Clark v. Baker

Gose, J.

The plaintiff filed a bill in equity for the purpose of establishing a community interest in the estate of her deceased husband, George N. Clark. Both the plaintiff and the defendants have appealed from the final decree, and they will be referred to as plaintiff and defendants.

George N. Clark died testate on the 17th day of April, 1910. He left a nonintervention will. His estate was adjudged solvent and the will is being executed by the defendants as his executors. The only mention of the plaintiff in the will appears in the following language:

“Whereas my wife, Nancy E. Clark, and I prior to our marriage entered into a marriage contract affecting the property which we severally owned at that time, and whereas her property so affected by said contract and the natural increase thereof is ample to support her in comfort during her lifetime, it is my will and desire and I hereby direct that my executors or the survivor of them shall execute to her a quit claim deed of all property that she owned at the time of her said marriage and all that has been a natural outgrowth of the same (in case there is any not heretofore quit-claimed by me to her), so that her title thereto will not be clouded on account of our said marriage and that my entire estate pass as hereinbefore provided.”

The testator left all of his estate to the children and grandchildren the issue of himself and a former wife.

The plaintiff and George N. Clark were married in the state of Oregon on the 21st day of May, 1890. Clark then resided at Oakesdale, in this state. At the time of the marriage, they mutually intended to make this state the family domicile. In obedience to that intention, they went to Oakesdale a few days after their marriage, and resided there until sometime in March, 1891, when they moved upon a farm belonging to the husband, near St. John, in Whitman county, where they resided until November, 1899, when they moved to Spokane, where they resided until the decease of the husband. The plaintiff has since continued to live upon the homestead in Spokane, which had been the family home for eleven years before her husband’s death.

Both the plaintiff and Clark had been married before, and each had children by the former marriage. The plaintiff, at the time of her marriage to Clark, owned real estate in the state of Oregon. Clark at that time owned about 390 acres of land in that state. He also owned 480 acres of land in Whitman county, this state, and had a contract with the Northern Pacific Railway Company for the purchase of 320 acres of land in Whitman county. This contract was made in 1887. He had made at least one payment on this contract at the time of his marriage. He acquired the legal title to the railroad land in 1897. At the time of the marriage, he owned personal property in Whitman county, this state, consisting of about 250 head of mixed cattle, 26.work horses, 9 colts, and about $800 in money.

The plaintiff and the deceased lived upon the Whitman county land from March, 1891, until November, 1899, and farmed the land from 1891 to 1896 inclusive. Between the harvest of 1896 and the death of the deceased, the land was rented upon a cash rental for two years, and for either one-third or one-half the crop the remaining time. The farming operations of 1891 and 1892 were confined to less than 100 acres a year, and little or no profit was made. In 1893, about 500 acres were cropped and harvested, but owing to the unprecedented rains of that year, while the crop was large, it was so damaged that it did not pay harvesting expenses. In 1894, 1895, and 1896, the crop was light and the prices were so low that no profit was made. The record shows conclusively that no profit resulted from the farming operations of the plaintiff and her husband during the period that they actually conducted the farm. The testimony accords with the experience and observation of those who were in touch with the farming conditions in Eastern Washington at that time.

Immediately prior to the marriage, the plaintiff and Clark executed the following antenuptial contract:

