The marriage of Kucks and Catharina constituted performance of their mutual promises to marry, but it did not constitute performance or part performance of Kucks' promise to leave his property to appellants, nor did it take that promise out of the statute. Koontz v. Koontz, 83 Wn. 180, 145 P. 201; Rogers v. Joughin, 152 Wn. 448, 277 P. 988; 37 C.J.S., Frauds, Statute of, ยง 249, page 758; 49 Am.Jur., Statute of Frauds, ยง 520, p. 819. As indicated above, Kucks' wills of May 24, 1945, February 11, 1946, October 22, 1946, and March 2, 1948, were revoked by him.
The Arizona supreme court has said that the Arizona statutes dealing with community property are more nearly analogous to those of Washington than to those of any other state. Cosper v. Valley Bank, 1925, 28 Ariz. 373, 379, 237 P. 175. In the state of Washington property owned by the spouses separately or jointly may be changed into community by a "proper agreement or conveyance" between them (State ex rel. Van Moss v. Sailors, 1934, 180 Wn. 269, 274, 39 P.2d 397, 399; Volz v. Zang, 1920, 113 Wn. 378, 383, 194 P. 409) but such conversion cannot be effected "by the oral agreement of the spouses alone" (Rogers v. Joughin, 1929, 152 Wn. 448, 456, 277 P. 988, 991) the agreement must be established by " positive and direct evidence". State ex rel. Van Moss v. Sailors, supra, 180 Wn. at page 275, 39 P.2d at page 399.
Rem.Rev.Stat. ยงยง 6890, 6891. Separate property continues to be separate property as long as it can clearly be traced and identified and its rents, issues and profits remain separate property. In re Brown's Estate, 124 Wn. 273, 214 P. 10; Rogers v. Joughin, 152 Wn. 448, 277 P. 988; In re Binge's Estate, 5 Wn.2d 446, 105 P.2d 689. "We cannot too often reiterate that `taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed.'" Griffiths v. Commissioner, 308 U.S. 355, 357, 60 S.Ct. 277, 278, 84 L.Ed. 319. Mrs. True exercised command and control over this stock.
We note, in passing, that it is an apparently well-established principle of Washington law that the character of property cannot be changed from that of separate property to community property, or community to separate, by the oral agreement of the spouses alone. In re Janssen's Estate, 56 Wash.2d 150, 351 P.2d 510 (1960); Leroux v. Knoll, 28 Wash.2d 964, 184 P.2d 564, 566 (1967); Rogers v. Joughin, 152 Wash. 448, 277 Pac. 988, 991 (1929); In re Parker's Estate, 115 Wash. 57, 196 Pac. 632, 633 (1921); Dobbins v. Dexter Horton & Co., 62 Wash. 423, 113 Pac. 1088, 1089 (1911); and Churchill v. Stephenson, 14 Wash. 620, 45 Pac. 28, 29 (1896). We consider as irrelevant Armorel's argument that the statute of frauds does not apply to a stipulated property settlement made in open court between parties in a divorce action.
[6] The defendant also contends that the trial court erred in excluding the letters written to it by the decedent. It is argued that these letters were admissible, notwithstanding the hearsay rule, under either the "owner in possession" theory (see Rogers v. Joughin, 152 Wn. 448, 277 P. 988 (1929)) or the more general principle announced in Raborn v. Hayton, 34 Wn.2d 105, 208 P.2d 133 (1949), where we said at 108: Exception is made to the rule excluding hearsay when the state of mind or intention of a person is in question, if the court finds that two circumstances concur: (1) if there is some degree of necessity to use out-of-court, uncrossexamined declarations, and (2) if there is circumstantial probability of the trustworthiness of the out-of-court, uncrossexamined declarations.
We hold that, under such circumstances, it was within the scope of proper cross-examination to offer in evidence the written statement. Rogers v. Joughin, 152 Wn. 448, 277 P. 988 (1929); State v. Gottstein, 111 Wn. 600, 191 P. 766 (1920). Exhibit No. 21 was not prejudicial for the reason that none of the material factual matters contained in the written statement were refuted by appellant.
