"[R]eciprocal wills, although executed simultaneously, do not in themselves constitute evidence of a contract to execute [mutual] wills and keep them in effect." Dahlgren v. Blomeen , 49 Wash.2d 47, 50, 298 P.2d 479 (1956).
See Latham, 87 Wn.2d at 553-54. Among these exceptions were: (1) tracing source of funds, West v. Knowles, 50 Wn.2d 311, 313, 311 P.2d 689 (1957); (2) implied partnership/joint venture, In re Estate of Thornton, 81 Wn.2d 72, 78-81, 499 P.2d 864 (1972); (3) resulting trusts, Walberg v. Mattson, 38 Wn.2d 808, 812-14, 232 P.2d 827 (1951); (4) constructive trusts, Humphries v. Riveland, 67 Wn.2d 376, 389-90, 407 P.2d 967 (1965); (5) tenancy in common, Shull v. Shepherd, 63 Wn.2d 503, 506, 387 P.2d 767 (1963); and (6) contract theory, Dahlgren v. Blomeen, 49 Wn.2d 47, 50-52, 298 P.2d 479 (1956). In 1984, this court discarded this presumption.
To avoid inequitable results under "the Creasman presumption", Washington courts developed a number of exceptions. In re Estate of Thornton, 81 Wn.2d 72, 79-81, 499 P.2d 864 (1972) (implied partnership); Hennessey, 87 Wn.2d 550 (implied partnership); Humphries v. Riveland, 67 Wn.2d 376, 407 P.2d 967 (1965) (constructive trust); West v. Knowles, 50 Wn.2d 311, 311 P.2d 689 (1957) (tracing source of funds); Dahlgren v. Blomeen, 49 Wn.2d 47, 298 P.2d 479 (1956) (contract theory); Omer v. Omer, 11 Wn. App. 386, 523 P.2d 957, review denied, 84 Wn.2d 1009 (1974) (constructive trust); see generally Washington State Bar Ass'n, Community Property Deskbook §§ 2.70-2.76 (1989). [5] In 1984, this court overruled Creasman.
Lindsey, 101 Wn.2d at 303-04, citing Washington State Bar Ass'n, Community Property Deskbook § 2.7, at 2-8 (1977). The most common means of avoidance include: (1) tracing source of funds ( West v. Knowles, 50 Wn.2d 311, 313, 311 P.2d 689 (1957)); (2) implied partnership or joint venture ( In re Estate of Thornton, 81 Wn.2d 72, 79, 499 P.2d 864 (1972); Latham v. Hennessey, 87 Wn.2d 550, 554 P.2d 1057 (1976)); (3) resulting/constructive trust ( Omer v. Omer, 11 Wn. App. 386, 523 P.2d 957 (1974)); (4) cotenancy ( Shull v. Sheperd, 63 Wn.2d 503, 387 P.2d 767 (1963)); (5) contract theory ( Dahlgren v. Blomeen, 49 Wn.2d 47, 298 P.2d 479 (1956)); Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976) (summarized from Community Property Deskbook §§ 2.8-2.12). Lindsey, 101 Wn.2d at 303-04. Appellant Peffley-Warner contends that the Lindsey ruling gave the parties a right to an equitable division of the community property.
Community Property Deskbook § 2.7, at 2-8. The most common means of avoidance include: (1) tracing source of funds ( West v. Knowles, supra); (2) implied partnership/joint venture ( In re Estate of Thornton, supra; Latham v. Hennessey, 87 Wn.2d 550, 554 P.2d 1057 (1976)); (3) resulting/constructive trust ( Omer v.Omer, 11 Wn. App. 386, 523 P.2d 957 (1974)); (4) cotenancy ( Shull v. Shepherd, 63 Wn.2d 503, 387 P.2d 767 (1963)); (5) contract theory ( Dahlgren v. Blomeen, 49 Wn.2d 47, 298 P.2d 479 (1956); Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976)) (summarized from Community Property Deskbook §§ 2.8-2.12). [1] We find the constricting dictates of the Creasman presumption to have made the law unpredictable and at times onerous.
