In Re Estate of Miller

143 P.3d 315
CourtCourt of Appeals of Washington
DecidedSeptember 14, 2006
Docket23802-4-III
StatusPublished
Cited by9 cases

This text of 143 P.3d 315 (In Re Estate of Miller) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Miller, 143 P.3d 315 (Wash. Ct. App. 2006).

Opinion

143 P.3d 315 (2006)

In re the Matter of the ESTATE OF Clifton Eugene MILLER, Jr., Deceased.

No. 23802-4-III.

Court of Appeals of Washington, Division 3.

September 14, 2006.

*316 John L. McKean, Moses Lake, WA, for Appellant.

Christopher F. Ries, Ries Law Firm, Moses Lake, WA, for Respondent.

KULIK, J.

¶ 1 Clifton Eugene Miller, Jr., (Mr. Miller) died in March of 2003, and his wife died a few months later. The Uhlmans, the four children of Mr. Miller's second wife, appeal the trial court's finding of a $57,582.83 loan to Mr. Miller's estate. They assert the money was a gift. Over objection, the court admitted testimony from Mr. Miller's mother and his daughter that the money was a loan, not a gift. We conclude that the mother's testimony was inadmissible under the feelings and impressions exception to the dead man's statute. However, we agree that the daughter's testimony was admissible. We affirm the trial court's conclusion that there was sufficient evidence to overcome the presumption of a gift.

*317 FACTS

¶ 2 Clifton Eugene Miller, Jr., died on March 4, 2003. He was survived by his brother, Bill Miller; his mother, Myrtle W. Miller Oestreich; his daughter, Kristy Jo Freeman; and his second wife, Carmen Miller. Carmen Miller had four children from a previous marriage, Richard, Michael, Tracy, and Mark Uhlman (the Uhlmans). Carmen Miller died three months after Mr. Miller.

¶ 3 Mr. Miller executed a will in 1970, while married to his first wife, Madeline Miller. Mr. Miller did not revise his will after he married Carmen Miller. As a result, the omitted spouse statute required his estate to be divided equally, with one-half to his daughter, Ms. Freeman, and the other half to the four Uhlmans. RCW 11.12.095.

¶ 4 Mr. Miller's mother, Ms. Oestreich, acted as appointed personal representative. She filed a creditor's claim against the estate for $290,048.29. She requested reimbursement for unpaid loans of $269,590.64, rent due of $50,400, and funeral expenses.

¶ 5 Because Mr. and Mrs. Miller experienced poor health during their marriage, Ms. Oestreich often paid their monthly living expenses and she regularly transferred funds into Mr. Miller's account. She also paid Mr. Miller's power, water, phone, insurance, and car payments. Beginning on February 19, 2002, Ms. Oestreich issued four checks to Mr. Miller on which she had written the notation "loan." Report of Proceedings (RP) at 47. Ms. Oestreich also wrote one check to Carmen Miller with the notation "loan." Ex. 3, 4.

¶ 6 In 1982, Ms. Oestreich bought a house for her son, Mr. Miller. She and her son signed a rental agreement setting rent at $200 per month. Mr. and Mrs. Miller lived in the house for 21 years, but never paid any rent.

¶ 7 The Uhlmans objected to Ms. Oestreich's claim against the estate. They asserted that the monies Ms. Oestreich paid to Mr. Miller were gifts, not loans, and that any testimony to the contrary violated the dead man's statute.

¶ 8. At the evidentiary hearing, Ms. Oestreich offered the declaration of Mr. Miller's daughter from his first marriage, Ms. Freeman. In this declaration, Ms. Freeman stated that her father told her he intended to repay the loans from his mother. The Uhlmans objected, and the court reserved its ruling. The Uhlmans also objected to Ms. Oestreich's testimony that it was her impression that the money she paid to Mr. Miller was given as loans.

¶ 9 The court admitted Ms. Oestreich's and Ms. Freeman's declarations. The court found Ms. Oestreich's testimony admissible under the feelings and impressions exception to the dead man's statute. The court determined that Ms. Freeman was not a party in interest because the effect of her testimony would reduce her share of her father's estate. Based on Ms. Oestreich's testimony and Ms. Freeman's declaration, the court determined that the presumption of gift had been overcome in the amount of $57,582.83, including the claim for rent for the six-year statute of limitation period. Specifically, the court approved Ms. Oestreich's creditor's claim for 67 loans made to Mr. Miller in the principal amount of $57,582.83. The court entered findings of fact and conclusions of law and imposed prejudgment interest at 12 percent for an interest total of $21,819.24.

¶ 10 The Uhlmans appeal.

STANDARD OF REVIEW

¶ 11 When reviewing a trial court's findings of fact and conclusions of law, we review the findings of fact to determine if they are supported by substantial evidence in the record. If such a showing is made, the court must decide whether those findings support the trial court's conclusions of law. Landmark Dev., Inc. v. City of Roy, 138 Wash.2d 561, 573, 980 P.2d 1234 (1999). Issues of law are reviewed de novo. Ackley-Bell v. Seattle Sch. Dist. No. 1, 87 Wash.App. 158, 165, 940 P.2d 685 (1997).

ANALYSIS

1.) Was Ms. Oestreich's testimony barred by the dead man's statute?

¶ 12 The dead man's statute, RCW 5.60.030, reads, in part:

*318 [I]n an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person ... then a party in interest or to the record, shall not be admitted to testify in his or her own behalf as to any transaction had by him or her with, or any statement made to him or her, or in his or her presence, by any such deceased, ... person.

(Emphasis added.)

¶ 13 The purpose of the dead man's statute is to prevent interested parties from giving self-serving testimony about conversations or transactions with the deceased. McGugart v. Brumback, 77 Wash.2d 441, 444, 463 P.2d 140 (1969). A "party in interest" is a person who stands to gain or lose by the operation of the action or judgment in question. Bentzen v. Demmons, 68 Wash. App. 339, 344, 842 P.2d 1015 (1993). The test for determining whether a witness's testimony concerns a transaction with a deceased, is whether the deceased, if living, could contradict the witness. Diel v. Beckman, 7 Wash. App. 139, 152, 499 P.2d 37 (1972). Moreover, a party cannot testify indirectly to create an inference as to what did or did not transpire between the party and the deceased. Lappin v. Lucurell, 13 Wash.App. 277, 289-91, 534 P.2d 1038 (1975).

¶ 14 The Uhlmans contend the court erred by allowing Ms. Oestreich's testimony about her impression that the checks she paid to Mr. Miller were loans. She testified, in part, as follows

Q. Mrs. Oestreich, speaking now in terms of your own impression of the checks that you wrote to Clifton, Jr., was it your impression that those checks were loans or gifts?
A. They were loans.
....
Q.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In The Matter Of The Estate Of Dalton Wall
Court of Appeals of Washington, 2026
Vaughn v. Cohen
W.D. Washington, 2025
In Re The Estate Of Zora P. Palermini
Court of Appeals of Washington, 2021
In Re The Estate Of Donald Lewis Cross
Court of Appeals of Washington, 2018
In re the Estate of: Willard F. Johnson
Court of Appeals of Washington, 2017
Estate of Dimond
2008 SD 131 (South Dakota Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
143 P.3d 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-miller-washctapp-2006.