Smith v. Durkee

COSHOW, J. The only evidence of partnership was the testimony of two daughters of the decedent. Their evidence consists entirely of remarks made by the defendant and the decedent to them at different times regarding the relationship between decedent and defendant. The defendant positively denies that a partnership in the technical sense existed between them, and he is corroborated by one disinterested witness, a Mrs. Horr. The'testimony in behalf of the plaintiff referred to is to the effect that the defendant had stated at different times that he and decedent were partners and that the decedent had stated that they were equally interested, sharing alike in the consideration paid for the Clark County farm which was exchanged for the Sellwood property owned by the two at the time of the death of Mrs. Durkee. We are persuaded that no partnership in the technical sense existed between Mr. and Mrs. Durkee. Conceding that the defendant at times expressed the sentiments attributed to him by the witnesses for plaintiff, such expressions are not sufficient to constitute a partnership in a technical sense between Mr. and Mrs. Durkee. It is not an uncommon thing for one spouse to *90 refer to the other as a partner. The conduct of the parties in this case does not indicate that they were conducting’ a partnership business other than as husband and wife. The testimony of the defendant is positive that they bought the farm in Clark County for a home. The conduct of the parties corroborates his testimony. They seem not to have conducted themselves towards their property in a different manner than husband and wife who are fond of each other and living happily together ordinarily transact their affairs. There is no testimony at all of any difference arising between them over property matters. Under the law of this state the deed conveying the Sellwood property to Mr. and Mrs. Durkee as husband and wife constituted them tenants by the entirety: Ganoe v. Ohmart, post, p. 116 (254 Pac. 203). As the survivor of that tenancy the defendant is the owner in fee of the Sellwood tract. It is immaterial that part of the consideration for the purchase was furnished by the wife. Where the wife voluntarily purchases real property, even with her own funds entirely, and takes the title in the name of herself and husband she thereby creates them tenants by the entirety : 13 R. C. L. 1109, § 130. There is no doubt that decedent freely and voluntarily united her'-funds with defendant’s in purchasing the Clark County farm. She joined with defendant in requesting the deed to the Sellwood property to be made in the name of herself and defendant as husband and wife. The conveyance in the instant case is an ordinary deed. There is nothing in the deed that indicates the grantees intended anything contrary to the legal effect thereof. The evidence introduced by both parties preponderates in favor of the defendant regarding the intention of the parties. The attorney *91 who prepared the will for the decedent testified that he informed her before she executed her will that under the deed by which she and her husband held the Sellwood tract they were tenants by the entirety, and that if he survived her he would be the sole owner of the property. There is no evidence that the decedent ever desired any other disposition of the Sellwood property. She lived for some time after executing her will. The defendant testified without contradic-tion that he did not know anything about the estate by the entirety, and that he and his wife had agreed to execute wills in favor of each other. He executed such a will and it was destroyed after the death of his' wife. It is only fair to presume that his wife would have made such a will but for .the information given to her by her attorney while she had under considration preparation of a will and before she had executed it. Defendant concedes that the plaintiff is entitled to an interest in the personal property. Personal property is not held by the entirety in this state: Stout v. Van Zante, 109 Or. 430 (219 Pac. 804, 220 Pac. 414); Ganoe v. Ohmart, above. This admission on the part of defendant is not any evidence of a partnership. The defendant and his wife during her lifetime were owners in common of personal property. The administrator of her estate is therefore the owner of one half of the personal property owned by the defendant and his deceased wife in common. The decree of the Circuit Court is affirmed. Affirmed.