Togliatti v. Robertson

• Citation: 29 Wn.2d 844,190 P.2d 575
• Decision Date: 25 February 1948
• Docket Number: 30245.
• Parties: TOGLIATTI v. ROBERTSON et al.
• Court: United States State Supreme Court of Washington

190 P.2d 575

29 Wn.2d 844

TOGLIATTI v. ROBERTSON et al.

No. 30245.

Supreme Court of Washington, En Banc.

February 25, 1948

Action by Katy Togliatti against Lulu Morello Robertson individually, and Lulu Morello Robertson as administratrix of the estate of John Morello, deceased, and another, to determine interest of the parties in certain United States savings bonds purchased by the deceased, John Morello. From a judgment for plaintiff, the defendants appeal.

Affirmed.

MILLARD and SIMPSON, JJ., dissenting.

Appeal from Superior Court, Kittitas County Arthur McGuire, judge.

Stanley Seddon, of Cle Elum, for appellants.

George E. Canfield, of Cle Elum, and Edgar H. Canfield, of Goldendale, for respondent.

SCHWELLENBACH Justice.

This is an appeal from a judgment awarding certain United States savings bonds (purchased by the deceased, John Morello) to the plaintiff, and decreeing that neither of the defendants owned any interest therein.

The facts were stipulated between the parties at the time of trial. John and Lulu Morello were married January 17, 1918 in Montana. Later they moved to Washington, living in Cle Elum until they separated in 1928. On July 14, 1928, after due proceedings regularly had, Lulu Morello obtained an interlocutory decree of divorce from her husband, John. No final decree of divorce was ever entered, but subsequent to the interlocutory decree the parties never resumed marital relations.

From that time on the parties lived wholly separate and apart. Neither thereafter contributed to the support of the other or otherwise accounted to the other for any income received, and neither asserted any claims to any subsequent property accumulated by the other during his lifetime, and each managed his individual business and affairs free from any interference or direction by the other during this time.

On September 12, 1929, after in good faith obtaining a marriage license, Lulu Morello and Olaf Robertson went through a marriage ceremony, and thereafter lived together as husband and wife.

In the month of June, 1944, John Morello purchased, with earnings acquired subsequent to the entry of the interlocutory decree, the four United States savings bonds involved in this action. The bonds were inscribed and made payable in the alternative to 'Mr. John Morello or Miss Katy Togliatti.'

John Morello died intestate in Cle Elum July 26, 1946. In August, 1946, Lulu Morello and Olaf Robertson secured a marriage license and went through a second ceremony of marriage. On September 3, 1946, Lulu Morello Robertson was appointed, and qualified as the administratrix of the estate of John Morello, deceased.

Respondent claims title to the bonds by virtue of the fact that she is named coowner, under the provisions of § 315.32(c) of the United States Treasury Department regulations governing United States savings bonds, Department Circular No. 530, reading as follows: 'If either coowner dies without having presented and surrendered the bond for payment to a Federal Reserve Bank or the Treasury Department, the surviving coowner will be recognized as the sole and absolute owner of the bond, and payment will be made only to him.' Fed.Register, Vol. 9, Part 4, p. 4787. And also by virtue of § 1, chapter 14, Laws of 1943, Rem.Rev.Stat.Supp. 1943, § 11548-60.

Appellant, Lulu Morello Robertson, claims title by virtue of the fact that the marriage between herself and John Morello had never been legally dissolved; that she is his widow; that the bonds are community property; and that the husband had no right to give community property away.

Rem.Rev.Stat. § 988 provides that if, after hearing, the court determines that either party to a divorce action, or both, is entitled to a divorce, an interlocutory order must be entered accordingly. Rem.Rev.Stat. § 988-1 provides for the confirmation of such order and the entry of a final decree of divorce, to be made upon the motion of either party, which may be done at any time after six months shall have expired after the entry of the interlocutory order, and upon the conclusion of an appeal, if taken therefrom. We have held, that where one of the parties to a divorce action dies Before the entry of the final decree, the action abates, and the interlocutory order, in its entirety, becomes a nullity. State ex rel. Atkins v. Superior Court, 1 Wash.2d 677, 97 P.2d 139; Dougherty v. Dougherty, 24 Wash.2d 811, 167 P.2d 467.