“Agreement made this 21st day of Mky, 1890, at Lane county, state of Oregon, by and between George N. Clark, party of the first part, and Nancy E. Lemon, party of the second part, Witnesseth, that whereas the said parties of the first and second part contemplate marriage, and whereas the party of the first part is the owner of real property situated in the states of Oregon and Washington and has a family of sons and daughters by a former marriage, and whereas the party of the second part is the owner of real property situated in the state of Oregon and has a family of children by a former marriage, Now therefore it is mutually covenanted by and between the parties of the first and second part that, in consideration of the marriage of the one to the other, That the party of the first part doth hereby and by these presents remise and relinquish now and forever all right, title, interest or claim in or to any and all of the real property and personal property which may belong to the party of the second part at the time of the marriage of the parties hereto, and if the said party of the second part shall die prior to the party of the first part, all of her lands and personal property owned by her in her own right shall belong to and be the property of the children of the party of the second part, and the party of the first part shall not claim or have an estate by courtesy in any part of the lands or personal property of the party of the second part, and the party of the first part doth hereby agree to sign deed or deeds at any time during said marriage for the sale of said property shall the party of the second part so desire. And the party of the second.part in consideration of said marriage hereafter to be solemnized between the parties hereto doth hereby and by these presents renounce and relinquish now and forever all right, title, interest or claim in or to any and all of the real property and personal property which may belong to the party of the first part at the time of the marriage of the parties hereto, and if the party of the first part shall die prior to the party of the second part all of the. land and personal property owned by him in his own right shall all belong to and be the property of the children of the party of the first part, and the party of the second part shall not claim or have any estate of dower in any part of the lands or personal property of the party of the first part. And the party of the second part doth hereby agree to sign deed or deeds at any time during said marriage for the sale of said property shall the party of the first part so desire.

“It is further mutually covenanted by and between the parties hereto that all property acquired after marriage by 'the mutual endeavor and labor of both parties, over and above what is required for their support, shall be the joint property of both parties in equal parts. [Italics ours.]

“Witness our hands and seals this 21st day of May, 1890.

“George N. Clark (Seal)

“N. E. Lemon (Seal).”

It will be observed that the essential features of the contract are: (1) That Clark disclaims all interest in the property, both real and personal, then owned by the plaintiff, including “courtesy.” (2) That the plaintiff makes a like disclaimer as to all property, both real and personal, then owned by Clark, including “dower.” (8) That they agreed that “all property acquired after marriage by the mutual endeavor and labor of both parties, over and above what is required for their support, shall be joint property of both parties in equal parts.” It will also be observed that the contract is silent as to the rents, issues, and profits of the separate property of the contracting parties.

“Property and pecuniary rights owned by the husband before marriage, and that acquired by him afterwards by gift, bequest, devise or descent, with the rents, issues, and profits thereof,” is his separate property. Rem. & Bal. Code, § 5915 (P. C. 95 § 25).

“Property and pecuniary rights” owned by the wife before her marriage and that later acquired by her in the manner set forth in § 5915 is her separate property. Rem. & Bal. Code, § 5916 (P. C. 95 § 9).

Property not acquired or owned as prescribed in the two preceding sections, acquired after the marriage by either husband or wife or both, is community property. Rem. & Bal. Code, §5917 (P. C. 95 § 27).

The court admitted testimony of the declarations of the deceased in his lifetime respecting the purpose of the contract, on the theory that the contract is ambiguous, but later reached the conclusion that it is not ambiguous. The court concluded that the railroad land was presumably paid for after marriage, in part with community funds and in part with the separate funds of the deceased; that these funds had been so commingled that they could not be separated; that the railroad land was community property and that the rents, issues, and profits arising from that land was commingled with those arising from the separate property of the deceased; and hence that all property thereafter acquired was community property.

The court was right in holding that the contract is unambiguous. It is plain, specific and direct in its terms and clearly speaks the minds of the contracting parties.- The court, however, was wrong in his conclusion that the railroad land was community property. There were no community funds, hence there could be no commingling. In 1892, Clark had the sod broken on the railroad land, and paid for the breaking, with horses which he owned before marriage. The same year he sold cattle to the amount of $1,900, and in 1894 he sold cattle to the amount of over $1,100. These cattle were his separate property. The court, in passing on the case, said that the parties in entering into the contract did not intend “to build a wall around each ones own property.” We think this is precisely what they did intend to do, and the contract, as we read it, expresses that intention in unequivocal terms. The fact that they undertook to free their respective properties from “courtesy” and “dower” rights, which had and have no existence in this state, strengthens that view. They made no direct provision for the rents, issues and profits of their respective properties, and these funds follow the properties from which they spring, and our statutes define their status. Where it is desired to provide, by an antenuptial contract, for property acquired in a state foreign to the place of the contract, subsequent to the making of the contract, the contract must speak to the very point — that is, it must use words making the contract specifically applicable to property so acquired. Long v. Hess, 154 Ill. 482, 40 N. E. 335, 45 Am. St. 143, 27 L. R. A. 791; Kneeland v. Ensley, 1 Meigs (19 Tenn.) 620, 33 Am. Dec. 168; McKay, Community Property, §§ 570, 571.

