Stewart v. Bank of Endicott

• Decision Date: 09 October 1914
• Docket Number: 11965.
• Parties: STEWART et al. v. BANK OF ENDICOTT et al.
• Court: Washington Supreme Court

143 P. 458

82 Wash. 106

STEWART et al. v. BANK OF ENDICOTT et al.

No. 11965.

Supreme Court of Washington

October 9, 1914

Department 1. Appeal from Superior Court, Whitman County; R. L McCroskey, Judge.

Action by Barr P. Stewart and others against the Bank of Endicott and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

F. L Stotler, of Spokane, for appellants.

John Pattison, of Spokane, for respondents.

GOSE, J.

This is an action to recover the possession of promissory notes certificates of deposit, and money, amounting in the aggregate to more than $27,000. The defendants severally demurred to the complaint, for the reason that it does not state facts sufficient to constitute a cause of action. The demurrers were sustained, and, the plaintiffs electing to stand on their complaint, a judgment was entered dismissing the action. The plaintiffs appealed.

The alleged cause of action has its basis in a written instrument executed by the several appellants and one Alexander Stewart in his lifetime. The instrument, omitting signatures and the attestation clause, is as follows:

'Whereas, the undersigned, Alex Stewart, of Waitsburg Washington, has heretofore caused to be conveyed and transferred to Barr P. Stewart, Elizabeth C. Stewart, Charles B. Stewart, Edgar L. Stewart, and Miner F. Stewart, certain real and personal property, situate both in the states of Florida and Washington, and other states; and whereas, all of the property, both real, presonal, and mixed, now held and possessed by Barr P. Stewart, Elizabeth C. Stewart, Charles B. Stewart, Edgar L. Stewart, and Miner F. Stewart, was received indirectly in trust from Alex Stewart and belongs to the said Alex Stewart; and whereas, it is understood between the parties hereto that all property, both real, personal, and mixed, held and possessed by Barr P. Stewart, Elizabeth C. Stewart, Charles B. Stewart, Edgar L. Stewart, and Miner F. Stewart, at the time of the death of said Alex Stewart, should he not survive them shall vest in said parties in fee and become their property absolute, sharged only with the maintenance of Maria C. Stewart; and whereas, it is understood between the parties hereto that all of said property, both real, personal, and mixed, now held and possessed by the said Barr P. Stewart, Elizabeth C. Stewart, Charles B. Stewart, Edgar L. Stewart, and Miner F. Stewart, and to be hereafter caused to be conveyed to them by the said Alex Stewart, and held and possessed in trust for him, shall be at all times during the life of said Alex Stewart under his control and direction, and the said parties herein named holding and possessing the same shall convey and dispose of the same under the order and direction of the said Alex Stewart, and to any party or parties named by him; and whereas, Maria C. Stewart, wife of Alex Stewart, is not now of sound and disposing mind and memory, and is being cared for and looked after by the said Alex Stewart, it is understood that should shd survive Alex Stewart, that all of the property, both real, personal, and mixed, heretofore and hereafter caused to be conveyed and transferred to Barr P. Stewart, Elizabeth C. Stewart, Charles B. Stewart, Edgar L. Stewart, and Miner F. Stewart, shall be and remain a trust fund in their hands for the maintenance and support of the said Maria C. Stewart so long as she lives:

'Now, therefore, it is understood and agreed by and between Alex Stewart, as party of the first part, and Barr P. Stewart, Elizabeth C. Stewart, Charles B. Stewart, Edgar L. Stewart, and Miner F. Stewart, as parties of the second part, witnesseth: That first party, being in fact owner of all the property, both real and personal, now held and possessed by second parties in both the states of Washington and Florida in trust for first party, and the second parties are to hereafter hold and possess other property, both real, personal, and mixed, conveyed and transferred to them in trust for first party, all of said property is held and possessed and to be held and possessed by second parties, subject at all times to the control and disposition of first party during his lifetime, and in order that first party do have control and disposition of said property, second parties agree to convey and transfer said property at any time to whomsoever directed by first party and pay the proceeds thereof to first party. The sole and only purpose of this agreement is to secure the maintenance and support of first party and his invalid and demented wife in comfort and plenty so long as each of them shall live; that is, furnish them a good home, with all the comforts of life and proper care in their declining years, after which it is the desire of first party that the remainder thereof shall go to second parties as their possession and the records shall then show. It is expressly understood that all of the parties hereto in the execution of this agreement fully assent and agree to all of the terms of this agreement, as well as all the facts herein recited in relation thereto, and that the same is binding both severally and jointly.'

We have italicized portions of the instrument to give prominence to its dominant purpose. After setting out this instrument, the complaint alleges that Alexander Stewart died in the state of Florida, in the month of November, 1912; 'that under and by virtue of said agreement, hereinbefore specifically set out, said parties of the second part, being the plaintiffs herein, became the owners of, and under and by virtue of said agreement and in pursuance thereof, said Alex. Stewart transferred to them under said agreement, during his lifetime, the following described personal property, to wit.' This is followed by a description of the notes and certificates of deposit and by a statement of the amount of money in respondent bank. It is further alleged that in January, 1910, Alexander Stewart made a last will and testament, setting it forth in haec verba; that in March 1913, the superior court of Whitman county entered an order, admitting the will and testament to probate and appointing the respondent Sherman administrator of the estate with the will annexed; that he qualified and is acting as such administrator; that he filed a verified inventory embracing the property in controversy, in which he represents that it was the community property of his intestate and his surviving widow, ...