1 Reported in 190 P.2d 575. MILLARD and SIMPSON, JJ., dissent. *Page 845 This is an appeal from a judgment awarding certain United States savings bonds (purchased by the deceased, John Morello) to the plaintiff, and decreeing that neither of the defendants owned any interest therein.
The facts were stipulated between the parties at the time of trial. John and Lulu Morello were married January 17, 1918, in Montana. Later they moved to Washington, living in Cle Elum until they separated in 1928. On July 14, 1928, after due proceedings regularly had, Lulu Morello obtained an interlocutory decree of divorce from her husband, John. No final decree of divorce was ever entered, but subsequent to the interlocutory decree the parties never resumed marital relations.
From that time on, the parties lived wholly separate and apart. Neither thereafter contributed to the support of the other, or otherwise accounted to the other for any income received, and neither asserted any claims to any subsequent property accumulated by the other during his lifetime, and each managed his individual business and affairs free from any interference or direction by the other during this time.
On September 12, 1929, after in good faith obtaining a marriage license, Lulu Morello and Olaf Robertson went through a marriage ceremony and thereafter lived together as husband and wife.
In the month of June, 1944, John Morello purchased, with earnings acquired subsequent to the entry of the interlocutory decree, the four United States savings bonds involved in this action. The bonds were inscribed and made payable in the alternative to "Mr. John Morello or Miss Katy Togliatti." *Page 846
John Morello died intestate in Cle Elum July 26, 1946. In August, 1946, Lulu Morello and Olaf Robertson secured a marriage license and went through a second ceremony of marriage. On September 3, 1946, Lulu Morello Robertson was appointed, and qualified as, the administratrix of the estate of John Morello, deceased.
Respondent claims title to the bonds by virtue of the fact that she is named co-owner, under the provisions of § 315.32 (c) of the United States treasury department regulations governing United States savings bonds, department circular No. 530, reading as follows:
"If either coowner dies without having presented and surrendered the bond for payment to a Federal Reserve Bank or the Treasury Department, the surviving coowner will be recognized as the sole and absolute owner of the bond, and payment will be made only to him." 9 Fed. Register 4787, part 4.
And also by virtue of § 1, chapter 14, p. 19, Laws of 1943 (Rem. Supp. 1943, § 11548-60 [P.P.C. § 200j-1]).
Appellant, Lulu Morello Robertson, claims title by virtue of the fact that the marriage between herself and John Morello had never been legally dissolved; that she is his widow; that the bonds are community property; and that the husband had no right to give community property away.
Rem. Rev. Stat. (Sup.), § 988 [P.P.C. § 23-15], provides that if, after hearing, the court determines that either party to a divorce action, or both, is entitled to a divorce, an interlocutory order must be entered accordingly. Rem. Rev. Stat., § 988-1 [P.P.C. § 23-17], provides for the confirmation of such an order and the entry of a final decree of divorce, to be made upon the motion of either party, which may be done at any time after six months shall have expired after the entry of the interlocutory order, and upon the conclusion of an appeal, if taken therefrom.
[1] We have held that, where one of the parties to a divorce action dies before the entry of the final decree, the action abates, and the interlocutory order, in its entirety, becomes a nullity. State ex rel. Atkins v. Superior Court, *Page 847 1 Wash. 2d 677, 97 P.2d 139; Dougherty v. Dougherty, 24 Wash. 2d 811, 167 P.2d 467.
Upon the death of John Morello, therefore, no final decree having been entered, the interlocutory order entered in the case of Lulu Morello v. John Morello on July 14, 1928, became a nullity, and Lulu Morello became his widow and his heir, entitled to any property of which he died seized. She became entitled, as his surviving spouse, to file a petition in his estate for the statutory allowance in lieu of homestead. In re Chisholm'sEstate, 159 Wash. 674, 294 P. 973, 76 A.L.R. 279.
If these savings bonds were his separate property, he did not die seized of them. They passed to Katy Togliatti, the surviving co-owner, upon his death. On the other hand, if the bonds were purchased with community funds, he had no right to make a gift of them by naming Katy Togliatti co-owner, and the bonds would be inherited by his widow.
Rem. Rev. Stat., § 6890 [P.P.C. § 434-25], provides:
"Property and pecuniary rights owned by the husband before marriage, and that acquired by him afterward by gift, bequest, devise or descent, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of his wife, and he may manage, lease, sell, convey, encumber, or devise, by will, such property without the wife joining in such management, alienation, or encumbrance, as fully and to the same effect as though he were unmarried."
