HOLCOMB, J., dissents. The plaintiff is the widow of Jesse Donald Johnston, who was the son of defendants J.T. Johnston and Pearl Johnston. October 18, 1932, the defendant Mutual Life Insurance Company of New York issued a policy on the life of Jesse Johnston, in which plaintiff was named beneficiary. The policy reserved the right in the insured to change the name of *Page 574 the beneficiary. Exercising this right, the insured, on May 5, 1933, made his father the beneficiary. This change was made without the consent or knowledge of plaintiff.
Jesse Johnston died October 7, 1933. The defendant J.T. Johnston made proof of death. Before payment was made by the insurance company, plaintiff brought this action, laying claim to the proceeds of the policy. The defendant insurance company paid into court the money due under the policy and was dismissed from the action. The cause was tried to the court, which made findings favorable to defendants, and entered judgment dismissing the action. Plaintiff appeals.
The premiums on the policy were payable quarterly. The first premium was paid with community funds, when the policy was issued. It is appellant's contention that the community composed of herself and husband then acquired a vested interest in the policy; that, the policy being community property, her husband could not give it away.
It is well established (1) that property assumes a separate or community character as of the date of its acquisition (Norman v.Levanhagen, 142 Wn. 372, 253 P. 113); (2) that a husband alone cannot make a gift of community property (Parker v.Parker, 121 Wn. 24, 207 P. 1062). Predicating her argument upon these propositions, appellant assumes the fact to be established that her husband did make a gift of the policy to his father. The court found otherwise. It found that the change of beneficiary was made for an adequate consideration. Under the evidence, we fail to see how the court could have found to the contrary.
The essential facts supporting the finding are these: Jesse Johnston was stricken with influenza in November, 1932. Mastoid complications developed, which necessitated an operation in the latter part of December. *Page 575 When he recovered sufficiently to leave the hospital, he was taken to the home of his parents, where he remained until his death. During much of the time, he was a very sick man. At no time did he recover sufficiently to resume his occupation. In the latter part of January, 1933, appellant, at the invitation of respondents, also came to live with them. She remained until April 26th.
[1] Appellant contends, however, that the support so given and the services so rendered by respondents were gratuitous. It is the general rule that support and services rendered between the members of a family are gratuitous, in the absence of a contract, express or implied, to pay. The theory underlying the presumption is that support given by one is offset by services rendered by the other. The presumption that the support given and the services rendered are gratuitous may be overcome by clear and convincing evidence showing an intention that they were to be paid for in pecuniary recompense. 1 Schouler, Marriage, Divorce, Separation and Domestic Relations (6th ed.), § 806; Morrissey v.Faucett, 28 Wn. 52, 68 P. 352; Thompson v. Jackson,85 Wn. 330, 148 P. 5; Lyons v. McElroy, 104 Wn. 481,177 P. 312; Allerton v. Allerton, 133 Wn. 260, 233 P. 632.
[2] Applying the rule here, it is clear that pecuniary recompense was contemplated by the respondents on the one hand and their son on the other. For, due to his physical condition, the son could make no recompense by way of services. The support and services rendered were wholly on the side of the parents.
On this aspect of the case, the quotation from 28 R.C.L. 681, § 15, used in Allerton v. Allerton, supra, is peculiarly pertinent here: "Frequently when there is no reciprocity of benefits a contract may be implied." But we find more than that in this case. The *Page 576 son acknowledged the pecuniary obligation and manifested his intention of discharging it by transferring to his father the only resource at his disposal. Under the evidence, the court was fully warranted in holding that there was an adequate consideration for the change in the named beneficiary under the policy.
Judgment affirmed.
MILLARD, C.J., MITCHELL, MAIN, TOLMAN, BEALS, and STEINERT, JJ., concur.
GERAGHTY, J., concurs in the result.