White v. White, 5886-3-II

• Decision Date: 10 December 1982
• Docket Number: No. 5886-3-II,5886-3-II
• Citation: 655 P.2d 1173,33 Wn.App. 364
• Parties: Anastasia WHITE, Appellant, v. Leo C. WHITE, Respondent.
• Court: Washington Court of Appeals

Page 364

33 Wn.App. 364

655 P.2d 1173

Anastasia WHITE, Appellant, v. Leo C. WHITE, Respondent.

No. 5886-3-II.

Court of Appeals of Washington,

Division 2.

Dec. 10, 1982.

Thomas Morrow, Redmond, for appellant.

Sandra Cribbs, Seattle, Donald Cramer, Edmonds, for respondent.

PETRIE, Judge.

Plaintiff, Anastasia "Daisy" White, appeals from a decree quieting title to the family home in defendant, her son Leo White. Because the trial court imposed upon plaintiff a burden which the law does not, we reverse and remand for a new trial.

This action arises out of a serious dispute between two members of a closely knit family who had worked and even lived together for more than 35 years. Plaintiff, Daisy White, is the 94-year-old mother of defendant, Leo White, who is 72 years old and Daisy's eldest child. The White family, in addition to Leo and Daisy, consists of Daisy's other 2 children, Beatrice and Howard. Since 1947, they have owned and operated a family laundry and dry cleaning business in the Port Angeles area. This family business began during World War II when Daisy acquired the Olympic Laundry & Cleaners. Soon thereafter she bought out her primary competitor, the Cooperative Laundry. Although at first the businesses were solely Daisy's, she, through the years, has gradually and periodically divested herself of her ownership interest by sale or gifts to her 3 children. All 4 members of the White family worked in the laundries; however, Leo, shortly after discharge from military service in 1946, assumed the position of management and control.

Contemporaneous with the development of the family business was the creation and maintenance of a family home. This large house was purchased in 1947 and served as a residence for Daisy, Leo and his family, Beatrice and her family, and Howard. The funds used to maintain the family home came from the "White account" to which all 4 White family members contributed a share. Leo managed this account and also was given authority to draw checks upon Daisy's personal checking account. Leo was the only child to reside in the home continuously and, at the time of the trial below, he and his wife lived there with Daisy.

Although all the members of the White family participated, to some degree, in the important decisions to be made, it is clear that Leo was the primary manager and steward of his family's intertwined business and financial affairs. Leo was considered to be the trusted family figurehead, loved and depended upon by his mother.

In July 1971, Daisy signed a quit claim deed conveying the family home to Leo, reserving to herself a life estate therein. The deed recites that it was executed in consideration of "love and affection." It was recorded at Leo's request in August of 1971. Simultaneously upon execution of this deed she also signed a "Bill of Sale" which transferred all her interest in the Cooperative Laundry to Leo. No consideration for the sale is expressed on the face of the document. The dates of the Bill of Sale and the quit claim deed are the same; the person requesting the filing and recordation, Leo, is the same; the notary, Lucille Glenn, is the same.

In the Spring of 1979 Daisy contacted an attorney for the purpose of changing her will which had been drafted in 1976 by another attorney. In attempting to execute her wish that her home be shared by all her children, the attorney discovered that the home she now wished to dispose of by will had already been conveyed. Daisy claims she was unaware of this conveyance; thus, she brought this action to cancel the deed and quiet title in herself, alleging that transfer of title was the result of fraud, overreaching and undue influence by Leo. She claims that this transfer was never discussed between the parties and that Leo obtained her signature on the document through abuse of his trusted position. She argues that it must have been one of many documents Leo presented for her signature while she was seated at her sewing machine at the laundry and which, in her customary manner, she unquestioningly and unwittingly signed. Daisy claims that the document was notarized outside her presence and that she never received any legal advice before signing the deed. Leo claims the transaction was discussed between them and, in his answer, alleged that title was transferred to him in an effort to minimize federal and state taxes upon Daisy's death. He claims this gift was made freely, voluntarily, with full understanding and with the assistance of counsel.

At trial, the only testimony given by persons who were directly involved in the conveyance, other than the parties hereto, came from an attorney, Howard Doherty, who had prepared the quit claim deed and from his secretary, notary Lucille Glenn. Mr. Doherty's testimony reflects an understandable lack of memory. At best, he recalled dealing primarily with Leo in this transaction and did not recall discussing the transfer with Daisy. Mr. Doherty also testified that in 1976, when Daisy came to him to change her 1964 will, she requested that the house go to Leo upon her death. He, as he testified, in an attempt at humoring this elderly woman with an apparent lack of memory, did not wish to confront her directly and failed to inform Daisy that she no longer had a house to dispose of by will. According to Mr. Doherty's memory at the time of trial, because the conveyance of the house by quit claim deed in 1971 and its disposition under the will in 1976 were identical, no purpose would have been served in a needless confrontation over this fact. No attempt was made at trial to introduce the 1976 will in evidence.

Mrs. Glenn, on the other hand, had considerably better recall. She testified that in 1971 Daisy had visited the office twice to read over the documents before signing and that, although Mr. Doherty was not present either time, she had no doubt that Daisy, a vigorous and competent 81-year-old woman at the time, understood the nature of the transaction. Mrs. Glenn testified that she had never notarized a document outside the presence of the person whose signature was required.

The trial court, in resolving this factual dispute, recognized the necessity to reach a decision based upon building blocks of circumstantial evidence, inferences and credibility, ¹ and concluded that Daisy had "failed to carry her burden of proof that Leo White exerted undue influence" over her. In a post-trial motion, seeking (1) an amendment to the complaint by challenging also the Bill of Sale of the Cooperative Laundry and (2) a new trial based upon newly discovered evidence, plaintiff submitted her 1976 will and an affidavit from attorney Doherty. The express words of the 1976 will only gave Leo "the use, rents, and profits [of the home property] during his lifetime" and, thereafter, in fee to Howard and Beatrice. In his post-trial affidavit, Doherty retracted much of his trial testimony which had tended to show Daisy's gift of the house to Leo was not contrary to her intentions as expressed in her written wills. (The 1964 will and a note written by Lucille Glenn in June of 1971, also produced in the post-trial motion, revealed evidence which might have supported Daisy's position at trial). This request for a new trial and an amendment of the pleadings was denied.

Because of our disposition, it is unnecessary to consider plaintiff's challenge to many of the factual findings or plaintiff's claim of error in the trial court's refusal to grant a new trial or to allow amendment of the pleadings. The sole issue for our review is whether the trial court erred in placing upon the donor of a "gift" inter vivos, under the circumstances presented, the burden of proving undue influence.

Though there is considerable case law to the contrary in other jurisdictions, Washington has steadfastly adhered to the rule, first enunciated 60 years ago, that where the donee occupied a fiduciary relationship to the donor at the time the gift was made, the donee bears the burden to prove lack of...