Rem. Rev. Stat., § 6891, provides:
"The property and pecuniary rights of every married woman at the time of her marriage, or afterward acquired by gift, devise, or inheritance, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of her husband, and she may manage, lease, sell, convey, encumber or devise by will such property, to the same extent and in the same manner that her husband can, property belonging to him."
Rem. Rev. Stat., § 6892 [P.P.C. § 434-27], provides:
"Property, not acquired or owned as prescribed in the next two preceding sections, acquired after marriage by *Page 848 either husband or wife, or both, is community property. The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof."
We have been unable to find any case in which this precise question has been presented. In In re Witte's Estate, 21 Wash. 2d 112, 150 P.2d 595, we laid down the following rules:
"Property and pecuniary rights owned by either husband or wife before marriage or acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, are his or her separate property; and all other property acquired after marriage by either spouse is community property. Rem. Rev. Stat., §§ 6890, 6891, 6892 [P.C. §§ 1432, 1424, 1433]. . . .
"The status of property, whether real or personal, is to be determined as of the date of its acquisition. . . .
"The status of property, when once fixed, remains so in character until changed by deed, by agreement of the parties, by operation of law, or by the working of some form of estoppel."
In Wampler v. Beinert, 125 Wash. 494, 216 P. 855, an action for damages because of personal injuries incurred by the wife, we held that the husband, having abandoned the wife, did not have authority, as the manager of the community, to enter into a settlement and a release of the claim for damages. We said:
"While a husband, under § 6892, Rem. Comp. Stat. [P.C. § 1433], has the management and control of the community property and is a necessary party plaintiff in an action to recover damages resulting from injury to the wife, he ceases to be a necessary party and has no authority to release or discharge such claim, if in fact the wife is living separate and apart from her husband, caused by the desertion of the husband. By repudiating his duties the husband releases his authority, and after the husband abandons his wife and they are living separate and apart, his authority over a claim for injuries to the wife is not reestablished by the husband merely returning to the community wherein the wife resides, and his lack of authority will continue until he does in good faith resume the duties and obligations of a husband toward the wife." *Page 849
In Yates v. Dohring, 24 Wash. 2d 877, 168 P.2d 404, the husband and wife had separated, and the wife sued for divorce. An order of default had been entered, but there had been no entry of an interlocutory decree. We held that the husband was not liable for the charges for the wife's board and room, incurred subsequent to the separation, saying:
"Where a spouse, by words or conduct, evidences an intention not to maintain the marriage state in its family aspects and disavows all marital obligations, the other is freed from the liabilities incident to the marital status, which are based upon the reciprocal aspects of the relationship. The old and familiar notice given to the public by a spouse that the other had left his bed and board without cause and that he will not be responsible for debts contracted hereafter by the other, is not an unfair statement of the rights of a spouse in that situation and the reason for it. One who stands ready and willing to discharge one's marital obligations in full, will not have one's rights extinguished by the acts of the other. But one who voluntarily absents oneself from the household with the intention of disavowing one's marital obligations, forfeits the right to family support provided for by the statute."
In Lanigan v. Miles, 102 Wash. 82, 172 P. 894, we said:
"Reference to the opinions of this court will show that we have built up two lines of decisions covering the right of one or the other of married persons to assert a separate interest in property. In the one line, the court has had to do with the claims of creditors or the interests of third persons having some tangible equity in or lien upon the property sought to be recovered or levied upon. In the other line, the court has had to deal with husband and wife as free contracting agents, unhampered and unhindered by the claims of creditors or by any one having direct interest in, or lien upon, the property. In all of the first line of cases, the court has had to deal with circumstances which, if unexplained by testimony at once clear and convincing, would amount to badges of fraud. In the second line of cases, it appears that a husband and wife may freely contract, or give one to the other, and thus provide for the holding of property then or thereafter to be acquired as a separate estate. *Page 850
"To make ourselves clear, if the property herein involved had stood in the name of Thomas W. Miles, and he had been the active agent in the care, management, and disposition of it during his lifetime, his widow, or any one claiming under her, would be put to a greater burden than a mere preponderance of the testimony, if it were claimed that the property was her separate property, for the husband's conduct with reference to the property would have been consistent with the usual practice, and not inconsistent with the ordinary methods of management of community property, funds, or business. But where a course of of dealing between spouses, and this running over a period of from thirty to fifty years, is consistent — is not only consistent with, but confirmatory of the claim of the one who asserts a separate estate — we see no reason for saying that the presumption that all property acquired after marriage is community property is not overcome, at least, to the extent of putting a burden on the one who asserts the contrary. . . .
