Thilman v. Thilman

• Decision Date: 20 May 1948
• Docket Number: 30483.
• Citation: 30 Wn.2d 743,193 P.2d 674
• Parties: THILMAN et al. v. THILMAN et al.
• Court: Washington Supreme Court

193 P.2d 674

30 Wn.2d 743

THILMAN et al. v. THILMAN et al.

No. 30483.

Supreme Court of Washington

May 20, 1948

Department 2

Suit by Margaret Thilman and another against Myrtle L. Thilman and others to set aside specified deeds and contracts and quiet title to realty, wherein named defendant asked that her title to the realty be quieted as against plaintiffs. From the decree, named defendant appeals and plaintiff cross-appeal.

Decree reversed and cause remanded with instructions.

Appeal from Superior Court, Yakima County; Hon. Robert J. Willis Judge.

V. O Nichoson, of Yakima, for appellant.

Tonkoff & Holst and Grady & Grady, all of Yakima, for respondents.

BEALS Justice.

Louis Thilman and his first wife settled in Yakima county some time prior to 1900. They had two children, Lillian Thilman and Florence Thilman, who, at the time of their father's death in 1912, were aged, respectively thirty-one and twenty-four years. Mrs. Thilman died, and Mr Thilman then married Margaret Thilman, one of the plaintiffs in this action. Louis and Margaret had three children: Louis Francis Thilman (referred to herein as Francis) and Paul Arnold Thilman (who, at the time of their father's death were aged, respectively, fifteen and nine years), and a third son, Leonard Thilman, who died, in infancy, prior to his father's decease.

During the year 1901, Louis and Margaret Thilman had acquired eighty acres of land, lying east of the city of Yakima, in the Terrace Heights district. Fifty-two acres of the land were irrigated; twenty-eight acres, having no water right, remained dry and uncultivated, and were referred to as the 'dry lands.'

Louis Thilman died, testate, in Yakima county, February 29, 1912. His will was admitted to probate, and his widow, Margaret Thilman, was appointed executrix thereof.

The estate consisted of the land, cash, some stock, household furniture, and farm machinery. The property was the community property of Louis and Margaret Thilman and her community half was distributed to her, while, under the will of Louis Thilman, there was distributed to the widow six hundred dollars in trust for Lillian Thilman, six hundred dollars in trust for Florence Thilman, to Margaret personally all cash, and to her all personal property belonging to the estate, with full power of use and sale during her lifetime. Any of Louis Thilman's half of the personal property remaining after her death was to be distributed, one fourth to each of the children of Louis Thilman. There was, then, distributed to Margaret Thilman her community half interest in the real estate and, under the will of Louis Thilman, a life estate in the other undivided one half thereof, together with the issues and profits accruing therefrom. In addition to this life estate, Margaret Thilman was, by the decree of distribution pursuant to the will of her late husband, vested with the power to sell the twenty-eight acres of dry land referred to above.

Louis Thilman also devised to his four children, one fourth to each, his interest in the land, subject to the life estate (with power to sell the dry land) in favor of his wife, Margaret Thilman, and this interest, or remainder, in the land was distributed to the children.

Under the decree of distribution, title to the eighty acres of land was vested as follows: One half in Margaret Thilman, she also possessing a life estate in the other half, that half, at her death, to go to the four children of Louis Thilman, each of whom, consequently, owned an undivided one-eighth interest in the eighty acres, subject to Margaret Thilman's life estate in their father's one half thereof.

All of the children continued to live on the ranch with Margaret, their stepmother and mother. The two girls never married, and have lived secluded lives. At the time of his father's death, Francis ceased attending school and assisted his mother in conducting the farm.

In 1931, Francis Thilman married Myrtle, now his widow, and the defendant in this action. Francis died, childless, July 15, 1945, leaving a will, which was admitted to probate, pursuant to which his entire estate was distributed to Myrtle Thilman by a decree bearing date February 27, 1946. Paul Thilman married Katherine, November 8, 1929, and, at his death, which occurred July 13, 1940, left surviving him his widow, Katherine (now Katherine Engberg, one of the plaintiffs herein), and a minor daughter, Margaret Mary. In the matter of the estate of Paul Thilman, deceased, the entire estate was awarded to his widow, Katherine Thilman, in lieu of homestead.

