Womach v. Sandygren

• Decision Date: 20 April 1917
• Docket Number: 13849.
• Citation: 164 P. 600,96 Wash. 12
• Parties: WOMACH et al. v. SANDYGREN et al. (HOLLAND BANK et al., Interveners.
• Court: Washington Supreme Court

164 P. 600

96 Wash. 12

WOMACH et al. v. SANDYGREN et al. (HOLLAND BANK et al., Interveners.

No. 13849.

Supreme Court of Washington

April 20, 1917

Department 2. Appeal from Superior Court, Lincoln County; Joseph Sessions, Judge.

Action by Emma Womach and another against Amanda Sandygren and others; the Holland Bank and others intervening. From the decree, defendants appeal. Affirmed.

See also, 162 P. 354.

Martin & Jesseph, of Davenport, for appellants.

G. E Lovell, of Ritzville, for respondents.

FULLERTON J.

This is an action by the respondents Emma Womach and Anna Salt against Amanda Sandygren, Bert Anderson, and Axel anderson for the partition of real property. From the decree directing a partition, the defendants appeal.

The appellants and the respondents are the children and heirs at law of Thilda Anderson. Mrs. Anderson died intestate on July 23, 1910. Her daughter, the appellant Amanda Sandygren, was appointed administratrix of her estate on September 14, 1910. The estate was closed on March 3, 1915, by a decree which settled the final account of the administratrix and which directed the distribution of the property of the estate among the heirs at law in equal proportions. There were some 21 separate tracts of real property set forth in the final account of the administratrix as belonging to the estate. The legal title to all of these, however, did not stand in the name of Mrs. Anderson at the time of her death. The tracts were acquired at different times, and upon the acquisition of a particular tract it was conveyed to some one or another of her several children, the parties to this action; it appearing that each of the heirs had been possessed at some time of the legal title to one or more of the tracts. In their complaint the respondents set forth three other tracts which they averred belonged to their common ancestor, which were not administered upon as a part of the estate. These tracts the trial court refused to partition, but dismissed the action as to them without prejudice on the ground that it was without jurisdiction in this proceeding to determine the several rights of the parties to them. The other tracts the court directed to be partitioned among the heirs in accordance with the decree of distribution entered in the probate proceeding; that is, a one-fifth interest to each of the heirs, with the modification that Amanda Sandygren take the interests of Bert Anderson, she having purchased his interest in the property of the estate prior to the entry of the decree.

In this court the appellants question the decree as to some 6 of the tracts ordered partitioned. In their answer to the complaint the appellants put in issue the respondents' allegation of ownership of the lands in question, averring in substance that they were each entitled to a one-tenth interest instead of a one-fifth in certain described tracts of the lands, and were without ownership or interest of any kind in certain other described tracts. The evidence of the parties was directed to these issues, and consisted on the part of the respondents of oral evidence tending to show the sources from which the money used in the purchase of the property was derived; of oral declarations of the persons in whose names the legal title stood, inconsistent with absolute ownership certain writings executed by several parties indicating title in the common ancestor; and the fact that the administratrix administered upon the property as property of the estate of the common ancestor and included the property in her final account with the estate as property belonging thereto and subject to distribution to the heirs in equal proportions.

The appellants' first contention is that the oral evidence was inadmissible because tending to establish an express trust, which, under the rule in this state, cannot be established other than by a writing. But this contention mistakes the effect of the evidence. The effect of the evidence was to establish a resulting trust--to establish the fact that the purchase price of the property was paid by the ancestor and the title thereto taken in the name of one of her children--which under all authority may be established by parol. Cases from other jurisdictions need not be cited to support the principle. Our own cases conclude the question. Bowen v. Hughes, 5 Wash. 442, 32 P. 98; Denny v. Holden, 55 Wash. 22, 103 P. 1109; Croup v. De Moss, 78 Wash. 128, 138 P. 671; O'Donnell v. McCool, 89 Wash. 537, 154 P. 1090.

It is next contended that the principal issue here is one of title and that title cannot be determined in an action brought for the partition of real...