Gene K. Wiggans, App. v. Kelly D. Wiggans-crawford And Mason Crawford, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GENE K. WIGGANS,
DIVISION ONE
Appellant,
No. 76917-1-1
V.
UNPUBLISHED OPINION
KELLY D. WIGGANS-CRAWFORD, a 4f)
married woman and MASON c0 1:4:
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CRAWFORD, her husband; and the
MARITAL COMMUNITY composed
thereof; and OTHER PERSONS 70-ortl
cfirnC3
OR PARTIES UNKNOWN CLAIMING 7:4P
lar
;
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ANY RIGHT, TITLE, ESTATE, LIEN OR) ett:7
INTEREST IN THE REAL ESTATE )
DESCRIBED IN THE COMPLAINT, ) *".
) FILED: June 25, 2018
Respondent.)
)
DWYER, J. — Gene Wiggans appeals from the trial court's order quieting
title in the name of Kelly Wiggans-Crawford. On appeal, Gene contends that the
trial court's findings are not supported by substantial evidence and the trial
court's findings do not support its conclusions of law. Finding no error, we affirm.
On August 12, 1999, I. Janelle Johnson executed the following
warranty deed:
THE GRANTOR, I. JANELLE JOHNSON, unremarried
widow of BERNARD E. JOHNSON, and as P.R. of the Estate of
BERNARD E. JOHNSON,for and in consideration of ONE
HUNDRED FIFTEEN THOUSAND AND NO/100 DOLLARS
($115,000.00) in hand paid, conveys and warrants titlen to DEAN
No. 76917-1-1/2
WIGGANS and JAYNE WIGGANS, husband and wife, as to all
present interest in the real estate described below and KELLY D.
WIGGANS, a single person, as to an expectancy only — as joint
tenant; as Joint Tenants with Right of Survivorship, the following
described real estate situated in the County of King, State of
Washington . . . .
Johnson died in 2008. On September 15, 2014, Dean and Jayne
Wiggans executed a quit claim deed to themselves and to their son, Gene
Wiggans, conveying "all of Grantor's right, title and interest" in the property. On
December 22, 2014, Dean and Jaynel executed another quit claim deed,
conveying "to GENE K. WIGGANS, dealing in his separate property and DEAN
WIGGANS and JAYNE WIGGANS as to a life estate all of Grantor's right, title
and interest" in the property.2 Dean and Jayne each died in 2015.
On K./larch 30, 2016, Gene filed this action to quiet title to the property in
his name. Kelly Wiggans-Crawford counterclaimed, asserting that the property
should be quieted in her name pursuant to the warranty deed. Both parties
moved for summary judgment. The Honorable Andrea Darvas denied both
motions.
Kelly thereafter obtained the declaration of Johnson's daughter, Pamela
Burgess. Burgess stated that Dean was emotionally and physically abusive and
that Kelly would often be the target of Dean's anger. Burgess explained that she
and Kelly were like sisters and that Johnson urged Jayne to leave Dean on a
I For clarity, Dean, Jayne, and Gene Wiggans are referred to by their given names, as is
Kelly Wiggans-Crawford.
2 Both of these quit claim deeds purported to convey the property pursuant to chapter
64.80 RCW,Washington's Uniform Real Property Transfer on Death Act. Pursuant to RCW
64.80.060(2), a transfer on death deed must "state that the transfer to the designated beneficiary
is to occur at the transferor's death." Neither of the quit claim deeds executed by Dean and
Jayne purported to convey any property upon their death.
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No. 76917-1-1/3
number of occasions. Burgess stated that Johnson's intent in selling her
property was to ensure that Kelly would always have a place to live, regardless of
her relationship with Dean.
Gene obtained a declaration from attorney Barry Kombol, the drafter of the
warranty deed. Kombol stated that the vesting language of the warranty deed
was provided by Dean. Kombol stated that Dean's intent was not to create a
joint tenancy with rights of survivorship or a life estate. Rather, Kombol stated
that he was
specifically instructed to craft language that would accomplish two
tasks: first, to ensure that Kelly Wiggans would obtain no present
interest in the property that would allow her any rights in the
property prior to the death of Dean and Jayne Wiggans and
specifically to prevent Kelly Wiggans from having any ability to
prevent Dean and Jayne Wiggans from conveying the property
however they see fit during their life; and second, to ensure that if
Dean Wiggans and Jayne Wiggans passed away prior to them
conveying the property to someone else during their life, that Kelly
Wiggans would obtain the property and not Gene Wiggans.
Kombol further stated that he was "intending to create ... a transfer on death
deed before the statute creating such deeds existed."
Kelly also deposed attorney Kombol. When asked about his declaration,
Kombol stated that "I'm ashamed to say that there were a couple other things in
this — in this declaration that aren't exactly how I would say — how would I say
what I was doing." Kombol confirmed that, although Johnson was the grantor, he
never spoke with her or otherwise obtained instructions from her regarding her
intent in conveying the property. Rather, Kombol received his instructions
directly from Dean. Kombol explained that he was "virtually certain that it came
from Dean, because only a guy as powerful as Dean could have had me do
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No. 76917-1-1/4
something like this, been so insistent like this to have me draft language that I've
never done before." Kombol stated that he was "trying to make [Kelly] both a
joint tenant but have — I was trying to create an instrument where she had a right
of survivorship but had no present interest. And that — that may be an interest
that doesn't and can't exist."
Both parties again moved for summary judgment. The Honorable Chad
Allred denied both motions. The parties then agreed to try the case, permitting
Judge Allred to "make all necessary legal and factual determinations based upon
admissible evidence contained in the records, motions, declarations, and
pleadings ... and to determine the rights and responsibilities of the parties as to
the real property at issue in this case on the merits without trial."
On May 4, 2017, Judge Allred entered the trial court's revised findings of
fact and conclusions of law.
Findings of Fact
On August 12, 1999, I. Janelle Johnson executed a Statutory
Warranty Deed to transfer real property to Dean Wiggans and
Jayne Wiggans, who were husband and wife, and to Dean's and
Jayne's daughter, Kelly D. Wiggans(now Wiggans-Crawford). As
expressed in the language of the Deed, the objective, mutual intent
of the parties to the Deed was this:(1) Dean and Jayne would
possess the property during their lifetimes;(2) if Kelly outlived Dean
and Jayne, Kelly would own the property upon the later of Dean's
death or Jayne's death; and (3) if Kelly did not outlive Dean and
Jayne, Dean and Jayne would own the property.
Jayne died in August 2015. Dean died on November 21,
2015. Kelly is alive.
Analysis and Conclusions of Law
There is no evidence that the parties to the Deed were
attorneys. The objective, mutual intent explained above is
consistent with—from a non-attorney's perspective—the Deed's
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No. 76917-1-1/5
grant of "all present interest" to Dean and Jayne,"an expectancy
only" to Kelly, and a "Right of Survivorship" to all grantees. Even
though the Deed includes the term "joint tenant(s)," the facts do not
support a conclusion that the parties created the legal interest that
the law calls a "joint tenancy."
Dean or Jayne may have had their own desire or intent as to
what the Deed would accomplish. But that individual, subjective
intent does not control. Likewise, the re-recording of the August
1999 Deed in December 1999 is not material. There is no evidence
that the grantor, Johnson, participated in the re-recording or even
knew about it.
In the Deed, Johnson conveyed:
• A life estate to the marital community of Dean and Jayne
to last as long as Dean or Jayne remained alive;
• A contingent remainder in fee simple to Kelly that(a) was
contingent upon Dean and Jayne dying before Kelly and
(b) would vest if and when Dean and Jayne were both
dead;
• A contingent remainder in fee simple to the marital
community of Dean and Jayne that(a) was contingent
upon Kelly dying before Dean and Jayne and (b) would
vest if and when Kelly died.
Upon Dean's death, Kelly's interest vested and she became
the sole owner of the property. Title to the property should
be quieted in Kelly.
(Footnotes omitted.) Judge Allred entered judgment quieting title to the property
solely in Kelly's name. Gene appeals.
11
Gene contends that the trial court's findings are not supported by
substantial evidence. This is so, he asserts, because the trial court's findings are
contrary to the plain language of the warranty deed and the actions of the parties
following the conveyance. We disagree.
"In a bench trial where the trial court has weighed the evidence, our review
is limited to determining whether substantial evidence supports the trial court's
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No. 76917-1-1/6
findings of fact and whether those findings support the court's conclusions of
law." Newport Yacht Basin Ass'n of Condo. Owners v. Supreme Nw., Inc., 168
Wash. App. 56, 63, 277 P.3d 18 (2012). "Substantial evidence is a quantum of
evidence sufficient to persuade a rational fair-minded person that the premise is
true." Newport, 168 Wash. App. at 63-64 (internal quotation marks omitted)(citing
Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash. 2d 169, 176,4 P.3d 123
(2000)). "If the standard is satisfied, a reviewing court will not substitute its
judgment for that of the trial court even though it might have resolved a factual
dispute differently." Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wash. 2d 873, 879-
80, 73 P.3d 369 (2003). We review conclusions of law de novo. Sunnyside
Valley lrrig. Dist., 149 Wash. 2d at 880.