An agreement to devise real property is in effect a contract to sell real estate and is included within the scope of subsection 4, supra. 37 C.J.S. Frauds, Statute of ยง 100, 597 et seq.; 49 Am.Jur. (Statute of Frauds, Sec. 215) 539; Notten v. Mensing, 3 Cal.2d 469, 45 P.2d 198; Maloney v. Maloney, 258 Ky. 567, 80 S.W.2d 611; In re Wheeler's Estate, 164 Misc. 441, 299 N YS. 945; Kennly v. Kennly, 45 Ohio App. 249, 186 N.E. 853; Tillinghast v. Harrop, 63 R.I. 394, 9 A.2d 28; Rogers v. Joughin, 152 Wn. 448, 277 P. 988; In re Edwall's Estate, 75 Wn. 391, 134 P. 1041; West v. Day Trust Co., 328 Mass. 381, 103 N.E.2d 813, 29 A.L.R.2d 1224. A memorandum, sufficient to satisfy the statute of frauds, must contain all of the essential or material conditions and terms of the contract.
Among the authorities which support the view we have adopted herein is 1 Restatement, Contracts, Sec. 192, wherein it is said that any contract for which marriage or a promise of marriage is the consideration, in whole or in part, is within the Statute. Also see 2 Corbin on Contracts, Sec. 426; 2 Williston on Contracts, Sec. 486 (Rev. ed. 1936) which says this rule applies in the case of indivisible contracts; Stevens v. Niblack's Adm'r, 1934, 256 Ky. 255, 75 S.W.2d 770; Terry v. Terry, 1936, 264 Ky. 625, 95 S.W.2d 282; Henry v. Henry, 1875, 27 Ohio St. 121; Rogers v. Joughin, 1929, 152 Wn. 448, 277 P. 988, which case recognizes no distinction between contracts made "in contemplation" and those made "in consideration" of marriage. Also see 37 C.J.S. Frauds, Statute of ยง 230, which states that where one of the considerations for payment of money or transfer of property is a promise of marriage, the contract is within the Statute and the whole contract must fail, but that it is otherwise where the promise to marry is separable from the agreement to pay money or transfer property.
An agreement to leave such an estate in a certain manner amounts to a contract to devise real property. Turnipseed v. Sirrine, 57 S.C. 559, 35 S.E. 757, 1035, 76 Am.St.Rep. 580. A contract to devise real property falls within the statute of frauds as a contract for sale of lands. Gibson v. Crawford, 247 Ky. 228, 56 S.W.2d 985; Gould v. Mansfield, 103 Mass. 408, 4 Am.Rep. 573; Hale v. Hale, 90 Va. 728, 19 S.E. 739; Rogers v. Joughin, 152 Wn. 448, 277 P. 988; Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010; 2 Williston on Contracts, Revised Edition, 1404, sec. 488; Restatement of the Law, Contracts, sec. 193; Anno. 102 Am.St.Rep. 240, sec. VIIIa. Our statute of frauds provides: (sec. 1529 N.C.L. 1929) "Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made." We are then left with the instrument itself.
[1] It is a well settled principle that separate property continues to be separate through all of its changes and transitions as long as it can be clearly traced and identified; furthermore, that rents, issues, and profits from separate property remain separate property. In re Brown's Estate, 124 Wn. 273, 214 P. 10; Rogers v. Joughin, 152 Wn. 448, 277 P. 988; State ex rel. Van Moss v. Sailors, 180 Wn. 269, 39 P.2d 397; In re Binge's Estate, 5 Wn.2d 446, 105 P.2d 689; DuPont de Nemours Co. v. Garrison, 13 Wn.2d 170, 124 P.2d 939; Burch v. Rice, 37 Wn.2d 185, 222 P.2d 847. [2] In In re Dewey's Estate, 13 Wn.2d 220, 124 P.2d 805, we quoted from Guye v. Guye, 63 Wn. 340, 115 P. 731, as follows: