Whitaker v. Titus

• Decision Date: 07 January 1932
• Docket Number: 22695.
• Citation: 6 P.2d 649,166 Wash. 225
• Parties: WHITAKER v. TITUS et al.
• Court: Washington Supreme Court

6 P.2d 649

166 Wash. 225

WHITAKER v. TITUS et al.

No. 22695.

Supreme Court of Washington

January 7, 1932

Department 1.

Appeal from Superior Court, Spokane County; William A. Huneke Judge.

Action by Marguerite Titus Whitaker against Jessie Edna Titus, as executrix of the last will and testament of Stanley H. Titus deceased, and others. From an adverse judgment, defendants appeal.

Reversed and remanded, with directions.

S. Edelstein, of Spokane, for appellants.

Graves Kizer & Graves, of Spokane, for respondent.

BEELER J.

The respondent brought this action to impress upon certain lands in Whitman county and upon a part of the proceeds of an executory contract for the sale of these lands a trust in her favor as against the appellant Jessie Edna Titus, in her own right and as executrix of the last will of Stanley H. Titus deceased, and to compel a conveyance of the property by the appellant to the respondent. The Fidelity Savings & Loan Association was joined as a defendant because it held in escrow the executory contract of sale, upon which it was expected payments would be made, during the pendency of this action. Frances Gesellchen presumably was made a party defendant because her interest as legatee under the will of Stanley H. Titus might be adversely affected by a decree in favor of the respondent.

Stanley H. Titus, a physician and surgeon who practiced in Spokane for many years, was a brother of the respondent. She alleged in her complaint that their mother, Ellen Titus, had owned the lands in controversy, and on October 3, 1923, had agreed to sell the lands under an executory contract of sale to one Tate and wife; that by a deed dated January 10, 1924, acknowledged January 14, 1924, Ellen Titus conveyed the lands to the respondent and her brother, Stanley, subject to the contract to Tate and wife, and by an instrument dated and acknowledged January 14, 1924, assigned to them her right to receive the unpaid part of the purchase price; that the respondent and Stanley thereupon executed and deposited with the escrow holder their deed of the lands to Tate and wife for delivery to them when they should have fully performed their contract of purchase. The respondent further alleged that the deed and the assignment from her mother to herself were intended as an absolute gift of one-half of the lands and of the money that would be paid on the contract, but that as to Stanley she imposed as a condition to making the gift that he should irrevocably devise and bequeath to the respondent, if his death should occur Before hers, the one-half interest in the lands and the contract so to be conveyed to him by his mother, that this condition was imposed by the mother for the benefit of the respondent, and that Stanley agreed to meet the condition and immediately executed and delivered to his mother on January 14, 1924, a will whereby he devised and bequeathed to the respondent his residuary estate, which, had he died then, would have included his one-half of the lands and the proceeds of the contract. It was also alleged in the complaint that at the time of the transactions just mentioned Stanley's wife was Eleanor, but that they were estranged and were living apart, and that later they were divorced, the final decree having been entered January 22, 1927, and that Eleanor Titus did not have or claim any right or interest in the property of Stanley Titus; that immediately after the divorce Stanley Titus married the defendant Jessie Edna Titus; that he died April 23, 1929, leaving a will dated January 30, 1928, which was admitted to probate by the superior court for Spokane county on May 20, 1929, and that by this will the residuary estate, including a one-half interest in the lands and the contract in dispute, were given to the defendant Jessie Edna Titus, who claims the right to administer upon the lands and the contract and ultimately to receive them upon distribution as a part of the residuary estate.

The prayer of the complaint is that the defendant Jessie Edna Titus be declared to hold the apparent interest of the testator in the lands and the contract in trust for the respondent and that a conveyance of the property be compelled accordingly.

