Rogers v. Joughin

• Decision Date: 03 June 1929
• Docket Number: 21702.
• Citation: 152 Wash. 448,277 P. 988
• Parties: ROGERS v. JOUGHIN et al.
• Court: Washington Supreme Court

277 P. 988

152 Wash. 448

ROGERS v. JOUGHIN et al.

No. 21702.

Supreme Court of Washington

June 3, 1929

Department 2.

Appeal from Superior Court, King County; John A. Frater, Judge.

Action by Floyd G. Rogers, individually and as executor of the estate of Cora Edith Rogers, deceased, against Loula M. C Joughin and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Furber & Furber, of Seattle (Lewis M. Dawson, of Seattle, of counsel), for appellant.

Carkeek McDonald & Harris, of Seattle, for respondents.

FRENCH J.

Floyd G. Rogers and Cora Edith Rogers, his wife, were married in October, 1917. Cora Rogers had prior thereto been married to a man by the name of Woodrow, had been divorced, and in the divorce proceedings had been awarded certain real property in the city of Seattle, which belonged to her at the time of her marriage to Mr. Rogers. She also had a small bank account, and thereafter inherited certain property from her father and mother. Cora Rogers died in January, 1928. In August, 1927, she purchased from the Metropolitan Life Insurance Company a paid-up annuity bond providing for certain payments to her during her lifetime, the principal sum payable to her two sisters, a nephew and a niece. Shortly after the death of Mrs. Rogers, Mr. Rogers was appointed executor under her will, he, being named as a beneficiary thereunder, being suitable to administer the estate, whereupon for the first time he discovered this annuity bond, and this action was instituted to recover thereon.

The theory of plaintiff's action is set forth in the following paragraphs of his complaint:

'II. That at all times herein mentioned the defendant Metropolitan Life Insurance Company, has been and now is a corporation, duly organized under the laws of the State of New York, and doing business in the State of Washington. That the defendants Loula M. C. Joughin, Ruby B. Carlton, Carlton C. Joughin and Virginia M. Joughin are named as beneficiaries and claim some interest in the paid up annuity bond and proceeds thereof, hereinafter referred to.

'III. That all the property of plaintiff and his wife, said Cora Edith Rogers whether existing at the time of marriage or since acquired, has been commingled, invested and reinvested, and that all property of said parties and each of them at all times during their married life was, and by said parties was agreed to be, community property. That the major portion of the assets of said marital community consisted of United States Liberty Loan Bonds, kept in a safe deposit box to which each of said parties had access. That said Liberty Bonds were acquired out of moneys earned by plaintiff in the real estate and brokerage business, during the existence of said marital community.

'IV. That at all times during the marital life of said parties it was understood and agreed by and between them, that all of their property whether acquired separately or as a community, should upon the death of either, go to the survivor, to the exclusion of all collateral heirs. That mutual wills were executed to carry said agreement into effect. That on or about July, 1927, said Cora Edith Rogers was informed by physicians that she was suffering from cancer and had but a short time to live. That in pursuance of said mutual agreement, plaintiff and his wife on the 11th day of August, 1927, made and executed their last mutual wills, each leaving all property whether community or separate, to the surviving spouse. That the will of Cora Edith Rogers made at said time, naming the plaintiff as executor and sole beneficiary, is the identical will referred to in paragraph one of this complaint and admitted to probate on the 31st day of January, 1928, in the above entitled court.

'V. That immediately after the execution of said wills, towit, on or about the 17th day of August, 1927, the said Cora Edith Rogers in violation of said mutual agreement and wills, and secretly, fraudulently and without the knowledge or consent of the plaintiff, took from said joint safe deposit box certain of the United States Liberty Loan Bonds above referred to of the approximate value of Nine Thousand Four Hundred Eighty-three and 71/100 ($9,483.71) Dollars and converted and paid the same to the Metropolitan Life Insurance Company, a corporation, one of the defendants above named, for and in consideration of the issuance to her of a paid-up Annuity Bond (Bond No. 2332 A. B.) of said Company, the exact contents of which are to plaintiff unknown; but that plaintiff is informed and believes and therefore states the fact to be that said Annuity Bond provided for a payment of One Hundred Fifty ($150.00) Dollars quarterly to Cora Edith Rogers, during her lifetime, with the principal sum of $9,843.71, less the payments to Cora Edith Rogers in her lifetime, payable on the decease of said Cora Edith Rogers to her sister, Loula M. C. Joughin, her sister Ruby B. Carlton, her nephew Carlton C. Joughin and her niece Virginia M. Joughin, share and share alike.'

The case was tried before the court without a jury, judgment rendered denying the relief sought, and this appeal follows.

Appellant claims the right to recover on two theories, first, that it was mutually agreed between Floyd Rogers and Cora Rogers that each would will to the other all property owned or acquired; second, that it was mutually agreed that all of the property belonging to them should be community property, and, as a matter of fact, it was so commingled, handled, and treated as to make it community property under the decisions of this court.

Answering the first contention of counsel, it must be remembered that the will of the testator does not take effect until his death, and does not in any manner prevent the testator from disposing of his property during his lifetime. Carman v. Carman, 84 Wash. 402, 146 P. 833. Where mutual wills have been executed, and no reference is made therein to any agreement for the execution of such wills, parol evidence of such oral agreement is not admissible. In re Edwall's Estate, 75 Wash. 391, 134 P. 1041; Dolan v. Weir, 134 Wash. 560, 236 P. 285.

If it be conceded that the effect of the agreement which is pleaded in the above-quoted portions of the complaint was simply an agreement to make a will, then, even though not an...