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son by a former wife, Everett Davie. widow was appointed administratrix, and the appellant, John T. Darie, was appointed guardian of the minor. The administratrix filed her inventory, but failed to include therein certain real estate which it is claimed by appellant the decedent owned at the time of his death. Upon appellant's petition, citation was issued requiring respondent to show cause why said real estate should not be included in the inventory. To this an answer was made, whereupon a hearing was had, which resulted in findings and conclusions and a decree in favor of the widow. From said decree this appeal is prosecuted.

The evidence shows that, after a protracted illness and some four or five days before his death, said William Davie and his wife executed a contract for the sale of said real estate to one Tipton, and at the same time executed a deed of conveyance of said real estate to said Tipton, which deed was to be held in escrow until the payments called for by the contract should be made. Negotiations leading up to the sale had been pending several months. The contract and deed appear to have been prepared by one Boyd, who was a partner in the real estate business with Tipton, and who was present when the papers were signed and acknowledged. In regard to the transaction, Mr. Boyd, among other things, testified: “After the contract and deed were executed, I asked Mr. Davie what was to be done with the papers, to which Mr. Davie replied: 'It is hers. I will give them to her. She will come down and place them in escrow in her name, so that she can handle it.' In the course of the conversation he stated: 'If anything happens to me, it will leave the widow in pretty good shape. It will leave her a home.'” pears that Mrs. Davie placed the papers in escrow in accordance with said suggestions of Mr. Davie. The latter had signed the papers while in bed and quite sick; and lived but four or five days thereafter. Another witness, one Johnson, a notary public, who was present when Mr. Davie signed these papers, and who took the acknowledgment of Davie and wife, testified, among other things, as follows: "He made the remark that if anything should happen to him-he said: “My widow' or 'my wife will have a home.' " Mrs. Davie was upon the witness stand and testified to the papers being signed, and was asked: “At that time what was done with the papers? Answer: They were handed to me at that time, that day. It was on the afternoon of the 28th of March, and the next day I took them up and had them put in escrow, as I was told to do.” She was asked as to what was said at the time, but, objection being made, she was not permitted to state.

It is urged by the appellant that the evidence is not sufficient to establish a gift; that there is no sufficient evidence of a delivery; tha; the attempt to make a gift was

the result of undue influence; and that it was an attempt to make a gift of real estate, which could not be done orally. We think, under all the circumstances of this case, that the evidence show's an intention of the decedent to make a gift causa mortis. No creuitor is complaining. No one appears to be interested except this minor child. Other property was left by the decedent. There are no circumstances shown in connection with the case to cast thereupon any suspicion of undue influence, fraud, or misrepresentation. It would seem to be but a natural thing for a man in the expectation of near approaching death to make a gift of this kind to his wife. In Phinney v. State, 36. Wash. 236, 241, 78 Pac. 928, (S L. R. A. 119. this court said: "It is now conceded by all modern authority that every species of personal property capable of delivery, either constructive or actual, may be the subject of gift mortis causa.” In the same case, it was said, touching the question of delivery: “But, in the very nature of business transactions of this kind, this delivery must frequently be constructive. The nature and circumstances surrounding this case necessitated a constructive delivery. The subject of the gift was not available.

So that, in justice and common sense, it seems to us that the delivery was complete, and that the will of the deceased ought not to be thyvarted by any technical construction or definition of delivery." This language is applicable here. Decedent was giving the proceeds from the sale of the land to be paid upon, and according to the terms of, the contract. There was no way of making a delivery except by placing in her possession the written contract and escrow deed, which was done. We think this was sufficieut.

With the contention that this was real estate, and could not be legally made the subject of an oral gift, we cannot agree. Decedent and his wife had made a contract to sell this property. They had executed a deed to be held in escrow, to be delivered when the purchaser should complete his payments as called for in said contract. Having done this, the interest in the real estate became such as is ordinarily treated as personal property in matters of administration. Ile was virtually giving her the proceeds coming from the sale. In the case of Griggs Land Co. v. Smith (Wash.) 89 Pac. 177, this court said: "But in the case at bar the owner of the land had made a contract to convey, and he could leave to his heirs only the interest then owned which was virtually but the right to the proceeds; the holder of the contract being entitled to have the lani conveyed to him upon paying the purchase price. In such cases the courts have treatel the property for purposes of administration, as personal rather than real. A recognition of this doctrine may be found in Hyde v. Heller, 10 Wash. 581, 39) Pac. 249." See, also, Gibson v. Slater, +2 Wash. 3+7, 8+ Pac.

It ap

648; Noble v. Whitten, 38 Wash. 262, 80 Pac. 451; Guinan's Appeal, 70 Conn. 342, 39 Atl. 482; 26 Am. & Eng. Enc. of Law (20 Ed.) 721-720; 11 Am. & Eng. Enc. of Law (20 Ed.) 1063, 1068; 7 Am. & Eng. Enc. of Law (2d Ed.) p. 471; 9 Cyc. 826; 7 Current Law, p. 1881.

We think the decree of the trial court should be affirmed; and it is so ordered.


(47 Wash, 238)


A city ordinance making the doing of an act an offense is not superseded by a general state law fixing and defining a punishment for the same act.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, &1311-1314.] 2. GAMING - ORDINANCES - CONSTRUCTIONDESCRIPTION OF GAME-SUFFICIENCY.

A city ordinance, general in its terms, and prohibiting playing at any game of chance played with dice for money or representatives of money, was broad enough to include a dice gambling game called "Twenty-six,” for the purpose of winning money, cigars, and articles representative of money by chance, although the game was not enume:ated in the ordinance.

Appeal from Superior Court, King County; A. W. Frater, Judge.

Ray MacDonald was convicted by the police judge of the city of Seattle of violating an ordinance against gaming, and appealed to the superior court. From a judgment of the latter court quashing the conviction, the city appeals. Reversed.

Ellis De Bruler, for appellant. Morris, Southard & Shipley, for respondent.

hundred dollars, or by imprisonment not exceeding six months, or by both.” On March 7, 1903, the Legislature made it felony to maintain a gambling resort; the act consisting of one section, which reads as follows: "Section 1. Any person who shall conduct, carry on, open, or cause to be opened, either as owner, proprietor, employé..or assistant, or in any manner whatever, whether for hire or not, any game of faro, monte, roulette, rouge et noir, lans-quenette, rondo, vingt-un (or twenty-one), poker, draw-poker, brag. bluff, thaw, tan, or any banking or other game played with cards, dice or any other device, or any slot machine, or other gambling device, whether the same be played or operated for money, checks, credits, or any other representative or thing of value, in any house, room, shop, or other building whatsoever, boat, booth, garden or other place, where persons resort for the purpose of playing, dealing or operating any such game, machine or device, shall be guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary for the period of not less than one nor more than three years.” Laws 1903, p. 63, c. 51. On October 17, 1906, one W. I. Peer made complaint before the police judge of the city of Seattle, charging the respondent with violating the ordinance above quoted by playing at a dice gambling game called “Twenty-six,” for the purpose of winning money, cigars, and articles representative of money by chance. The respondent pleaded not guilty to the charge before the police judge, and was tried and convicted and sentenced to pay a fine. The respondent appealed from the judgment of conviction to the superior court. In that court le filed a demurrer to the complaint on the ground, among others, that the facts charged did not constitute a crime. The superior court sustained the demurrer, and entered a judgment quashing the conviction and dismissing the proceeding. The city appeals.

The learned judge of the superior court sustained the demurrer on the ground that the city ordinance on which the complaint was predicated had been superseded by the statute above quoted. Ile rested his decision on the principle that a municipality, in the absence of express authority conferred upon it by its charter, is without power to enact an ordinance making punishable an act which is made punishable as a criminal offense by the general laws of the state; and held, as a necessary corollary to that rule, that an ordinance making the doing of an act an offense, enacted by virtue of the municipality's general power, is superseded by a general law of the state Legislature fixing and defining a punishment for the same act. There are many cases, representing perhaps the weiglit of authority, which support the rule follower by the trial judge. This court. however, has adopted the contrary rule. In Seattle V. Chin Let, 19 Wash. 38, 52 Pac. 324, we held that the city of Seattle by virtue of certain

FULLERTON, J. On November 17, 1899, the city of Seattle passed an ordinance relating to misdemeanors, section 10 of which reads as follows: "Whoever deals, plays at, wagers anything of value on, or in any manner takes part in, or whoever carries ou or causes to be opened, or who conducts, sets up, keeps or exhibits any game of faro, monte, roulette, lans-quenette, rouge et noir, rondo, poker, draw-poker, keno or E. O. or roulette table or shuffle board, or fantan, or any gaming table or game whatever, for the purpose of gambling or any game of chance for the purpose of winning or securing money by chance, played with cards, dice or any device whatever, kind or nature, whether or not of the kind, character or nature herein mentioned, for money, checks, credit or any representative of value whatever, or whoever shall have in his possession to be used for the purpose of gambling or winning money by chance any gaming device whatever, shall be punished by a fine of not more than five

provisions contained in its then charter, Action by the state of Washington, on the which have been continued in its present one, relation of John D. Atkinson, Atty. Gen.. authorized it to enact ordinances for the against the Co-Operative Home Builders, a punishment of offenses already made punish corporation, to enjoin the defendant from able by state laws. This rule is not without transacting a saving, loan, and investment well-considered cases in its support, and, as business on the building society plan within we think it more in consonance with the prin the state. From a judgment according to the ciples of good government than is the rule prayer of the complaint, defendant appeals. followed by the trial judge, we do not feel Affirmed. that it ought to be overruled or modified.

