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                                                 UNPUBLISHED OPINION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:
                                                                                        32 24
                                                                                        rn Cr
CRAWFORD, her husband; and the
MARITAL COMMUNITY composed
thereof; and OTHER PERSONS                                                               70-ortl
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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.

                                              - 2-
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

                                        - 3-
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

                                         -4-
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


                                         5
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


                                           6
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

                                                 - 7-
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.

                                                  -8-
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


                                         9
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.

                                              - 10-
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: