Jan. 1915]

Opinion Per PARKER, J.

sheriff to retake the property. Neither of these, however, is this case. Here the question is, is it the duty of the sheriff to retain the property after the dissolution of the writ, which is his only warrant for holding it, to enable the plaintiff to determine whether he will appeal, and to perfect the appeal and stay, if he decides to take that course? The statute is silent on the point. If it be his duty to still hold the property, for how long must he hold it? Some authorities suggest that he should hold it for a reasonable time. But who is to determine what is a reasonable time? If that be the rule, the officer will be liable to the plaintiff in case he return the property to the defendant before the end of a reasonable time, and to the defendant in case he refuse to return it on demand after such reasonable time. The position of the officer would be a hard one if he must take the risk of the court or jury trying the action against him agreeing with him as to what is a reasonable time. We think it is for the plaintiff, and not the sheriff, to do what may be necessary to preserve the interests of the former in case of a dissolution of the writ. This he may do by procuring and serving on the officer an order directing him, in case the writ shall be dissolved, to retain the property, or staying the operation of order dissolving in case it shall be made."

Counsel for appellant cite and rely principally upon the decision of the Iowa supreme court in Danforth, Davis & Co. v. Carter, 4 Iowa 230, which involved the question of the preservation of the lien of an attachment, by appeal from an order of the trial court dissolving the attachment accompanied by a supersedeas, where the controversy was only between the parties to the action in which the attachment was issued; the liability of the sheriff for surrendering the property not being in any way involved. Holding that the lien of the attachment held, as between the parties to the action, the court, on page 237 said:

"It appears that on the decision of the court setting aside the attachment, and before the appeal was taken, the sheriff delivered up the attached property remaining in his hands, and the clerk paid over the money which was in his hands, to the defendant's attorney, 'taking an accountable receipt therefor.' The plaintiffs excepted to the decision of the

Opinion Per PARKER, J.

[83 Wash.

court, in refusing to render a judgment against the property, and to order a special execution, and appealed from the

same.

"The question now is, whether the attachment still holds the property, the judgment of the court dissolving it, being reversed. We believe that the only consistent decision is, that it still holds. This court has held in this and other cases that an appeal lies from a judgment of the court, dismissing an attachment. The common effect of an appeal is to suspend the effect or operation of the judgment appealed from, if a supersedeas bond is filed, as required by law. What other object can there be in an appeal, in such a case as the present? And what exempts a judgment on an attachment from the ordinary effect of the appeal? It would seem, upon reason, that an appeal should save this, as well as any other part of a cause."

and on page 239 added,

"When the question bears upon the relations of third persons, it is manifest that the attachment may be gone, when it would not be, if viewed with reference to the two parties alone."

In the later case of Danforth, Davis & Co. v. Rupert, 11 Iowa 547, the court absolved the clerk of the court from liability upon his paying out money, the proceeds of a sale of perishable attached property, upon dissolution of the attachment, before appeal therefrom; the order of the trial court being thereafter appealed from and reversed. Disposing of the contention that the former decision was decisive against the clerk touching his liability, the court said:

"We do not understand that decision as determining the rights of any others than the parties to that suit. In fact the court says that no question touching the rights of third parties. arises in that case, and that the question is decided without reference to such. The court, without doubt, in referring thus to third parties, must have had in view this very cause or the one against the sheriff; because the plaintiffs would, from the nature of the transaction, be compelled to resort to this remedy. We conclude that the defendant is a third party, as thus referred to by the court, and that the

Jan. 1915]

Opinion Per PARKER, J.

right of plaintiffs to recover, as against defendant, has not been adjudicated. When an attachment is dissolved by the District Court, it is a final adjudication upon all questions involved therein, unless, in the proper time, appealed from. That appeal must be taken forthwith to continue the lien; but as between the parties, four days is a reasonable time within which to perfect such appeal.

"In determining what rule the clerk should be governed by when an attachment has been dissolved, and money deposited with him is demanded, we cannot be guided by precedents, because we are unable to find a case presenting the peculiar condition that this one does. It is true that the safest and most correct course, would be for the clerk to obtain an order of court directing him to pay over the money before so doing. Yet we cannot say that he is liable if he does pay over the money in good faith, after the attachment has been dissolved, the suit ended, and without any notice of an appeal given. Is it not the duty of the plaintiff, whose attachment has been dissolved, to be vigilant, if he desires his cause to stand in statu quo? The ruling is against him and he is the only one who can determine whether it is final or not. Had the plaintiffs, who were the only parties interested in having the money remain in the clerk's hands, notified him that they had appealed, and after such notice the defendant had parted with the money, he would have been liable."

