Swingley v. Daniels

• Decision Date: 21 February 1923
• Docket Number: 17497.
• Citation: 123 Wash. 409,212 P. 729
• Court: Washington Supreme Court
• Parties: SWINGLEY v. DANIELS et al.

212 P. 729

123 Wash. 409

SWINGLEY v. DANIELS et al.

No. 17497.

Supreme Court of Washington

February 21, 1923

Department 1.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by George A. Swingley against Alfred Daniels, executor of George W. Boyce, deceased, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

H. D. Moore and Ralph H. Higgins, both of Seattle for appellants.

Geo. A Custer, of Seattle, for respondent.

BRIDGES J.

By this action the plaintiff sought to obtain the title to some lands in King county. The facts, which are very little in dispute are these: About 1907, George W. Boyce and his wife, Alice became the owners of the land in question and thereafter resided on it until the death of Mrs. Boyce, in August, 1913. Mr. Boyce continued to reside there until his death in April, 1921. Three children, to wit, Ada M. Hearn, Lee B. Swingley, and the plaintiff, being the issue of a former marriage, survived Mrs. Boyce. Not long after her death, Mr. Boyce visited the office of E. L. Rinehart, an attorney of Seattle, and inquired of him whether the plaintiff had asked him to draw certain deeds, and was informed that no such request had been made. Mr. Boyce then told the attorney that he had made an oral agreement with the plaintiff whereby he and his brother and sister were to deed to him the interest acquired by them, through their mother's death, in the King county land, in consideration of which he was to make his will, giving to them, not only this tract of land, but anything else he might own at the time of his death, and also give to them his quitclaim deed to certain lands in the state of Illinois, owned by Mr.

Boyce before her marriage to him, and that he did not claim any interest whatsoever in the Illinois lands. Mr. Boyce then asked Mr. Rinehart to draw the necessary deeds and will to carry into effect the oral agreement.

This conversation was probably on October 31, 1913. Mr. Rinehart asked Mr. Boyce to go to another attorney in the building to have his will drawn, stating that meanwhile he would prepare the deeds in question. This program was carried out. Deeds dated October 31, 1913, from the plaintiff and his brother and sister, conveying the King county real estate to Mr. Boyce were duly executed and delivered. On the same date, Mr. Boyce executed and delivered the quitclaim deeds to the Illinois property and made a will which, after disposing of two or three minor bequests, gave to the plaintiff and his brother and sister all of the rest and residue of his property. The deed to the King county property and the will were left in possession of Mr. Rinebart for about a year, when they were turned over to Mr. Boyce, Mr. Rinehart retaining a carbon copy of the will. On January 1, 1917, Mr. Boyce deeded the King county property to the defendant Daniels, and a short time thereafter he made a new will, giving all of his property to the defendant Daniels, revoking all previous wills, and in March, 1921, just before his death, he made another deed to Daniels of the property in question. The testimony shows that Daniels did not pay any consideration for the deeds running to him.

Before the bringing of this suit, Ada M. Hearn and Lee B. Swingley conveyed and assigned their interest in the subject-matter to the plaintiff. The last will and testament of Mr. Boyce was duly probated, and the plaintiff filed his claim against the estate of the deceased, setting up his right to the property involved in this action, which claim was rejected, and this suit followed. The trial court found for the plaintiff and entered a decree adjudging that the defendants Daniels and wife held the King county property in trust for the plaintiff, and that they had no interest in the property, canceling and annulling the two deeds from Mr. Boyce to Daniels and directing that, after the payment of the claims of creditors and the expenses of administration, all the assets of the estate be distributed to the plaintiff, and ordering Daniels and wife to make, execute, and deliver to the plaintiff their deed to the property. Defendants have appealed.

Appellant's motion to separately number and state the causes of action in their complaint, and their demurrer to the complaint on the ground that several causes of action were improperly united and that there was a misjoinder of parties defendant, and the separate demurrer of Mrs. Daniels, are not well taken. The complaint concerns but one matter, and was properly stated in one cause of action. Beyond question, Daniels and wife were necessary parties defendant, because it was from them that the respondent was trying to take the property. It is not necessary for us to determine whether Daniels, as executor of the Boyce will, was a necessary or proper party, because the demurrer would not reach that question.

It is next assigned as error that the court permitted the respondent and Mr. Rinehart, the attorney, to testify concerning transactions with the deceased. This claim of error, in so far as it affects the respondent, is easily disposed of. He did not testify concerning any conversations with the deceased. His testimony went no farther than to show that Mr. Boyce executed the first will, and that he saw the deeds above mentioned in company with such will, and that the carbon copy introduced in evidence was a true copy of the first will made by Mr. Boyce.

A somewhat more difficult question arises, however, concerning the testimony of Mr. Rinehart. This case must stand or fall upon his testimony. He is, or was at the time of the trial, one of the attorneys for the respondent, and had been such for a long time prior thereto. He testified that he had made no arrangements with the respondent concerning attorney's fees in this action, and that he did not have any agreement for a contingent fee or for any interest in any property which might be acquired by the plaintiff in the action; that he would charge his client a reasonable fee, and that he would probably do as attorneys usually do, 'charge more when we are successful than when we are not.'

Section 7722, Pierce's Code, provides:

'That in an action or proceeding where the adverse party sues or defends as executor * * * of any deceased person or as deriving any right or title by, through or from any deceased person, * * * then a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him, or any statement made to him by any such deceased * * * person.'

The exact question to be decided is whether Rinehart is a 'party in interest.' This identical question has seldom been before the courts, and is but little discussed in the books. So far as the decisions go they unanimously hold that where the attorney, in a case of this character, has an arrangement with his client that he is to receive an interest in whatever may be recovered by the action, or is...