Aside from the railroad land, all of the property in controversy, except a tract purchased with the proceeds of the sale of Clark’s land in Oregon, was acquired by purchase subsequent to the time the actual farming operations of the parties ceased. The first purchase was made in October, 1899, and the last in January, 1910. It is needless to prolong the discussion upon the main issue. The evidence shows conclusively that no profit was derived from the farming operations of the plaintiff and her husband, and that the railroad land and all property purchased by Clark subsequent to the marriage was paid for out of the rents, issues, and profits of his separate property. It follows that there was no community property at the time the community was dissolved by the death of the husband. Guye v. Guye, 63 Wash. 340, 115 Pac. 731, 37 L. R. A. (N. S.) 186; Dobbins v. Dexter Horton & Co., 62 Wash. 423, 113 Pac. 1088; Worthington v. Crapser, 63 Wash. 380, 115 Pac. 849; United States Fidelity & Guaranty Co. v. Lee, 58 Wash. 16, 107 Pac. 870.

On the 10th day of June, 1910, after the death of her husband, the plaintiff duly executed a declaration of homestead and filed it for record upon the same day. It embraces lot 2 in block 10, in Wadsworth & McDonald’s addition to Spokane, which was the separate property of her husband. The plaintiff and her husband had resided upon this property from the fall of 1899 until his decease, and she has since resided thereon. The husband did not make a declaration of homestead during his lifetime. There was no issue of the marriage between the plaintiff and the deceased, and the record does not show that there is any one living on the premises with her and under her care and maintenance. The court refused to give the plaintiff a homestead upon this property, presumably upon the theory that her rights, if any, in this respect should be taken care of in the probate court. Counsel for the executors say in their brief that they do not concede her right to a homestead. We entertain no doubt upon this question. She is entitled to a homestead in the separate property of her husband for “a limited period.” Laws 1895, p. 109, § 2, and p. 114, § 33; Rem. & Bal. Code, §§ 1465, 1466 (P. C. 409 §§ 325, 327) ; Fairfax v. Walters, 66 Wash. 583, 120 Pac. 81; In re Lloyd’s Estate, 34 Wash. 84, 74 Pac. 1061; Austin v. Clifford, 24 Wash. 172, 64 Pac. 155. The right to a homestead accrues to “a widow” as such, when there are no minor children. Rem. & Bal. Code, § 1465 (P. C. 409 § 325).

After a nonintervention will has been proven, the estate adjudged solvent and the executors named in the will have accepted the trust, the estate is removed from the jurisdiction of the probate court, except as otherwise provided in the statute in reference to nonintervention wills; and courts of equity are, thereafter, the proper forum for the determination of such issues as are here tendered. In re Guye’s Estate, 63 Wash. 167, 114 Pac. 1041.

The plaintiff filed her cost bill more than ten days after the entry of the judgment. The cost bill was stricken upon the motion of the defendants. This is assigned as error. There was no error in the ruling of the court. Rem. & Bal. Code, § 482 (P. C. 81 § 1291).

The court correctly found that lot 1, block 4, of Union Park addition to Spokane, was the separate property of the plaintiff. It was purchased with the funds arising from the sale of land in the state of Oregon which she owned at the time of her marriage. There is no controversy over this property.

The case will be remanded with directions to enter a decree in favor of the defendants upon all the issues except the homestead and lot 1, block 4, Union Park addition to Spokane. The plaintiff is seventy-two years of age. She has a life expectancy of about seven and one-half years. The court is directed to assign to her lot 2, block 10, in Wadsworth & McDonald’s addition to Spokane, as a homestead for and during her natural life, the legal title to vest in the devisees of Clark subject to this right.

Neither party will recover costs in this court.

Chadwick, Ellis, Morris, Main, Mount, and Fullerton, JJ., concur.