The question presented by this appeal is, as stated in the opinion of the majority, whether "the money claimed by appellant to have been advanced to the respondent was a loan or a gift." The majority concludes that it was a loan, and rests its conclusion upon the evidence as summarized in the prevailing opinion and upon what the majority conceives to be a holding to that effect by the trial court in its oral opinion expressed at the end of the trial on the merits. *Page 654
I do not believe that either the facts or the trial court's opinion, when analyzed, support the majority view.
Mrs. Hamilton's will was executed November 25, 1929. Respondent was therein bequeathed the sum of $3,500. Other specific bequests aggregated $3,550. Appellant was made the residuary devisee. Appellant, as executor, made an inventory of the estate on February 26, 1930, and filed the same on March 11, 1930. The estate, consisting of both separate and community real property and community personal property, was itemized in detail and was subsequently appraised at $40,460. Included in the inventory of the personal property were three promissory notes, each in the sum of $2,000 and owing by persons other than those involved in this appeal. I mention these notes because they constituted an indebtedness to the estate. However, no mention or suggestion whatever was made in the inventory of any alleged indebtedness of respondent to the estate.
The executor filed his inheritance tax report on January 16, 1931. That report was upon the basis of a bequest of $3,500 to respondent, a series of bequests to other individuals and a residuary devise to appellant, but it made no mention of, nor did it include, any claim of indebtedness from respondent as an asset of the estate.
So far as the record now before us discloses, nothing further was done in the estate until November, 1935. It may be stated, however, that in 1933 Mr. Hamilton petitioned the court for an order striking from the inventory four parcels of real estate upon the ground that they were his separate property but had been erroneously inventoried by him as being part of his wife's separate estate. That petition provoked a contest by a number of legatees, including respondent, and *Page 655 culminated in an appeal by Mr. Hamilton to this court. In reHamilton's Estate, 182 Wn. 81, 45 P.2d 36. Upon that appeal, Mr. Hamilton's petition was denied. The opinion in that case narrates the factual background involved in this controversy.
In the meantime, a situation had arisen which, in my opinion, presents this case in its true light. In her will, Mrs. Hamilton had directed her executor to pay eight of the bequests therein mentioned, including that of the respondent, within three years after her death. These bequests were not paid as directed by her. As disclosed by the record, this was due to the fact that, for some reason or other, the executor did not have the available cash. However, there are many letters in evidence, written by Mr. Hamilton to respondent between 1930 and 1933, in which he recognized the bequest to respondent in its full amount and promised repeatedly that it would be paid just as soon as money due the estate could be collected. There is not a word, nor even a hint, in any of this correspondence concerning an alleged previous loan to respondent nor that any amount would be deducted from her legacy.
On November 25, 1935, respondent and two other legatees named in the will filed their petition in the probate court to have the executor removed because of his failure to pay the bequests and for other alleged mismanagement of the estate. The petitioners were the same parties as those who had previously contested Mr. Hamilton's attempt to have his original inventory amended. Citation issued upon the petition and directed the executor to show cause why the petition should not be granted. Thereafter, on December 24, 1935, the executor filed his final account and petition for distribution, wherein, for the first time, it was asserted and alleged that respondent was indebted to the estate in the sum of one thousand dollars, with interest *Page 656 at six per cent per annum from 1925, the year in which the money was alleged to have been loaned to respondent by Mrs. Hamilton and her husband, the present executor. In his testimony, given at the trial below, Mr. Hamilton stated that the loan was made in 1921 or 1922.
Now, assuming that the Hamiltons advanced one thousand dollars to the respondent sometime between 1921 and 1925, it is very strange that, if it was intended as a loan, Mrs. Hamilton made no mention of it in her will, but, on the contrary, left an unconditional bequest to respondent of a fixed, definite and larger amount. It is still more surprising that, for more than five years after his wife's death, Mr. Hamilton made no such contention as is now advanced. It is remarkable that he thought of it only after he had had considerable difficulty and litigation with respondent. The fact that he not only kept silent in that respect for so long a time, but also repeatedly declared that the full amount of the bequest would be paid to respondent just as soon as collections permitted, convinces me that, even though one thousand dollars was advanced to respondent in 1922 or 1925, it was intended as a gift and not as a loan. It is shown by the record that respondent had lived with Mr. and Mrs. Hamilton for many years, had always called her "Mother," and that there was a close personal relationship between respondent and the Hamiltons.
Now let us turn to the trial court's oral decision. The majority seems to think that the court expressed a conviction that the money advanced to respondent was a loan. I do not so interpret the court's remarks.
It is apparent that the trial judge felt some embarrassment in determining a matter involving the credibility of persons with whom he was intimately acquainted. It is true that, after expressing his confidence *Page 657 in the witnesses, he did say that he was satisfied that Mr. Hamilton "let Mrs. Kenton have the money." But he did not say that it was a loan. In fact, when appellant's counsel challenged the court's attention to that very issue, the court said:
"I do not know whether it was a loan or what it was, but it was fifteen or 20 years ago, and I say that if Mr. Hamilton never asserted until fifteen years thereafter that it was a loan, at least as far as anybody knows — I say that a man cannot do that and then come in after that length of time and after he has been pressed for the payment of a bequest."
This does not suggest to me, as it seems to suggest to the majority, a mere defense of laches or limitations asserted by respondent. In the light of all the evidence as above indicated, it means simply that, having taken a position, over a period of fifteen years, consistent with the recognition of the advancement as a gift, the executor could not, when pressed for payment, and because of resentment growing out of subsequent litigation, reverse his mental conception and impress upon the transaction,nunc pro tunc, the character of a loan.
For these reasons, I think that the judgment should be affirmed.
TOLMAN and ROBINSON, JJ., concur with STEINERT, C.J. *Page 658