Penick v. Dekker, 820300
| Decision Date | 07 September 1984 |
| Docket Number | No. 820300,820300 |
| Citation | 319 S.E.2d 760,228 Va. 161 |
| Parties | Paul M. PENICK, Executor, etc., et al. v. Henry J. DEKKER, et al. Record |
| Court | Virginia Supreme Court |
Bevin R. Alexander, Jr., Lynchburg (Bernard C. Baldwin, III; Edward S. Graves; Edmunds, Williams, Robertson, Sackett, Baldwin & Graves, Lynchburg, on briefs), for appellants.
R. David Barbe, Roanoke (David O. Williamson; Gardner, Moss, Brown & Rocovich, P.C., Roanoke, on brief), for appellees.
Present All the Justices.
Paul M. Penick, Executor of the Estate of Walter S. Newman, Jr., and Barbara N. Newman (collectively, the Newmans) filed a bill of complaint for a declaratory judgment against Henry and Louisa Dekker. The Newmans alleged the existence of an agreement settling controversies which arose between the parties respecting the will of LizOtey Hoge Newman. The Dekkers filed a demurrer which the trial court sustained on the grounds that the bill of complaint "shows on its face that no agreement was reached by the parties" and "if an agreement had been reached it would be unenforceable." The Newmans appeal.
A writing purporting to be the last will of LizOtey Hoge Newman was admitted to probate on May 6, 1980. Questions arose between the parties as to the proper construction of the document, whether the testatrix executed it under undue influence, and whether she had mental capacity to execute a will.
The Newmans allege that the parties reached a settlement agreement regarding the division of the estate whereby the Dekkers agreed to pay the Newmans $100,000 in exchange for the Newmans' release of any further claims against the estate and the Dekkers. The Newmans claim the agreement is evidenced by three letters as well as the drafts of contracts signed by the parties, all of which were attached to the Newmans' bill of complaint as exhibits.
The first letter, from the Dekkers to the Newmans, contained the Dekkers' offer to pay the Newmans $100,000 in 50 monthly installments of $2,000 each. In turn, the Newmans were to execute a release "which would become effective upon completion" of the payments and would relinquish any further claims which the Newmans had against the estate and the Dekkers. The letter further provided that in the event of Henry's incapacity to work or his death before all cash payments were made, Louisa would be allowed "60 to 90 days to make the necessary arrangements to continue the payments ... or to revert to an offer of property in settlement of the unpaid portion."
In the second letter, the Newmans accepted the Dekkers' offer of payment, agreed to sign the release after all payments were made, and anticipated an agreement to be prepared by the Dekkers' attorney. The Newmans requested that the agreement provide that "in the event of [Henry's] death or disability ... the payments would revert to an offer of property in settlement," which "would be no other than [the testatrix's] 5/18 acres of the 14.2 acres called the Black Farm."
Thereupon, the Dekkers wrote to their attorney and informed him that these two letters "represent an agreement between the two parties." They asked the attorney to prepare the "necessary documents to implement this agreement." This letter also stated that the Dekkers needed "a clause which permits Louisa, in case of [Henry's] death or inability to work, to have 60 to 90 days grace to make other arrangements."
Thereafter, the Dekkers' attorney prepared an agreement and a nonnegotiable promissory note, a copy of which was attached to the agreement. In their bill of complaint, the Newmans allege that the Dekkers signed the agreement and sent it, with a $2,000 check in payment of the first installment, to the Newmans for their signatures. The agreement provided in pertinent part as follows:
WHEREAS, the parties hereto have reached a settlement of this matter.
Therefore, that for and in consideration of the promise to pay the sum of One Hundred Thousand ($100,000.00) Dollars by a note, a copy of which is attached hereto, the [Newmans] do hereby release and waive forever any and all claims against, or challenges and contests to, any matter whatsoever arising from the provisions of, and specifically the scheme of distribution of, the last will and testament of Liz Otey Hoge Newman executed June 29, 1979. The [Newmans] do further hereby covenant not to bring or to be party to any action at law or in equity against the estate of Liz Otey Hoge Newman, or against any personal representative thereof, or against any beneficiary thereunder.
The nonnegotiable note contained the Dekkers' promise to pay the Newmans $100,000, without interest, in 50 monthly installments of $2,000 each. The note also contained the following provision:
In the event Maker Henry J. Dekker shall, during the...
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