Harold Preston and F. R. Burch, for apWe hold, therefore, that the ordinance was

pellants. John D. Atkinson, J. B. Alexauder, not superseded by the general statute quoted.

and F. C. Kapp, for respondent. It is further contended that the judgment must be sustained on the ground that the game the defendant played at is not one RUDKIN, J. This action was instituted by prohibited by the ordinance. It is true the the state, on the relation of the Attorney game known as "Twenty-six" is not enumer General, to enjoin the defendant from transated in the ordinance, but the ordinance is acting a saving, loan, and investment business general in its terms, and prohibits a person on the building society plan within the state. from playing at any game of chance played

and for other purposes. . Judgment was with dice for money, or representatives of

given below according to the prayer of the money, and is broad enough to include the complaint, and the defendant has appealed game played at by the respondent.

therefrom. The judgment appealed from is reversed, A motion was interposed to strike certain and the cause remanded, with instructions to interrogatories propounded to the appellant, reinstate the case and overrule the demurrer. and the ruling of the court denying this mo

tion is the first error assigned. The appellant ITADLEY, C. J., and RUDKIN, CROW, contends that the action was instituted to ROOT, DUNBAR, and MOUNT, JJ., concur. enforce a penalty or forfeiture, and that in

such cases a party will not be compelled to

make discovery. The principal question in (47 Wash. 235)

the case was the nature of the business transSTATE ex rel. ATKINSON, Atty. Gen., v. acted by the appellant in this state, and, in

CO-OPERATIVE HOME BUILDERS. asmuch as that sufficiently appeared from (Supreme Court of Washington. Oct. 7, 1907.) other competent evidence, the striking of the 1. APPEAL-REVIEW-QUESTIONS CONSIDERED

interrogatories and the answers thereto would -MATTERS Not AFFECTING RESULT.

not change the result. We therefore deem it The denial of a motion to strike certain in

unnecessary to discuss the nature of the proterrogatories and the answers thereto will not be considered on appeal where the granting of the

ceedings or the ruling of the court on the momotion could not have affected the result.

tion to strike. It is admitted that the appel(Ed. Note.-For cases in point, see Cent. Dig. lant is a foreign corporation organized and vol. 3, Appeal and Error, $ 4033.]

existing under the general laws of the state 2. BUILDING AND LOAN ASSOCIATIONS-STAT of California, and that it has not complied UTES-LIABILITY.

with the provisions of the act of March 28, A foreign corporation issuing contracts which provide for small monthly payments by

1890, entitled, "An act relating to building, contract holders, which produce the home ma loan and saving associations doing a general turity fund from which loans are made to these business." Law's 1890, p. 56, c. 4. If the ap dontributors for the purpose of building homes,

pellant is a corporation, society, organization, inaking improvements and discharging incumbrances on real estate, is a building, loan, and or association, doing a saving, loan, or insaving association, within the meaning of Laws vestment business on the building society 1890, p. 62, c. 4, § 22, which declares that the

plan, whether neutral or otherwise, and name "building and loan association" shall include all corporations doing a saving and loan or

whether issuing certificates of stock which investment business on the building society plan,

mature at a fixed time or not, as defined by whether neutral or otherwise, and whether is section 22 of the building and loan associasuing certificates of stock which mature at a

tion act, the judgment should be affirmed, but time fixed in advance or not, though the persons with whom it contracts and to whom loans are

otherwise it must be reversed. The generalmade are not members of the corporation, the ly accepted definition of a building and loan statute imposing no penalty for noncompliance

association is the following: "Sec. 2. Definitherewith, and Laws 1903, p. 219, c. 116, 85, permitting building and loan associations to loan

tion of Building Association. The building to nonmembers.

association as now existing is a private cor3. SAME.

poration, designed for the accumulation by A foreign corporation which is a building. the members of their money by periodical loan, and saving association, within the meaning of Law's 1890, p. 56, c. 4, requiring such asso

payments into its treasury, to be invested ciations to perform "certain acts, must comply from time to time in loans to the members with the provisions of the act or cease opera upon real estate for home purposes, the bortions in the state.

rowing members paying interest and a preAppeal from Superior Court, King County; mium as a preference in securing loans over A. W. Frater, Judge.