Some contention is made rested upon the fact that appellant furnished respondent Coss an indemnity bond securing him, "against any damages that he might sustain by reason of the execution of said writ of attachment." We are quite unable to see that this put upon respondent Coss any obligation to hold the property after the dissolution of the attachment. There was then no longer any attachment to execute, so far as the duty of respondent Coss as sheriff was concerned. We have already noticed that there was no move made by appellant to have the attachment revived and respondent Coss retake the property.

Counsel for appellant dwell somewhat upon wrongs which they conceive as possible to flow from the conclusion we here reach. It must be remembered that the right of seizure of

Syllabus.

[83 Wash. property by writ of attachment under modern systems of procedure is purely statutory. 4 Cyc. 396. The doctrine which calls for our present conclusion works no greater hardship to a creditor than as if there were no attachment statutes, in which event no seizure of a defendant's property could be made until after judgment against him.

The judgment is affirmed.

CROW, C. J., CHADWICK, GOSE, and MORRIS, JJ., concur.

[No. 11984. Department One. January 5, 1915.]

In the Matter of the Estate of C. W. SLOCUM. C. W. KNOWLES, Appellant, V. LAURA SLOCUM, Executrix, etc., Respondent.1

HUSBAND AND WIFE-COMMUNITY PROPERTY-PRESUMPTIONS-BURDEN OF PROOF. Property acquired after marriage, by either husband or wife or both, is presumed to be community property, the burden resting upon persons asserting a separate character to establish that fact by clear, certain and convincing evidence.

GIFTS EVIDENCE. Evidence of title by gift must be clear, convincing, strong and satisfactory.

GIFTS-ESSENTIALS. To constitute a gift of personal property, there must be an intent to presently give, a subject-matter capable of delivery, and the actual delivery at the time.

GIFTS-DELIVERY-PRESUMPTION FROM POSSESSION-BETWEEN HUSBAND AND WIFE-EVIDENCE-SUFFICIENCY. Community property consisting of stocks, bonds and notes passed to the wife as a gift, where they were assigned by the husband to the wife, and were in her possession for twenty days prior to his death, and were kept by her in a secret place to which she alone had access; under the rule requiring actual delivery, with intent to divest present control and dominion, and that possession by an assignee of such instruments presumes a delivery.

SAME. Similar stocks and notes, made payable to the husband or wife, under the understanding that payments were to be made to the husband during life and after his death to his wife, or to either presenting the certificate, but not assigned, do not, under such cir

'Reported in 145 Pac. 204.

cumstances, pass to the wife as a gift; since in the absence of an assignment, there is no evidence of intent to make a present gift, and possession is not alone sufficient to establish title.

SAME. For similar reasons, a certificate made payable to the wife, being presumptively community property, does not, under such circumstances, pass as a gift to her, since the fact of possession alone does not establish, by clear and convincing evidence, the husband's intent to make a gift; and in the absence of any assignment, delivery cannot be presumed from possession.

Appeal from a judgment of the superior court for Clarke county, Back, J., entered October 23, 1913, upon findings in favor of an executrix, in a proceeding to compel her to include certain property in the inventory. Modified.

Miller, Crass & Wilkinson, for appellant.

Henry St. Raynor and McMaster, Hall & Drowley, for respondent.

MAIN, J.-The controversy in this case is over the question whether certain personal property should be inventoried as the community property of C. W. Slocum, deceased, and Laura Slocum, his surviving wife, or whether it was the separate property of Mrs. Slocum. The property in question had been accumulated while the Slocums were residents of Clarke county, Washington.

On December 29, 1904, C. W. Slocum executed a will, giving the use of the property belonging to him, and his community interest therein, to Laura Slocum, his wife, during her natural life, and at her death to descend to the heirs of C. W. Slocum. The latter died on September 20, 1912, and at this time was about 78 years of age. His wife was a few years his junior. The will was admitted to probate on the 7th day of October, 1912. It was what is known as a nonintervention will, and Laura Slocum, the wife, was named as executrix. After the admission of the will to probate, the executrix filed an inventory of the estate.

On December 30, 1912, C. W. Knowles, one of the heirs of C. W. Slocum, deceased, filed a petition in the probate pro