Warburton v. White

Per Curiam.

The question to he determined in this case is whether the husband succeeds to all the property which was purchased by himself and wife with community funds in this state (then a territory) in 1878, or whether one-half of said property descends to the heirs of the wife. It is contended by the appellant that the property descends to the husband by right of survivorship under the laws of 1873 and 1875 (Laws 1873, p. 450; Laws 1875, p. 53), and a very painstaking and exhaustive brief has been filed in support of this contention. As an original proposition the brief and argument of appellant would be exceedingly interesting, but the uniform holding of this court for the last fifteen years has been to the contrary. This question was first decided adversely to appellant’s contention in Holyoke v. Jackson, 3 Wash. T. 235 ( 3 Pac. 841 ), in the year 1882. The same question has been expressly decided by this court in Hill v. Young, 7 Wash. 33 ( 34 Pac. 144 ), and Mabie v. Whittaker, 10 Wash. 656 ( 39 Pac. 172 ), and incidentally decided in probably forty other cases, so that the rule announced by these cases has become the established rule of law and of property in this state. Eights have been established and have grown up under these decisions which it would be wrong to now disturb, even if the court should conclude that the rule as originally announced was faulty. In consideration, therefore, of this long settled and well established doctrine we do not feel called upon to enter into a discussion of the questions involved.

The judgment will be affirmed.

ON PETITION EOR RE-HEARING.

Per Curiam.

This cause is before us on a petition for a rehearing, appellant asking a further consideration of the question before urged by him in his brief and on the oral *513 argument, that the right of survivorship granted under the law of 1875, and the rights urged under the law of 1873 were vested, proprietary and contractual rights, and that, therefore, later acts of the legislature could not deprive appellant of them on the ground that it would impair the obligation of the contract by which the property was obtained, and thus be in conflict wth the constitution of the United States. If any of these questions are presented by the record it is sufficient to say that the court was and is of the opinion that section 2 of the act, Laws 1875„ p. 53, was never in force to the extent of conferring a vested right of survivorship in favor of either spouse as to community property. As such it would have been void as not being embraced in the title of the act, and at most it could only be construed as a statute regulating the descent of property, and it was within the power of the legislature to change it, which was thereafter done. "We were of the opinion, also, that, even though it conferred a right to property by survivorship, it could be taken away, and was, by subsequent legislation, and that under the Laws of 1873 no vested rights were conferred upon the husband as claimed, but that the same were within the power of the legislature to change thereafter, as was done. Eights, such as are claimed by this appellant, never were recognized or enforced here either during territorial days or since, under either of said acts; but the uniform holdings have been to the contrary, as stated in the former opinion.

The petition is denied.