Even if the witness was estimating defendant's speed at a rate higher than the plaintiff estimated it, there would be no reason to say it would not corroborate plaintiff's theory that defendant was driving at an excessive rate of speed. For cases which hold that a party is not conclusively bound by his own testimony as against other evidence which the fact-finding body might fairly believe, see the following cases and authority: Gibson v. Mendocino County, 16 Cal.2d 80, 105 P.2d 105, 108; Holland v. Morgan Peacock Properties Company, 168 Cal.App.2d 206, 335 P.2d 769, 773; Valdin v. Holteen, 199 Or. 134, 260 P.2d 504, 509; Dahlgren v. Blomeen, 49 Wn.2d 47, 298 P.2d 479, 481-482; Green v. Floe, 28 Wn.2d 620, 183 P.2d 771, 772; Alamo v. Del Rosario, 69 App.D.C. 47, 98 F.2d 328, 331; Annotation 169 A.L.R. 798, 809; and 9 Wigmore, Evidence, § 2594a, pp. 597-601 (3d Ed.). In the annotation cited above, it is stated the rule that a party is entitled to the benefit of the testimony of other witnesses in contradiction to his own is especially applicable to circumstances of an accident or similar event.
Our holding in Creasman v. Boyle, supra, has been misconstrued. Property rights are not determined on the basis of social relationships, moral or immoral. Poole v. Schrichte (1951), 39 Wn.2d 558, 236 P.2d 1044. For reasons heretofore set forth in Poole v. Schrichte, pp. 562-3, and Walberg v. Mattson (1951), 38 Wn.2d 808, 232 P.2d 827 (See, also, Dahlgren v. Blomeen (1956) ante p. 47, 298 P.2d 479), our holding in the Creasman case has no application here. In Walberg v. Mattson, supra, p. 812, it is pointed out that in the Creasman case,
This court could hardly claim to be a court of justice if it did not recognize that an injured party, whose testimony consists of a narration of events as they appeared to him at or immediately prior to the happening of an accident causing serious injury and unconsciousness, is not conclusively bound by his own testimony as against other evidence which the fact-finding body might fairly believe. Holdings to this effect and to the effect that the jury is not bound by evidence which is introduced by a party and which negatives his claim have been made in the following Pacific-state cases: Gibson v. Mendocino County, 16 Cal.2d 80, 105 P.2d 105, 108; Holland v. Morgan Peacock Properties Company, 168 Cal.App.2d 206, 335 P.2d 769, 773; Valdin v. Holteen, 199 Or. 134, 260 P.2d 504, 509; Dahlgren v. Blomeen, 49 Wn.2d 47, 298 P.2d 479, 481-482; Gioldi v. Sartorio, 119 Cal.App.2d 198, 259 P.2d 62, 65; Green v. Floe, 28 Wn.2d 620, 183 P.2d 771, 772. See also Alamo v. Del Rosario, 69 App.D.C. 47, 98 F.2d 328, 331; Annotation 169 A.L.R. 798, 809; and 9 Wigmore, Evidence, § 2594a, pp. 597-601 (3d Ed.)
Our holding in Creasman v. Boyle, supra, has been misconstrued. Property rights are not determined on the basis of social relationships, moral or immoral. Poole v. Schrichte (1951), 39 Wn.2d 558, 236 P.2d 1044. For reasons heretofore set forth in Poole v. Schrichte, pp. 562-3, and Walberg v. Mattson (1951), 38 Wn.2d 808, 232 P.2d 827 (See, also, Dahlgren v. Blomeen (1956), ante p. 47, 298 P.2d 479), our holding in the Creasman case has no application here. In Walberg v. Mattson, supra, p. 812, it is pointed out that in the Creasman case,
Latham v. Hennessey, 87 Wn.2d 550, 554 P.2d 1057 (1976); In re Estate of Thornton, 81 Wn.2d 72, 499 P.2d 864 (1972); Humphries v. Riveland, 67 Wn.2d 376, 407 P.2d 967 (1965); Shull v. Shepherd, 63 Wn.2d 503, 506, 387 P.2d 767 (1963); West v. Knowles, 50 Wn.2d 311 (1957); Dahlgren v. Blomeen, 49 Wn.2d 47, 298 P.2d 479 (1956); Omer v. Omer, 11 Wn.App. 386, 523 P.2d 957 (1974); Washington State Bar Association, Community Property Deskbook §§ 2.70-2.76 (1989). Presumably, these alternative theories of acquiring an adjudicated ownership interest in property by a boyfriend or girlfriend remain available, but Whitney Jacques does not rely on any of them.