Francis Thilman, at all times after his father's death, lived upon the ranch and assisted him mother in operating the same. After his marriage, Francis and his wife continued to live on the ranch, raising their own chickens and turkeys for sale, Francis taking a more and more active part in caring for the property.

November 4, 1929, Margaret Thilman delivered to her son Francis eight thousand dollars, it appearing that he had never received more than a mere living for the years he had devoted to working on and caring for the farm property.

Paul Thilman, during most of the time after his marriage, resided upon a ten-acre fruit orchard, which his mother had purchased in 1918, farming the land and receiving the income therefrom. September 16, 1937, Margaret Thilman deeded this tenacre tract to Paul and he continued to live on the property until his death, July 13, 1940.

As above stated, Paul's entire estate, including the ten-acre farm and his remainderman's interest in the eighty-acre tract, was distributed to his widow, Katherine.

After Paul's death, the family situation was as follows: The original farmhouse was occupied by Margaret Thilman and her two stepdaughters. It appears from the evidence that these two women were, to say the least, peculiar. They never associated with outsiders and would run, one witness said, 'like wild hares' from strangers. Apparently, they seldom, if ever, left the ranch; they dressed roughly, and worked hard on the farm.

At the time of filing the original complaint in this action, the court signed an order appointing Katherine Engberg as guardian ad litem for Lillian and Florence Thilman, who are described in the order as 'incompetents,' and for Margaret Mary the minor child of Paul and Katherine.

It appears that Paul had always been Margaret Thilman's favorite son. While he did not live with her on the ranch, he visited her almost every day. Mrs. Thilman had purchased two automobiles, one being used by Paul and the other by Francis. It is evident that Mrs. Thilman passed most of her time upon the farm; that she was a rather opinionated woman, and, doubtless, not particularly easy to get along with.

Paul's widow and daughter continued to live upon the ten-acre tract referred to above.

Francis and Myrtle were living on the farm in a made-over potato warehouse, distant about one hundred feet from his mother's home. He was a hard-working farmer of limited education. Outside of the eight thousand dollars received from his mother in 1929 for past labor upon the farm, he received comparatively little for his labor. He and his wife raised and sold chickens and turkeys, and, apparently, lived very modestly.

It appears that, September 16, 1937, when Margaret deeded the ten-acre ranch to Paul, she had been taken suddenly ill and was about to be hospitalized. She recovered, but it would seem that she executed the deed in contemplation of what might have proved to be a serious illness.

Soon after Paul's death, Margaret Thilman, together with her son Francis, and the latter's wife, called at the office of Rigg, Brown & Halverson, lawyers, at Yakima. They talked with Mr. Halverson, Mrs. Thilman explaining her situation to him, saying that her other son, Paul, had died a few days Before . She told of having given Paul the ten-acre tract, and stated that Francis had worked on the ranch for years and that she wanted to turn all of her property over to him, reserving a life estate for herself.

As a result of this interview, several instruments were prepared: (1) An agreement between Margaret Thilman and Francis; (2) a quitclaim deed from Mrs. Thilman to Francis; (3) a bill of sale covering personal property; (4) a will, whereby Mrs. Thilman devised all of her estate (save one hundred dollars to her granddaughter, Margaret Mary) to her son Francis, and (5) a document, one part of which was signed by Margaret, and the other by Francis, referring to the eight thousand dollars which Francis received in 1929.

These documents, and others bearing later dates, will be more fully discussed hereafter.

December 16, 1946, the plaintiffs in this action, Margaret Thilman and Katherine Engberg, individually and as guardian ad litem for Lillian Thilman, Florence Thilman, and for her daughter, Margaret Mary Thilman, filed their complaint, naming Myrtle L. Thilman and all persons unknown claiming by, through, or under Myrtle L. Thilman, as defendants.

January 24, 1947, plaintiffs having retained other counsel, an amended complaint was filed, naming the same parties, with the exception that Katherine Engberg was not named in the caption as guardian ad litem for her daughter, Margaret Mary, Mrs. Engberg having previously been appointed guardian ad litem for Lillian and Florence Thilman, described in the order as 'incompetents,' and for Margaret Mary, her daughter, a minor.

In their amended complaint, plaintiffs alleged the distribution of the estate of Paul Thilman to his widow Katherine; that plaintiff Margaret Thilman and Louis Thilman had been husband and wife; that the two plaintiffs Lillian and Florence Thilman were the daughters of Louis Thilman by a prior marriage; that Louis and Margaret...