The answer of Jessie Edna Titus, individually and as executrix (the only answer in the record here), admitted all of the allegations of the complaint except those to the effect that the gifts by Ellen Titus to the respondent and Stanley were gifts in praesenti; that the gift to Stanley was conditioned that he pass the property by will to the respondent if she survived him; that Stanley promised so to pass the property; and that he executed his will January 14, 1924, to meet such a condition or fulfill such a promise. It was pleaded affirmatively in the answer that, if there was a contract between Ellen Titus and Stanley that the latter should make a will in favor of the respondent, the contract was oral and hence void under the statute of frauds. It was also alleged affirmatively that the conveyances made by Ellen Titus to the respondent and Stanley Titus about January 14, 1924, were not to take effect in possession and enjoyment by the grantees until the death of the grantor, and that the grantor did in fact reserve and actually receive for the rest of her life all benefits derived from the lands conveyed and all payments made by Tate and wife upon the contract of sale; that the conveyances by Ellen Titus to the respondent and Stanley Titus were made at the instance of the respondent and her husband, Fred J. Whitaker, for the purpose of obviating probate proceedings upon the estate of Ellen Titus and evading the payment of inheritance taxes to the state and estate taxes to the United States; that without those conveyances there would have accrued to the state and the United States substantial sums as inheritance and estate taxes; and that by reason of such evasion of taxes, accomplished at the instance and with the help of the respondent, she did not come into court with clean hands.

The reply put in issue the material allegations of the answer.

The superior court, after a somewhat lengthy trial, without a jury, found facts and decreed as follows:

'1. That on the 14th day of January, 1924, one Ellen Titus, now deceased, did execute and deliver to the said Stanley H. Titus and this plaintiff, Marguerite Titus Whitaker, her certain deed of date January 10, 1924, filed for record in the Auditor's office of Whitman County, in this state, on the 18th day of January, 1924, conveying to the said Stanley H. Titus and the said Marguerite Titus Whitaker, this plaintiff, the following described real estate to-wit: (Description of about 600 acres of land in Whitman County, Washington).

'2. That on the said 14th day of January, 1924, and Before the execution and delivery of said deed, and as a consideration therefor, it was agreed and promised by the said Stanley H. Titus to the said Ellen Titus that he would take and hold the undivided one-half interest in said real estate conveyed to him by said deed for and during his natural lifetime, and that he would devise to the said Marguerite Titus Whitaker, this plaintiff, his undivided one-half interest therein, to the end that upon his death his interest in said real estate should pass to her in fee simple; and thereupon and on said date and Before the execution of said deed in execution and evidence of said agreement on his part he did execute his certain will and testament wherein and whereby, amongst other things, he devised the said real estate to this plaintiff, and then and there delivered the same to Frederick J. Whitaker, the husband of this plaintiff, for her, and it was by him thereafter delivered to her. By virtue of said deed and of said contract and agreement, the said Stanley H. Titus took said estate in trust for his own use and enjoyment during his natural lifetime, and to devise the same to this plaintiff and not otherwise: which said trust is hereby decreed and established.

'3. That on said date there was outstanding a certain contract between the said Ellen Titus, now deceased, and one W. P. Tate and Gladys, E. Tate, his wife, then in escrow with the defendant Fidelity Savings & Loan Association, by the terms of which the said Ellen Titus had contracted to sell on certain terms and conditions as to deferred payments to the said W. P. Tate and Gladys E. Tate his wife, said real estate, and on the 14th day of January, 1924, the said Ellen Titus did execute and deliver a certain instrument of assignment whereby she assigned, transferred and set over to the said Stanley H. Titus and Marguerite Titus Whitaker, this plaintiff, said contract and all of her right, title and interest in and to the same by said instrument, further giving them full power to collect on the same as fully and completely as she could herself do, and said instrument of assignment further recited that she had that date deeded said real estate to the said Stanley H. Titus and Marguerite Titus Whitaker, this plaintiff, and that this assignment was made for the purpose of enabling them to collect upon said contract, and to authorize them to receipt for payments therefor as fully as she could herself do if this assignment had not been made. Said assignment by said Ellen Titus as to the one half interest assigned therein to the said Stanley H. Titus was made upon the same contract and condition and upon the same trust, and not otherwise, as the contract and trust theretofore found in respect of said real estate; which said trust is hereby decreed and established.

'4. That the devise to the defendant Jessie Edna Titus by the will of the said Stanley H. Titus admitted to probate in this county on May 20, 1929, in so far as it covers or includes

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