other members, and continuing their fixed

periodical installments in addition, all of expenses of said association. (3) This conwhich payments, together with the non tract, if it is the lowest number not then borrower's payments, including fines for fail matured, shall be deemed to have matured ure to pay such fixed installments, forfeitures when, from the continued monthly payments for such continued failure of such payments, into the home maturity fund on this and like fees for transferring stock, membership fees contracts in this series, there shall on the first required upon the entrance of the member day of any calendar month have accumulated into the society, and such other revenues, in the home maturity fund of said association go into the common fund until such time as the sum of seventy-five dollars ($707.00), the that the installment, payments, and profits association having discharged all obligations aggregate the face value of all the shares in then due on outstanding matured contracts. the association, when the assets, after ray As soon as this contract shall have matured, ment of expenses and losses are prorated then the holder thereof shall be entitled to an among all members, which in legal effect, installment sum of seventy-five dollars ($75.00) cancels the borrower's debt, and gives the per month to be applied toward the payment nonborrower the amount of his stock." of a home or the discharge of a mortgage Thompson on Building Associations, p. 2. for such contract owner, until the sum of · The nature of the business transacted by the one thousand dollars ($1,000.00) shall in this appellant in this state appears from the fol manner be paid, which process shall continue lowing provisions of the contract entered into in like manner with each maturing contract. with its patrons or subscribers: “The Cali When the sum of one thousand dollars fornia, Oregon & Washington Home Builders' ($1.000.00) shall have been paid for the beneAssociation, a corporation of the state of fit of the party of the second part, then this California, party of the first part, and

contract on the part of the party of the first party of second part, agree, the one with the part shall be performed. When this contract other, and with all others executing similar matures as aforesaid, and until the party of mutual co-operative contracts, as follows: the second part shall select and arrange for The object of this agreement is the acquisi the purchase of real estate, or to build a house tion of a home or farm or the discharge of or to discharge a mortgage on a lot, owned by a mortgage by the holder of this contract, he him, the said sum of seventy-five dollars making small monthly payments and co-op ($75.00) per month shall be kept and accumuerating with others, executing similar con lated by the party of the first part, and paid tracts and to the same purpose. In considera out only on a home or mortgage for the said tion of the mutual benefits to be derived from party of the second part. (4) Upon the mathe faithful performance of the mutual cor turity of this contract, and annually there. enants herein mentioned, by the parties here after, the party of the second part shall pay to, and the monthly installments to be paid to the party of the first part, the sum of six by one to the other, it is agreed by them as dollars ($6.00) over and above all other payfollows: (1) The party of the first part shall ments herein provided for, which shall go number, date, and register each contract in into what shall be hereafter known as the this series in numerical order as applications 'Equalization Fund.' (5) The said party of for same are received at its home office, and the second part shall obtain a complete aball benefits accruing under this contract shall stract of title to the property to be purchased, be in accordance with said numerical order or upon which a building is to be erected, or of registration, provided, however, the party a mortgage is to be discharged, to be examof the first part reserves the right to con ined by the party of the first part, at the exsolidate one or more series with this one by pense of the party of the second part, and if interpolating half numbers or maturing the the property, title, and contract of purchase same numbers, or set of numbers. in each be approved by the party of the first part and series, alternately, thereby augmenting the the same be ordered purchased by the party home maturity fund as well as the numbers. of the second part, or the mortgage dis(2) The party of the second part shall at charged, the contract of purchase or conveythe signing of his contract have paid thereon ance shall be made by the party of the first as a registration fee, to the party of the first part with the owner of the property, and the part, the sum of five dollars ($7.00), and shall party of the first part shall pay on said conalso pay thereon a further sum of two dollars tract or purchase or conveyance or mortgage and fifty (ents ($2.50) each month, on or be for the benefit of said party of the second fore the 20th day thereof, two dollars ($2.00) part the sum of seventy-five dollars ($75.00) of which sum shall be placed to the credit per month, as aforesaid, and the party of the of the second party, in what shall be here second part shall execute a deed of trust or after known as the 'Home Maturity Fund, mortgage or a contract giving the party of the and said sum of two dollars ($2.00) shall be first part, or someone they may designate, a applied on the installment purchases of lien on said land in such way and kind as the homnes or to the discharge of mortgages ac attorney of the party of the first part may cording to the co-operative plan aforesaid: determine to be necessary; and, upon maturand fifty cents ($0.50) shall be placed to what ity of this contract, the party of the second is herein termed the 'Expense Fund,' and part shall pay to the party of the first part shall go to the party of the first part for the i on or before the 20th day of each month,

