Worden v. Worden

• Decision Date: 06 June 1917
• Docket Number: 13825.
• Court: Washington Supreme Court
• Parties: WORDEN et ux. v. WORDEN et al.

165 P. 501

96 Wash. 592

WORDEN et ux. v. WORDEN et al.

No. 13825.

Supreme Court of Washington

June 6, 1917

Department 2. Appeal from Superior Court, Whatcom County; Ed E. Hardin Judge.

Suit by Robert Worden and wife against Earl Worden and others. Decree for defendants, and plaintiffs appeal. Reversed and remanded with instructions.

R. J Nightingale and H. S. Nightingale, both of Bellingham, for appellants.

Hurlbut & Neal, of Bellingham, for respondents.

FULLERTON, J.

On January 12, 1914, Ata Worden executed his last will and testament, devising to his nephew Robert Worden the south half, and to his nephew Elmer Worden the north half, of the northeast quarter of the southwest quarter of section 15 Township 39 north, range 2 west, W. M. The will also provided that his horses should go to Robert Worden, and his notes and mortgages to the borther of the testator Dudley Worden, his cattle should be distributed equally between Dudley Worden, his nephews Robert and Elmer Worden, and the two wives of the nephews, and the residue of his estate of whatever nature should go to his nephews Robert and Elmer and to his brother Dudley equally. The will further provided:

'In making this, my last will and testament, I am not unmindful of my wife Nellie Worden, but do not care to leave her anything, and mention her here simply to show that she was not forgotten by me in making this my last will.'

Ata Worden died July 20, 1914, and his will was duly probated on August 7, 1914. His widow, Nellie Worden, learning that Earl Worden Chafee (formerly Earl Worden) and Lloyd C. Worden, two sons by a former marriage, were living, notified them of their father's death, and on September 14, 1914, a contest of the will was instituted by the widow and these two sons. Upon the hearing of this contest, the will was set aside, on the ground that it failed to name or provide for such sons, and the estate declared intestate. The court in probate refused to pass upon the claim of the widow to a community interest in the estate left by Ata Worden. Robert Worden and Jennie Worden, his wife, thereupon brought an action against the heirs, widow, and executor of Ata Worden to enforce performance of an alleged oral agreement devise to Robert the south half of the 40 acres described in the will. Among other things, the complaint set up an instrument executed by Ata Worden and Nellie Worden on June 19, 1911, declaring that all real estate held by the parties was the separte property of the one in whose name it was standing, and that all property thereafter acquired should be the separate property of the one acquiring it. The answer set up as an affirmative defense that this instrument was obtained by deception and fraud and that there was no consideration to sustain it. This was denied in the reply, which also alleged that no instrument was ever recorded by defendant Nellie Worden claiming any community interest in the property of Ata Worden, that she had received and retained all of her share of the community property under a division agreement with her husband, and that she was estopped to claim a community interest in the property in controversy. On the trial, the court found that the defendant Nellie Worden had a community interest in the property, that Ata Worden made no contract to devise his property, and that plaintiffs had made improvements on the property to the value of $185, and had rendered personal services to the decedent to the value of $645, and that the rental value of their use and occupation of the land was $230, leaving a net amount due plaintiffs of $600. Decree was rendered denying specific performance of the oral agreement, quieting title in Nellie Worden to an undivided one-half, and in Earl Worden Chafee and Lloyd C. Worden, the sons of Ata Worden, to an undivided one-fourth each, awarding plaintiffs judgment for $600, and making the same a lien on the land. The plaintiffs appeal, assigning as error certain findings of fact and conclusions of law of the court, the refusal to make findings and conclusions requested by plaintiffs, and the making of its decree based thereon.

The appellants claim that the following finding made by the court is contrary to the evidence:

'That the property hereinbefore described or mentioned and all the property in which the said Ata Worden was interested at the time of his death was acquired during the time of the marriage relation with the defendant Nellie Worden and by the joint efforts of the said husband and wife, and was the community property of the said Ata Worden and said defendant Nellie Worden.'

