Verbeek's Estate, In re

• Decision Date: 23 March 1970
• Docket Number: No. 111--40661--I,111--40661--I
• Citation: 467 P.2d 178,2 Wn.App. 144
• Parties: In the Matter of the ESTATE of Dewey T. VERBEEK, Sr., Deceased. A. J. VERBEEK, Appellant, v. Irene L. VERBEEK, Administratrix, Respondent.
• Court: Washington Court of Appeals

Page 144

2 Wn.App. 144

467 P.2d 178

In the Matter of the ESTATE of Dewey T. VERBEEK, Sr., Deceased.

A. J. VERBEEK, Appellant, v. Irene L. VERBEEK, Administratrix, Respondent.

No. 111--40661--I.

Court of Appeals of Washington, Division 1, Panel Two.

March 23, 1970.

Bell, Ingram, Smith, Johnson & Level, Lewis A. Bell, Edward e. Level, Everett, for appellant.

Benson & Stege, George Stege, III, Seattle, for respondent.

HOROWITZ, Acting Chief Justice.

Decedent, Dewey T. Verbeek, Sr., died intestate on September 20, 1967. His surviving widow, Irene L. Verbeek, qualified as administratrix of his estate. In that capacity she filed an Inventory and Appraisement which lists a real estate contract on certain described property naming Dewey T. Verbeek, Sr. and Irene Verbeek as sellers, and Philip R. Verbeek and Carol C. Verbeek as purchasers. The description is followed by the insertion of a figure of $13,000 under a heading reading 'Appraised Value.' However, no appraisement by a court appointed appraiser, pursuant to RCW Ch. 11.44, has yet been had nor has notice to creditors yet been published. RCW 11.40.010.

On February 15, 1968, A. J. Verbeek, decedent's son by a prior marriage, filed an objection to the inventory pursuant to RCW 11.44.035 claiming the inventory to be erroneous

in that it indicates there is a balance due and owing and unpaid by the purchasers of the real estate contract, PHILIP R. VERBEEK and CAROL C. VERBEEK, of the sum of THIRTEEN THOUSAND ($13,000.00) DOLLARS, wherein in truth and fact said real estate contract is null and void and of no effect and said real property should have been inventoried as belonging entirely to the estate of said decedent without obligations by contract or otherwise to convey to PHILIP R. VERBEEK and CAROL C. VERBEEK, and without any contractual rights to receive said conveyance vested in them.

The objector then prayed that the inventory be reformed

to disclose the real property * * * as vested in said decedent without contractual obligation to convey the same for any price whatsoever, and that said real property be appraised for its true value without reference to the contractual rights of the aforesaid purchases * * *. ¹

The trial court entered findings, conclusions and order dated July 30, 1968, upholding the validity of the real estate contract inventoried; adjudging the property described in the contract to be community property of the decedent and his surviving widow; and adjudging the balance due on the real estate contract at the time of the death to be in the sum of $12,200 and at the time of trial, $11,800. Appellant objector appealed.

Dewey T. Verbeek, Sr. and Irene Verbeek lived together as husband and wife from 1936 until the decedent's death in 1967, but were not married until December 22, 1953. The real property described in the real estate contract listed in the inventory was acquired by the decedent in his own name on November 21, 1944, in fulfillment of a real estate contract entered into by the decedent on September 15 1937. In 1945, 1951 and 1962, the decedent and Irene Verbeek joined in mortgaging the real property. All mortgage indebtedness, however, has been apparently repaid.

On January 15, 1965, decedent and Irene, his wife, owned no real property other than real property above referred to and here involved. Their home was located on this property. On January 15, 1965, the decedent and his wife Irene executed and acknowledged an Agreement as to Status of Community Property after Death of one of the Spouses under the provisions of which the community property of the parties upon the death of the first to die would vest in the survivor. RCW 26.16.120. The agreement was recorded after decedent's death.

On May 25, 1966, Dewey T. Verbeek, Sr. and his wife, Irene, executed, acknowledged and delivered the contract for the sale of real estate here involved to their son, Philip R. Verbeek and his wife, Carol C. Verbeek. The real estate contract was on a printed real estate form commonly distributed by title insurance companies. The real estate sales tax in the amount of $250 was paid to the Snohomish County Treasurer on May 26, 1966, although the contract was not filed for record until after the decedent's death on September 20, 1967.

Under the terms of the real estate contract the sellers agreed to sell and the purchasers agreed to purchase from the sellers the real estate described free of all encumbrances except that the following provision was typed in: 'That the sellers during their life time or the life time of either shall have the right to occupy said premises and the home thereon, with the right to use said premises for their own personal benefit or gain.' The typewritten provisions also provided that payment was to be made on the following terms and conditions:

The purchase price is Twenty-Five Thousand, and No/100 ($25,000.00) dollars, of which Six Thousand and No/100 ($6,000.00) dollars has been paid, the receipt whereof is hereby acknowledged, and the purchaser agrees to pay the balance of said purchase price as follows: The sum of $50.00 per month shall be payable on the _ _ day of each month as long as both or either of the seller lives, regardless of whether there is a balance due on the contract. That said balance shall not bear interest and in case of the death of both parties, if there is any balance under the contract, the same is to be discharged and remitted and all obligations of purchasers hereunder, financially or otherwise, shall be fully satisfied and there shall be no further payments due or payable on any balance by purchasers. The monthly payments herein provided shall continue during the life time of either of the sellers.

The sellers hereby declare their intent, during the life of this contract to make a gift of $3,000.00 to each of the purchasers on the 1st. day of each year, beginning with January 1st. 1967, to be credited only against any balance which might still be due on the contract.

The sellers agreed in the printed provisions to execute and deliver to the purchasers a warranty deed 'upon receiving full payment of the purchase price and interest in the manner above specified * * *.' The sellers were required to deliver to the purchasers within ten days a title insurance policy in the usual form. The record does not show whether such a title insurance policy was in fact delivered.

With reference to the purchasers' obligations, the printed provisions of the contract provided that the purchasers should pay before delinquency all taxes and assessments, to keep the buildings unceasingly insured against fire, loss or damage, to deliver to the sellers insurance policies, to keep the buildings and other improvements in good repair and not to use the premises for any illegal purpose. The printed provisions further provided that the purchasers should have possession of the real estate and be entitled to retain possession so long as the purchasers were not in default, and that upon default, forfeiture might be declared. With reference to the initial $6,000 payment receipted for by the sellers, the court found that the down payment had been made with a $6,000 gift which the deceased made and delivered to the purchasers in 1966 upon execution and delivery of the contract and that the deceased participated in and delivered a gift of $6,000 to the purchasers on January 1, 1967.

Following the execution of the real estate contract, the sellers remained in physical possession of the real property. However, the purchasers paid real estate taxes thereon in 1967 and 1968; made repairs to the fences; paid for and installed gravel; made installment payments called for in the contract at the rate of $50 per month for 16 months; and the purchasers have continued to pay $50 per month to Irene Verbeek through May, 1968.

Appellant contends (1) that the real estate contract is void because it is a testamentary instrument not executed in accordance with the formalities required of a will (RCW 11.12.020); (2) that the real estate described in the real estate contract is the separate property of the decedent and should be so inventoried; and (3) that the true balance owing under the contract as found by the court is too low.

We turn then to a consideration of the testamentary character of the real estate contract involved. A testamentary instrument, whether or not purporting to be a will, has three essential, although somewhat overlapping, characteristics: (1) It must be executed with testamentary intent; (2) it is revocable or ambulatory during the testator's lifetime, and (3) it operates upon property existing at the date of death and is effective at his death. 1 W. Bowe & D. Parker, Page on Wills § 1.2 (1960); Young v. O'Donnell, 129 Wash. 219, 224 P. 682 (1924). In determining whether the testamentary intent exists with respect to a particular instrument in a case when the maker's intention cannot be ascertained from the language used in that instrument, the name given to the instrument or to the legal relationship created, whether it be 'deed', 'contract', 'lease', or other relationship, is helpful but not controlling. One must look to the provisions of the instrument in order to determine whether the instrument is, in fact, testamentary. Resort may be had to so-called indicia of intention. Such indicia, particularly pertinent here, include the name of the writing given by the parties to the instrument, the form of the instrument, the manner of execution of the instrument, the acknowledgment of the instrument, the recording of the instrument, the way in which the instrument, has been treated by the parties, the fact that the powers of revocation of sale or modification are not reserved in the seller, the fact that the conveyance is not conditional upon the purchaser surviving the seller, the fact that there is no prohibition against recording the instrument until the seller's death, the fact that the...