"[D]eeds are construed to give effect to the intentions of the parties, and
particular attention is given to the intent of the grantor when discerning the
meaning of the entire document." Zunino v. Rajewski, 140 Wash. App. 215, 222,
165 P.3d 57(2007). The interpretation of a deed is a mixed question of fact and
law. Affil. FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash. 2d 442, 459 n. 7,
243 P.3d 521 (2010). "What the parties intended is a question of fact and the
legal consequence of that intent is a question of law." Newport, 168 Wash. App. at
64 (citing Affil. FM, 170 Wash. 2d at 459 n. 7).
The intent of the parties is determined by the language of the deed as a
whole. Sunnyside Valley Irriq. Dist., 149 Wash. 2d at 880. "It has long been the
rule of our state that, where the plain language of a deed is unambiguous,
extrinsic evidence will not be considered." Newport, 168 Wash. App. at 64 (citing
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No. 76917-1-1/7
Sunnyside Valley Irrig. Dist., 149 Wash. 2d at 880). Where ambiguity exists,
extrinsic evidence may be considered to ascertain the intent of the parties to the
deed. Newport, 168 Wash. App. at 65.
Here, the trial court weighed the evidence and made a factual finding that
"the objective, mutual intent of the parties to the Deed was this:(1) Dean and
Jayne would possess the property during their lifetimes;(2) if Kelly outlived Dean
and Jayne, Kelly would own the property upon the later of Dean's death or
Jayne's death; and (3) if Kelly did not outlive Dean and Jayne, Dean and Jayne
would own the property." The trial court's findings lead to only one conclusion:
Dean and Jayne received a life estate with a contingent remainder in fee simple
that would vest upon Kelly predeceasing them, and Kelly received a contingent
remainder in fee simple that would vest upon both Dean and Jayne predeceasing
her. Because Dean and Jayne predeceased Kelly, Kelly's interest vested and
she now owns the property in fee simple absolute.3
The trial court's findings are supported by substantial evidence. The
pertinent portion of the warranty deed states that Johnson "conveys and warrants
title[] to DEAN WIGGANS and JAYNE WIGGANS, husband and wife, as to all
present interest in the real estate described below and KELLY D. WIGGANS, a
single person, as to an expectancy only — as joint tenant; as Joint Tenants with
Right of Survivorship."
3 Dean and Jayne could not have conveyed away more than they owned, which was a
life estate and a contingent remainder in fee simple. Thus, even if the quit claim deeds executed
by Dean and Jayne did grant Gene an interest in the property, his interest was extinguished when
Dean and Jayne predeceased Kelly.
4 Although the warranty deed purports to convey the property to Dean, Jayne, and Kelly
as "joint tenant(s)," the trial court correctly noted that the "four unities"(time, title, interest, and
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No. 76917-1-1/8
A "present interest" is a possessory interest. See RESTATEMENT(THIRD)OF
PROP: (WILLS & DON. TRANS.)§ 24.1 (AM. LAW INST. 2011)("A present interest is
an ownership interest in property that entitles the owner to possession or
enjoyment of the property."). Although the warranty deed purports to convey an
"expectancy" to Kelly, an "expectancy" interest is not a legal term of art
recognized in Washington or in the Restatement.5 Rather, future interests are
characterized as either contingent or vested. "A future interest is contingent if it
might not take effect in possession or enjoyment. A future interest is vested if it
is certain to take effect in possession or enjoyment." RESTATEMENT § 25.3.
possession) were not present. In re Domestic P'ship of Walsh v. Reynolds, 183 Wash. App. 830,
853-54, 335 P.3d 984(2014). Gene appears to concede this. "In the present case, the parties
seem to agree that the Warranty Deed failed to create a joint tenancy since the four unities,
essential in order to create a joint tenancy, were not present in the Warranty Deed." Br. of
Appellant at 28.
Gene contends that, if we conclude that Kelly does have a vested interest in the property,
we should also find that the parties intended to create a joint tenancy. Because the attempt at
creating a joint tenancy failed, he avers, we should conclude that Gene and Kelly became tenants
in common by operation of law. But the trial court found that the parties did not intend to create
an interest identical to the legal concept of a joint tenancy. We do not substitute our judgment for
that of the trial court on factual matters. Sunnvside Valley Irrig. Dist., 149 Wash. 2d at 879-880.
5 Gene cites to various Washington cases in support of his contention that an
"expectancy" is a future interest in real property that can be eliminated. None support his
assertions. Rather, these cited cases discuss an "expectancy" interest in a variety of contexts
ranging from marital dissolution to public easements.
