Wittman's Estate, In re

• Decision Date: 28 September 1961
• Docket Number: No. 35744,35744
• Citation: 365 P.2d 17,58 Wn.2d 841
• Court: Washington Supreme Court
• Parties: In the Matter of the Estate of John Frank WITTMAN, Deceased. Frank E. SEELEY, as Administrator of the Estate of John Frank Wittman, Deceased; and Sadie Sharp Wittman, Respondents, v. Inez GODFREY, George A. Wittman, Joseph L. Wittman, and Alfred Wittman, Appellants.

Page 841

58 Wn.2d 841

365 P.2d 17

In the Matter of the Estate of John Frank WITTMAN, Deceased.

Frank E. SEELEY, as Administrator of the Estate of John

Frank Wittman, Deceased; and Sadie Sharp Wittman, Respondents, v. Inez GODFREY, George A. Wittman, Joseph L. Wittman, and Alfred Wittman, Appellants.

No. 35744.

Supreme Court of Washington, Department 2.

Sept. 28, 1961.

R. Stuart Thomason, Seattle, for appellants.

Kumm, Maxwell, Petersen & Lee, Seattle, for respondent.

MALLERY, Judge.

John Frank Wittman, the decedent, and Sadie Sharp Wittman were married in 1925 and were husband and wife at the time of John's death on January 9, 1959. No children were born of the marriage.

On July 15, 1949, they entered into a community property agreement, which provided, inter alia:

'All property, whether real or personal, now or hereafter standing in the name of either party hereto, or in the names of both, or in which either or both of us now or hereafter shall have any interest, is hereby constituted and shall be treated for all purposes as the community property of both of us, and upon the death of either one of us the title thereto shall vest in the survivor to the exclusion of everyone else. * * *'

This agreement was properly executed in compliance with RCW 26.16.120 and recorded with the auditor of King county, Washington, their place of residence on the date of its execution.

On May 20, 1957, Sadie made a will reciting it was her desire that her husband obtain no portion of her half of the community property since it was her understanding that he was disposing of his half of the community property in a manner he saw fit. No basis for the understanding was recited, nor does the record show any existing at that time. Her will was a unilateral act, uncommunicated to her husband.

In the following October, John made a will in which he bequeathed specific legacies to George A. Wittman, Joseph L. Wittman, Rose Wittman, Alfred Wittman, and Mrs. Inez Godfrey. He devised and bequeathed the residue of his estate to his wife.

John died and, on April 24, 1959, his will was admitted to probate. The community property agreement was brought to the attention of the administrator on or about April 2, 1960. He, thereupon, caused his report, account and petition to be filed seeking distribution of all the property to Sadie in compliance with the agreement. A citation was issued to all of the legatees named in John's will to appear and show cause why the petition should not be granted.

When the matter was heard in the superior court for King county, all of the legatees, except Rose Wittman, appeared and filed an answer. They contended the community property agreement had been abandoned by the parties, John and Sadie. The only evidence introduced by the legatees to show such an abandonment was the abovementioned will of Sadie S. Wittman.

The court found, inter alia, that '* * * neither said decedent nor his wife had any knowledge of the execution of the said Will by the other * * *,' and that the community property agreement had '* * * never been altered, amended, revoked, renounced or abandoned by any agreement of the parties thereto.' The court concluded that, on the death of John, all of the property of John and Sadie, with the exception of a certain trustee account, became the sole and separate property of Sadie, pursuant to the terms of the agreement. The trustee account became the property of Rose Wittman by stipulation of Sadie.

All of the legatees, except Rose Wittman, appeal from the court's decree. Sadie Sharp Wittman and Frank E. Seeley are the respondents.

The community property agreement statute, RCW 26.16.120, enables husbands and wives to enter into community property agreements concerning the status and disposition of their property to take effect upon the death of either. In re Brown's Estate, 29 Wash.2d 20, 185 P.2d 125, held that such enforcible contracts are not wills and are not goverened by the laws relating to wills. They are completely executed when one of the parties to the recorded contract dies. Title to the community property, thereupon, vests as the sole and separate property of the survivor. Unless such a recorded contract is rescinded by the parties it constitutes a conveyance by the decedent to a surviving spouse. The property covered by it cannot be devised or bequeathed by will by either spouse while it remains in effect.

Unless the community property agreement in the instant case was rescinded by the parties prior to John's death, all of the property in issue became the sole and separate...