Upon the death of John Morello, therefore, no final decree having been entered, the interlocutory order entered in the case of Lulu Morello v. John Morello on July 14, 1928, became a nullity, and Lulu Morello became his widow and his heir, entitled to any property of which he died seized. She became entitled, as his surviving spouse, to file a petition in his estate for the statutory allowance in lieu of homestead. In re Chisholm's Estate, 159 Wash. 674, 294 P. 973, 76 A.L.R. 279. If these savings bonds were his separate property, he did not die seized of them. They passed to Katy Togliatti, the surviving co-owner, upon his death. On the other hand, if the bonds were purchased with community funds, he had no right to make a gift of them by naming Katy Togliatti co-owner, and the bonds would be inherited by his widow.

Rem.Rev.Stat. § 6890 provides: 'Property and pecuniary rights owned by the husband Before marriage, and that acquired by him afterward by gift, bequest, devise or descent, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of his wife, and he may manage, lease, sell, convey, encumber, or devise, by will, such property without the wife joining in such management, alienation, or encumbrance, as fully and to the same effect as though he were unmarried.'

Rem.Rev.Stat. § 6891 provides: 'The property and pecuniary rights of every married woman at the time of her marriage, or afterward acquired by gift, devise, or inheritance, with the rents, issues, and profits thereof, shall not be subject to the debts of contracts of her husband, and she may manage, lease, sell, convey, encumber or devise by will such property, to the same extent and in the same manner that her husband can, property belonging to him.'

Rem.Rev.Stat. § 6892 provides: 'Property, not acquired or owned as prescribed in the next two preceding sections, acquired after marriage by either husband or wife, or both, is community property. The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof.'

We have been unable to find any case in which this precise question has been presented. In Re Witte's Estate, 21 Wash.2d 112, 150 P.2d 595, 601, we laid down the following rules:

'Property and pecuniary rights owned by either husband or wife Before marriage or acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, are his or her separate property; and all other property acquired after marriage by either spouse is community property. Rem.Rev.Stat. §§ 6890, 6891, 6892, [P.C. §§ 1432, 1424, 1433]. * * *

'The status of property, whether real or personal, is to be determined as of the date of its acquisition. * * * 'The status of property, when once fixed, remains so in character until changed by deed, by agreement of the parties, by operation of law, or by the working of some from of estoppel.'

In Wampler v. Beinert, 125 Wash. 494, 216 P. 855, 856, an action for damages because of personal injuries incurred by the wife, we held that the husband, having abandoned the wife, did not have authority, as the manager of the community, to enter into a settlement and a release of the claim for damages. We said: 'While a husband, under section 6892, Rem.Comp.Stat. [P.C. § 1433], has the management and control of the community property and is a necessary party plaintiff in an action to recover damages resulting from injury to the wife, he ceases to be a necessary party, and has no authority to release or discharge such claim, if in fact the wife is living separate and apart from her husband caused by the desertion of the husband. By repudiating his duties, the husband releases his authority, and after the husband abandons his wife and they are living separate and apart his authority over a claim for injuries to the wife is not re-established by the husband merely returning to the community wherein the wife resides, and his lack of authority will continue until he does in good faith resume the duties and obligations of a husband toward the wife.'

In Yates v. Dohring, 24 Wash.2d 877, 168 P.2d 404, 406, the husband and wife had separated, and the wife sued for divorce. An order of default had been entered but there had been no entry of an interlocutory decree. We held that the husband was not liable for the charges for the wife's board and room, incurred subsequent to the separation, saying: 'Where a spouse by words or conduct, evidences an intention not to maintain the marriage state in its family aspects and disavows all marital obligations, the other is freed from the liabilities incident to the marital status which are based upon the reciprocal aspects of the relationship. The old and familiar notice given to the public by a spouse that the other had left his bed and board without cause and that he will not be responsible for debts contracted hereafter by the other, is not an unfair statement of the rights of a spouse in that situation and the reason for it. One who stands ready and willing to discharge one's marital obligations in full will not have one's rights extinguished by the acts of the other. But one who voluntarily absents oneself from...