The evidence shows that Ata Worden and Nellie Worden were formerly residents of the state Michigan and intermarried there in the year 1884. At the time of marriage, Nellie Worden possessed no property, and Ata Worden was possessed of property which, prior to his removal to the state of Washington in 1889, he sold for $2,500. Of this money, the sum of $400 was applied in paying off a $300 mortgage on a 30-acre farm in Michigan belonging to the parents of his wife, Nellie, and $100 was given them in cash. The title to this land in the year 1907 seems to have been vested in the Wordens, but the evidence does not clearly disclose how it was acquired other than by this payment out of Ata Worden's separate funds. The balance of the proceeds of his sale of his own Michigan property to the extent of from $1,800 to $2,000 was laid out in the purchase and equipment of a 22-acre farm in Skagit county, Wash., on which the parties made their home. Domestic trouble arising between the parties, they agreed to separate and divide their holdings. Accordingly, on June 10, 1907, Nellie Worden quitclaimed to Ata Worden the 30-acre farm in Michigan, waiving all claim for dower and Ata Worden quitclaimed to Nellie Worden the home farm in Skagit county, reciting his intention to convey all community interest in that property. Nellie Worden remained in possession of the Skagit county property as her home, farming it with the help of a hired man and retaining all the revenues therefrom. Ata Worden left for Whatcom county, where he took up his residence, and husband and wife never thereafter lived together. Shortly after the division of property, Ata Worden exchanged the Michigan land for a farm near Lynden, in Whatcom county, which he subsequently sold, and the proceeds of the sale were invested in another farm in Ten Mile township. Since there was nothing of record in Whatcom county showing his right to transfer real estate as sole owner, it was always necessary to get his wife to sign his deeds, so he had her join him in the execution of a deed purporting to convey to one another all community interest that each might have in the real estate held by the other. This agreement is as follows:

'This agreement made and entered into this 19th day of June, 1911, by and between Ata Worden, sometimes known as 'Atta Worden,' the party of the first part, and Nellie Worden, the wife of said Ata Worden, the party of the second part, witnesseth: That whereas, the above-named parties are husband and wife; and whereas, differences have developed making it impossible for said parties to longer live together, and said parties having agreed to live separately:

'Now, therefore, in consideration of the mutual promises made herein, the one to the other, the said parties do agree that hereafter the said parties will live separate and apart from each other, and that any and all property which may be acquired by either of said parties shall be considered as the sole and separate property of the party acquiring the same, and relieved of any and all interest which the other party to this agreement might have by reason of the community existing between the parties hereto.

'Said party of the first part does hereby grant, bargain, sell and convey unto the said party of the second part all of his community right, title and interest in and to all real estate situated in the state of Washington and now standing in the name of the party of the second part, and the said party of the second part does hereby grant, bargain, sell and convey unto the said party of the first part all of her community right, title and interest in and to all real estate situated in the state of Washington the record title to which may be in the name of the said party of the first part.

'It is mutually agreed by and between the said parties, and it is the intention of the parties hereto, that from this day henceforth the said parties shall each have the right to acquire and sell property and to transact business in all manner the same as if the parties hereto were unmarried persons.

'In witness whereof, the said parties have hereunto set their hands and seals this 19th day of June, 1911.

Ata Worden.

'Nellie Worden.

'Witness: H. C. Thompson.'

This was filed for record August 1, 1911, and duly recorded in the records of Whatcom county. Having sold his farm in Ten Mile township, Ata Worden, on January 30, 1912, invested the proceeds in a farm near Ferndale, Whatcom county, described as the northeast quarter of the southwest quarter of section 15, township 39 north, range 2 east, W. M., comprising the land in controversy in this action. Here Ata Worden lived alone and cultivated the land until December, 1913, when, owing to his impaired physical condition, he was compelled to call his nephew Robert Worden to his assistance.

We think this evidence clearly establishes that the lands in controversy were the separate property of Ata Worden. So far as the evidence discloses, the Michigan land was his separate property at the inception of its ownership. But conceding that his wife had an interest therein, she conveyed it to him absolutely by her deed of June 10, 1907, an instrument...