"`It is true that, if we look in this evidence for some such specific agreement at some specific time, we may not be able to find it in clear and formal language; but taking her testimony as to the general understanding between herself and husband, in contradiction of which there is not a syllable of evidence, and the fact of the management of her earnings and the property acquired thereby without the slightest control of or interference by her husband, we cannot escape the conclusion that it was at all times since their marriage well understood by both of them that her earnings were to be her separate property.' Dobbins v.Dexter Horton Co., 62 Wash. 423, 113 P. 1088."
In In re Martin's Estate, 127 Wash. 44, 219 P. 838, Dr. Martin and his wife were married in 1906 and lived together as husband and wife at Cashmere until they separated in 1920. By that time they had accumulated property of considerable value, both real and personal. At the time of the separation, the parties divided their property between them. Mutual deeds were executed and exchanged to evidence the division of the real property, but no formal instrument seems to have been executed as to the personal property. Each of the parties, however, took possession of the part severally awarded, and held it as separate property *Page 851 up to the time of the death of Dr. Martin, without let or hindrance of the other.
After the separation, Dr. Martin moved to the western part of the state, Mrs. Martin remaining in Cashmere. After moving to the coast, Dr. Martin accumulated personal property, which was appraised at $5,828.68.
In August, 1921, Dr. Martin commenced an action for divorce. The interlocutory order was entered October 18, 1921. He died March 23, 1922, which was prior to the time the divorce could have been made final under the statute. He left a nonintervention will, which was admitted to probate. Mrs. Martin applied and was appointed administratrix of the community estate. She claimed all of the property of which Dr. Martin died possessed as community property. This contention was resisted by the executrix. At the trial, the widow conceded the real property was the separate property of Dr. Martin. The trial court found that the personal property was, also, separate property. On appeal, we held:
"We think the separation agreement was a final disposition of their property rights. This court has repeatedly held it competent for married persons, where the rights of creditors do not intervene, to divide their personal property and enter into an agreement that thereafter the earnings of each shall be the separate property of each. Yake v. Pugh, 13 Wash. 78,42 P. 528, 52 Am. St. 17; Dobbins v. Dexter Horton Co., 62 Wash. 423,113 P. 1088; Union Securities Co. v. Smith, 93 Wash. 115,160 P. 304, Ann. Cas. 1918E 710. . . .
"The facts shown in the record justify the conclusion that such was the agreement here. The case is even stronger in favor of the conclusion than is any of the cited cases. In them the agreement was made while the parties were living together as husband and wife, and with the understanding that they would continue to so live together, while here the agreement was made in contemplation of a separation, and with the intent that each should go his or her own way, without further interference by the other."
[2, 3] It must be remembered that in this case we are not concerned with the status of the parties. No final decree having been entered, they remained husband and wife. *Page 852 We are concerned only with the status of the property. The whole theory of community property is that it is obtained by the efforts of the husband or wife, or both, for the benefit of the community.
Here, from the entry of the interlocutory decree, the parties lived separate and apart. Neither, thereafter, contributed to the support of the other, or otherwise accounted to the other for any income received by either of them, and neither asserted any claims to any subsequent property accumulated by the other during his lifetime, and each managed his individual business and affairs free from any interference or direction by the other during this time. One year after the entry of the interlocutory order, the wife, in good faith, went through a marriage ceremony with Mr. Robertson, and they lived, thereafter, together as husband and wife.
True, there was no formal agreement between these parties making any subsequently acquired property the separate property of each. But for eighteen years each went his separate way. By their conduct during these years, they recognized the separate ownership of all property thereafter accumulated by either of them.
Each case must be disposed of on its own peculiar facts. As to this case, we have no hesitancy in saying that the bonds were purchased with his separate funds by Mr. Morello in 1944, and therefore were his separate property.
The judgment is affirmed.
STEINERT, ROBINSON, and JEFFERS, JJ., concur.