Gene relies primarily on Gillis v. King County, 42 Wash. 2d 373, 255 P.2d 546(1953). In
that case, plaintiffs brought suit to quiet title to a street that was dedicated to the public. Plaintiffs
asserted that, because the street in question was never opened, the public's interest in the street
was vacated pursuant to the automatic vacation statute. Gillis, 42 Wash. 2d at 375. Although the
statute had been amended so as to prevent automatic vacation, thus saving the public's interest
in the street, the plaintiffs asserted that they already had a vested interest in the street that could
not be extinguished by a legislative enactment. Division II of this court disagreed. Division II
explained that the plaintiffs did not have a vested interest in the street but, rather, "a mere
expectancy, dependent upon the street remaining unopened for the full five-year-period." Gillis,
42 Wash. 2d at 377.
Gillis does not support Gene's contention. The plaintiffs in Gillis were never conveyed
any real property. Rather, the only way that the plaintiffs could have obtained an interest in the
property was by virtue of the automatic vacation statute. But that statute was amended, so the
plaintiffs never had any interest in the property. Although various courts have employed the term
"expectancy" to describe a potential interest in property, the term is used generally to explain why
the owners of property abutting a public easement do not have any sort of vested interest in the
easement. Gene cites to no authority using the term to describe a future interest in real property
conveyed to an individual.
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No. 76917-1-1/9
Importantly, a future interest "is a present ownership interest in property, even
though the owner's right to possession or enjoyment is postponed until some
time in the future and may be contingent or vested." RESTATEMENT § 25.1 cmt. a.
The plain language of the warranty deed establishes that Kelly's future
interest in the property was not vested but, rather, was contingent. Because
even a contingent interest is still an ownership interest in the property, Dean and
Jayne could not possibly have held the property in fee simple absolute. See
RESTATEMENT § 24.2 cmt. b ("Because the fee simple absolute (land) and
absolute ownership (personal property) are present interests that are unlimited in
duration, they are never followed by a future interest."). Moreover, because the
deaths of both Dean and Jayne or the death of Kelly was certain to happen,
Dean and Jayne could not have held a fee simple defeasible. See RESTATEMENT
§ 24.3 cmt. a ("An estate that terminates on the happening of an event that must
occur (e.g., the death of an individual or the expiration of a term certain) cannot
be a fee estate.").
Dean and Jayne's possessory interest in the property was thus a life
estate. A life estate is "a present interest that terminates on the death of an
individual whose life serves as the governing life," and "can be qualified by
language specifying one or more events that can terminate the estate before or
extend the estate beyond the death of the individual whose life serves as the
governing life." RESTATEMENT § 24.5(emphasis added). Because the warranty
deed granted both Dean and Jayne as well as Kelly a "right of survivorship,"
Dean and Jayne also received a contingent remainder in fee simple that would
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No. 76917-1-1/10
have vested if Kelly predeceased both of them (at which point the life estate
would have terminated).6
The language of the warranty deed provides a quantum of evidence
sufficient to persuade a rational fair-minded person that the trial court's findings
are true. Thus, those findings are supported by substantial evidence.
Extrinsic evidence also supports the trial court's findings. Contrary to
Gene's assertions on appeal, the appropriate focus for discerning intent is not
Dean's unilateral and subjective intent, as evidenced by his later attempts to
execute quit claim deeds and extinguish Kelly's interest. Rather, the court
should give "particular attention ... to the intent of the grantor when discerning
the meaning of the entire document."7 Zunino, 140 Wash. App. at 222. As
discussed herein, the only evidence of the intent of the grantor comes from her
daughter's declaration. In that declaration, Burgess stated that Johnson's intent
in selling her property was to ensure that Kelly would always have a place to
live, regardless of her relationship with Dean. This evidence supports the
understanding that Johnson would not have conveyed any interest to Dean that
would have allowed him to extinguish Kelly's future interest.
6 Dean and Jayne's future interest might be more appropriately called an executory
interest. A contingent remainder is a future interest that vests automatically upon the happening
of some event, such as the death of a person. But an executory interest is a future interest that
vests by cutting short another interest. See Wash. State Grange v. Brandt, 136 Wash. App. 138,
148-49, 148 P.3d 1069(2006). Because Dean and Jayne had a life estate in the property, but
would have received a fee simple had Kelly predeceased them, the vesting of the fee simple
would have cut short the life estate. The Restatement has dispensed of the term "executory
interest" in favor of characterizing all future interests as either vested or contingent interests.
RESTATEMENT § 25.1 cmt. b.
7 We note that this was not a typical arms-length transaction between a seller and a
purchaser of real property. Rather, the record establishes that the grantor had a special
relationship with the Wiggans family and conveyed her property with the specific intent to ensure
that Kelly would have an interest in that property.
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No. 76917-1-1/1 1
The trial court found that the objective and mutual intent of the parties was
"(1) Dean and Jayne would possess the property during their lifetimes;(2) if Kelly
outlived Dean and Jayne, Kelly would own the property upon the later of Dean's
death or Jayne's death; and (3) if Kelly did not outlive Dean and Jayne, Dean and
Jayne would own the property." Substantial evidence supports the trial court's
findings and those findings, in turn, support the conclusions of law. There was
no error.
Affirmed.
We concur: