In Re the Estate of Levas

206 P.2d 482, 33 Wash. 2d 530, 1949 Wash. LEXIS 460

• Court: Washington Supreme Court
• Decided: May 19, 1949
• Docket: No. 30687.
• Status: Published

Opinions

Schwellenbach, J.

This is an appeal from a decree construing the will of John Levas, deceased, upon a petition filed by the executor, seeking to have the decedent vendee’s interest under a real-estate contract adjudged to be personal property and subject to sale under the will. The petition was resisted by George Levas, son of deceased, who claimed that the interest under the contract passed to him by the terms of his father’s will.

No statement of facts was furnished in this case, and we are therefore limited, in our determination of the question before us, to the facts as found by the trial court in the order appealed from. In Levas v. Massachusetts Bonding & Ins. Co., 21 Wn. (2d) 562, 152 P. (2d) 320, we said:

“The record discloses that evidence, both oral and documentary, was introduced at the trial and considered by the court. No statement of facts or bill of exceptions, however, has been brought to this court on appeal. In that situation, the only question presented for review is whether the factual findings of the trial court support the judgment; and in the consideration of that question it is to be conclusively presumed that such findings are correct. In re Munson’s Estate, 189 Wash. 537, 66 P. (2d) 293; Bennett v. McKellips, 8 Wn. (2d) 176, 111 P. (2d) 558; Chas. H. Lilly Co. v. Parrino, 18 Wn. (2d) 128, 138 P. (2d) 206.”

The decree is as follows:

“In the Superior Court of the State of Washington

For King County

In Probate

In the Matter of the Estate of John Levas, also known under the name Livanas,

Deceased.

No. 104840

Decree Construing Will and Adjudging Real Estate Contract to Be Personal Property.

“The above-entitled matter came on regularly for hearing on the 17th day of February, 1948, before this Court, Department No. 1, the undersigned Judge presiding, upon the petition of Christ D. Lillions, Executor of the Estate herein and attorney for said estate, asking for a decree of the Court construing the will of the deceased herein and declaring and adjudging as personal property that certain asset of the estate consisting of a real estate contract dated September 27, 1946, by and between Erling Smedvig and Henny Smedvig, his wife, and Magne Smedvig and Esther Smedvig, his wife, as sellers, and J. Morton Barnes and Dolly Barnes, his wife, as purchasers, which the decedent purchased upon a purchaser’s assignment of real estate contract and deed on the 1st day of November, 1947, covering the property described as

“East 5 feet of Lot One (1) and all of Lot Two (2), Block One (1), Edgemont Addition to the City of Seattle, according to plat thereof recorded in Volume 4 of Plats, page 86, records of said County, Except a portion of said Lot Two (2) condemned in King County Superior court, Cause No. 236360, for widening Aurora Avenue, et al, as provided by Ordinance No. 59719 of the City of Seattle, and on which is situated a building known as 1062 39th Street;

the said executor appearing in person and as attorney for the estate; George Levas, son of the deceased and joint executor of the will of the deceased, appearing in person and by his attorney, Reeves Aylmore; and Alex Livanas, brother of the deceased and one of the beneficiaries of the will, appearing by his attorney, Granville Egan; evidence having been heard and it appearing to the Court that John Levas died on December 5,1947, that his last will and testament was duly admitted to probate on December 13, 1947; that the estate has been duly adjudged solvent and that said will provides, among other things, as follows concerning disposition and distribution of real estate and personal property left by the deceased, to-wit:

“ ‘Second: I direct the executors of my will, hereinafter named, to pay all my just debts and obligations. I hereby further direct that all my personal property, including bonds and securities of any kind, which I may have at the time of my death, be sold and reduced into cash as soon thereafter as may be convenient.

“ ‘Fourth: I hereby give, devise and bequeath to my son, George Levas, all real estate which I may have at the time of my death.

“ ‘Sixth: I hereby give, devise and bequeath all other cash remaining after payment of the above-named legacies to my brother, Alex Livanas, resident of Bartholomew Elias, Greece and in case of his death to those legally entitled to inherit under the laws of the United States.’ It appearing further that said real estate contract between Erling Smedvig and Henny Smedvig, his wife, and Magne Smedvig and Esther Smedvig, his wife, as sellers, and J. Morton Barnes and Dolly Barnes, his wife, as purchasers, mentioned hereinabove, was subsequently assigned by the said J. Morton Barnes and Dolly Barnes, his wife, vendees thereof, to certain Sam Kosta and Frances Kosta, husband and wife, and by them assigned on November 1, 1947, to the deceased, John Levas, upon a duly executed and acknowledged Purchaser’s Assignment of Real Estate Contract and Deed, reading as follows:

“ ‘Purchaser’s Assignment of Real Estate Contract and Deed

“ ‘For value received, the assignors, Sam Kosta and Frances Kosta, his wife, holders of that certain real estate contract entered into on the 27th day of September, 1946, between Erling Smedvig and Henny Smedvig, his wife, and Magne Smedvig and Esther Smedvig, his wife, as sellers, and J. Morton Barnes and Dolly Barnes, his wife, as purchasers, for the sale and purchase of the following real estate situated in King County, Washington, to-wit:

“ ‘East 5 feet of Lot One (1) and all of Lot Two (2), Block One (1), Edgemont Addition to the City of Seattle, according to plat thereof recorded in Volume 4 of Plats, page 86, records of said County, Except a portion of said Lot Two (2) condemned in King County Superior Court, Cause No. 236360, for widening Aurora Avenue, et al, as provided by Ordinance No. 59719 of the City of Seattle,

do hereby assign, transfer and set over to John Levas, an unmarried man, the assignee, the said real estate contract, and said assignors do bargain, sell and convey said described premises to said assignee, who hereby assumes and agrees to fulfill the conditions of said real estate contract.

“ ‘Dated this 1st day of November, 1947.

“ ‘Sam Kosta

“ ‘Frances Kosta

“ ‘State of Oregon,

County of Multnomah.

“ ‘On this day personally appeared before me Sam Kosta and Frances Kostá, his wife, to me known to be the individuals described in and who executed the within and foregoing instrument, and acknowledged that they signed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned.

“ ‘Given under my hand and official seal this 1st day of November, 1947.

“ ‘John D. Damis

“ ‘Notary Public in and for the State of Oregon, residing at Portland, Oregon. My commission expires June 3, 1949.’

(Notary’s Seal)

It appearing further that the agreed consideration for such Purchaser’s Assignment and Deed to decedent was $14,-000.00, and that decedent paid in all the sum of $9,073.67, leaving a balance of approximately $5,000.00 still due thereon, payable in monthly installments of $60.00 or more with interest as provided in said real estate contract; that the said real estate contract together with warranty deed of the said fee owners conveying and warranting the above described real estate to the vendees above said are in the hands of Seattle Trust and Savings Bank for collection of the balance due thereon, with escrow instructions to deliver said warranty deed upon full payment of the balance due under said real estate contract; that John Levas was in actual possession at the time of his death.

“The Court now being fully advised in the premises;

“It Is Hereby Ordered, Adjudged and Decreed that the said real estate contract dated on September 27, 1946, between Erling Smedvig and Henny Smedvig, his wife, and Magne Smedvig and Esther Smedvig, his wife, as sellers, and J. Morton Barnes and Dolly Barnes, his wife, as purchasers, for sale and purchase of the property described hereinabove, same having been subsequently assigned by the said vendees to Sam Kosta and Frances Kosta, his wife, and by them assigned on November 1, 1947, to the decedent as aforesaid, be and the same is hereby adjudged and declared to be real estate and as such inherited by George Levas, son of the deceased, under the provisions of said will.

“To the judgment herein, Alex Livanas, brother of the deceased as aforesaid, has excepted in open Court, through his said attorney, and his exception is hereby allowed.

“Done In Open Court this 23rd day of March, 1948.

“Malcolm Douglas, Judge.”

Appellants rely on the case of Ashford v. Reese, 132 Wash. 649, 233 Pac. 29, and several of the subsequent cases in that series, to sustain their proposition that the vendee’s interest under an executory land contract is not real estate. They further claim that, in order to sustain the trial court, we must overrule the Ashford case. While it is true that there is some confusion as to the relative interests and title of the vendor and vendee under such a contract, it would be mere dicta to decide such a question in a case where a determination is neither necessary nor proper. Had the decedent herein died intestate, the question would be necessary and proper.

The only question for our determination is the intent of the testator, and if that can be determined without going outside the four corners of the will, we are not at liberty to so do.

Rem. Rev. Stat., § 1415 [P.P.C. § 219-39], provides:

“All courts and others concerned in the execution of last wills shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters brought before them.”

In Cotton v. Bank of California, 145 Wash. 503, 261 Pac. 104, this court said:

“It is also well settled by the authorities that, in the absence of express disposition of a portion of the property, if the intention of the testator can be gathered by fair implication by an examination of the entire instrument, then the wishes of the testator should govern.”

A case from this jurisdiction in point is In re McNulta’s Estate, 168 Wash. 397, 12 P. (2d) 389. In that case, the testator died two years after making his will. At the time of his death, he was a purchaser, under an executory land contract, of a duplex dwelling in Seattle, and owed about eleven thousand dollars of the contract price of sixteen thousand. The contract was entered into two days after he made his will, and was not mentioned therein. In his will he provided that there should go to his wife “any and all real estate . . . that I may own in the state of Washington at the time of my death.” It was also provided that his executor should convert into cash all other property not otherwise disposed of. Although it was conceded by the appellant therein that decedent’s interest was real estate and the court so assumed without deciding, it found nothing wrong with the manner in which decedent disposed of his rights under the contract. The court held that the wife received his interest under the will.

Several of the important applicable rules of construction are: (a) each part of the will is construed in connection with the other parts, and effect is given to all if possible; (b) a will is presumed to speak as of the time of the testator’s death; (c) the testator’s intention is to be determined as of the time of execution of the will; (d) words used in a will are understood in their ordinary sense if there is nothing to indicate a contrary intent; (e) where there is room for construction, that meaning will be adopted which favors those who would inherit under the intestate laws; (f) wills should be construed to uphold rather than defeat devises and bequests. In re Lambell’s Estate, 200 Wash. 220, 93 P. (2d) 352; In re MacMartin’s Estate, 131 Wash. 192, 229 Pac. 530; In re Thomas’ Estate, 17 Wn. (2d) 674, 136 P. (2d) 1017, 147 A. L. R 598; Welter v. Seattle-First Nat. Bank, 25 Wn. (2d) 286, 170 P. (2d) 867; Willis v. Barrow, 218 Ala. 549, 119 So. 678.

Looking at the will from its four corners, it can be seen that the testator had, as the objects of his bounty, his son George, to whom he left all real estate which he might have at the time of his death, and his brother in Greece, to whom he left cash. By the second paragraph of his will, he directed that all of his personal property, including bonds and securities of any kind, be sold and reduced into cash.

His will indicates that he had a definite conception as to a distinction between personal and real property. Personal property, which he bequeathed to his brother, was to consist of bonds and securities to be reduced into cash, and any other cash remaining in the estate. It is perfectly clear that, under paragraph 4 of the will, it was his intention that a home which he might be purchasing and living in at the time of his death should pass to his son.

It might even be said that there can be little doubt but that it was the intention of the deceased that respondent was to receive any real estate with regard to which deceased had any rights or interest, contractual or otherwise, at the time of his death. The decedent did not limit the gift to only such real estate to which he had the title or even to such as he owned. Clearly, he intended his son to have his contractual interest in this real estate to which he “had” the right of possession and to which he “had” the con tractual right to complete payment of the one-third balance of the purchase price and then receive title from the escrow holder.

Under appellant’s contention, respondent would receive nothing under his father’s will. That this was the father’s intention is inconceivable to us. Respondent was the principal object of his bounty. The father trusted his ability and integrity sufficiently to name him coexecutor under a nonintervention will. It is perfectly clear to us that the testator intended, by his will, to leave to respondent all real estate, including any interest in any real-estate contract, which he might have at the time of his death.

The judgment of the trial court is affirmed.

Jeffers, C. J., Steinert, Robinson, Mallery, and Grady, JJ., concur.