of $40 per month beginning September 1, 1942, and that the damage would continue until possession of the property was surrendered to plaintiffs.

The question presented in this case is, Was the evidence sufficient to prove a gift of the property to appellant?

'Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed * * *.' Rem.Rev.Stat. § 10550.

Under certain circumstances, parol gifts or transfers of real property will be upheld. The evidence to sustain parol gifts must be clear, unequivocal, strong, convincing and definite in character. Jackson v. Lamar, 67 Wash. 385, 121 P. 857; Sturgis v. McElroy, 113 Wash. 192, 193 P. 719.

There are four requirements necessary to sustain a parol gift of real estate: First, it must be a gift in praesenti, that is, an absolute, present gift, not a promise, nor the expectation of some future act; second, possession must be given in furtherance of the gift; third, permanent and valuable improvements must be made which cannot be compensated for in damages; and, fourth, the donee must have changed his condition or circumstances or been induced to forego some benefit or assume some liability upon the strength of the gift such as would make it inequitable not to enforce the gift. Sturgis v. McElroy, supra; Gerry v. Gerry, 135 Wash. 468, 238 P. 5.

We now summarize the evidence in order to ascertain whether the facts, measured by these rules, were sufficient to sustain a parol gift of the real estate.

Mrs Gloster and Mrs. Bowman were close and intimate friends for several years prior to July 5, 1942, the date of Mrs. Bowman's death. Appellant is one of seven preferred beneficiaries of Mrs. Bowman's will. The estate, apparently quite substantial, was left almost entirely to religious or missionary organizations or institutions, subject, however, to life estates for individuals and for this appellant. The Simpson Bible Institute of Seattle, in which Mrs. Bowman was interested and to which she contributed, was a beneficiary. In 1937 this appellant secured a position as teacher in that institution at the request of Mrs. Bowman. Until she moved into the house involved in this litigation in 1941, appellant lived several miles from the school, and it was on that account and in order to provide a place for Mrs. Gloster, that Mrs. Bowman secured the property. Shortly after Mrs. Bowman signed a contract of purchase and Before she secured a...