an additional sum of two dollars and fifty savings of its miembers and loaning to them cents ($2.50 a month over and above the two such accumulations, in the manner of a codollars and fifty cents ($2.50) heretofore operative bank, unless incorporated within provided for, or the sum of five dollars the commonwealth for that purpose, was not ($5.00), fifty cents ($0.50) of which sum shall violated by a corporation whose modus operbe paid to said party of the first part for the andi was much the same as that of the apexpense of conducting its business, and the pellant. Two reasons were assigned for the sum of four dollars and fifty cents ($1.50) decision: First, because the statute was peshall be placed to the credit of the party of nal and should be strictly construed; and, the second part in the home maturity fund second, because "the purchasers of these conaforesaid, and shall go to pay off obligations tracts are not members of the association, of the party of the first part, for homes pur and their savings are not sayings of members, chased or mortgages discharged, by the pro but of holders of individual contracts from visions of this and similar contracts. (6) the association. They have no voice in the When the monthly payments of four dollars management of the affairs of the associaand fifty cents ($1.50) into the home maturity tion. No money of members of the associalfund shall aggregate the sum of one thousand tion is lent to any of its members. The saydollars ($1,000.00), less the amount the second ings of these contractors are not accumulated party has to his credit in the home maturity and lent to them in the manner of a co-operafund before maturity, and all other conditions tive bank, but the course of dealing is very of this contract shall have been complied with, different from that of any bank." The court then the first party shall convey to said sec added significantly, however: “It may well ond party, or contract holder, all its interest be said that all the reasons for the enactin said property. (T) This contract may be ment of this statute apply with great force assigned, upon payment of two dollars ($2.00) to an association transacting business like to said first party, the consent of said first that of these defendants." We do not conparty having first been obtained in writing." sider this case controlling for two reasons:

From the foregoing provisions, it is quite First. The Massachusetts statute imposed a apparent that the general purpose of the ap penalty of not more than $1,000 for its viopellant and the ordinary building and loan lation, and the rule of strict construction olsassociation is identical, viz., the creation of tained, while our statute imposes no penalty a fund by small periodic payments from on the corporation itself, and this court has which loans may be made to those who are uniformly given a liberal construction, in otherwise unable to obtain them because of favor of the public, to statutes relating to their inability to give security. Building the formation of domestic corporations, or associations exist in one form or another in to the right of foreign corporations to transnearly all the states. In some they are or act business within the state. State ex rel. ganized under the general incorporation laws, Osborne, Tremper & Co. v. Nichols, 38 Wash. in others there are a few general statutory 309. SO Pac. 462: State ex rel. Gorman v. provisions in reference to them, while in still Nichols, 40 Wash. 137, 82 Pac. 741; State ex others the statutes contain elaborate pro rel. Amalgamated Republic Mines Company visions relating to their formation and the V. Nichols (decided September 6, 1907), 91 conduct of their business. For these reasons, Pac. 632. Second. Our statute permits buildwhile the general plan and purpose of all ing and loan associations to loan to nonsuch associations is the same, their methods members. Laws 1903, p. 219, § 5. Another of transacting business are by no means uni line of cases arising under the usury law's form. Thus some loan to members only, is relied on. Our statute provides that "no others to nonmembers, some loan for a spe premium taken for loans, nor amounts chargcific purpose, others for any purpose, some ed for expenses, as allowed in this act nor loan to the highest bidder at auction, others

any payments on account of installments of at a fixed premium, in some the stock ma stock made by a borrowing member shall be tures at a fixed time in advance, others considered as a repayment on his loan, or contra, some are on the terminating plan, shall render such association amenable to the while others are permanent, and diverse laws relating to usury.” Laws 1903, p. 219, other features we need not mention. If the § 4. And other states have similar enactgeneral plan and purpose of the appellant is ments. It has frequently been held under similar to that of the ordinary building and such statutes that associations transacting a loan association, why does it not fall within

business similar to that of appellant are not the definition of our statute? One reason as

exempt from usury law's. The reason for signed is that the persons with whom these the rule is thus stated in Skinner v. Southcontracts are entered into and to whom loans ern Home Builders' & Loan Association, 10 are made are not members of the corporation Fla. 547, 3.) South. 67: "By the use of the or association. In support of this view At term 'building society plan, the Legislature torney General v. Pitcher, 183 Mass. 313, 67 must have had reference to some detinite N. E. 606, is cited. It was there held that plan, and not to whatever scheme under a a statute forbidding any person, association, like name might be devised in the various or corporation, except certain licensed ones, states or foreign countries, and hence it is not to transact the business of accumulating the improper to assume the legislators, in the use

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