Williams v. Sutphen

NOURSE, J.

Plaintiff sued the defendant individually and as administrator of the estate of his deceased wife for an accounting of the assets of the estate. Plaintiff had a judgment, from which the defendant has appealed on a bill of exceptions.

The issues raised by the complaint were that plaintiff, a sister of deceased, was the residuary legatee under the will; that defendant, as administrator with the will annexed, made an inventory of said estate which was not complete, but that the defendant concealed and claimed as his own, adversely to the interest of the estate, certain personal property, consisting of stocks and bonds of the value of $15,000. It was also alleged that the deceased had in her possession, as her separate property, at the time of her death, certain jewelry and certain stocks and bonds of the value of $7,100, of which she had made a gift to the plaintiff, but that the defendant claimed the jewelry as a part of the estate. The answer denied that any of the property mentioned in the complaint belonged to the estate and denied specially that the deceased had made any gift to the

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plaintiff of either the jewelry or the stocks and bonds mentioned.

The trial court found that the stocks and bonds enumerrated in finding number five were the separate property of the deceased and a part of the estate; that the jewelry referred to in the complaint was given to the plaintiff by the deceased and was not property of the estate; and that the deceased attempted to malee a gift to the plaintiff of the stocks and bonds, valued at $7,100; but it was not found whether this gift was completed or whether these stocks and bonds were separate or community property.

On this appeal the appellant attacks finding number five-as not supported by the evidence and, as a separate ground for reversal, assigns the failure of the trial court to find whether the stocks and bonds referred to in finding seven, which the deceased attempted to give to the respondent, were the separate property of the deceased, and whether they became the property of the respondent.

In support of finding number five respondent points out that the evidence discloses that the appellant and his wife commenced in 1913 to invest in stocks, bonds, and mortgages, keeping a book of account of all these investments, some of which were entered in his name and some in the name of the deceased; that these investments were made while the parties were residents of Portland, Oregon, and were continued over a period of eight years and until 1921 when the parties returned to California; that under the laws of the state of Oregon all property acquired there in the name of the wife was deemed to be her separate property; and that at all times prior to the death of deceased this property was recognized and treated by both husband and wife as the separate property of the latter. The evidence, as is usual in cases of this kind, was meager, the husband being the one person who had the most intimate knowledge of the facts and circumstances, and he, being adverse to the interests of the respondent, disclosed no more than he deemed necessary.