160 P. 121 | Utah | 1916
The plaintiff commenced this action of claim and delivery under our statute. Judgment was entered in favor of defendant, and plaintiff appeals.
Two causes of action are stated in the complaint. In the first cause plaintiff seeks to recover the possession, or the value, of a certain certificate representing twenty shares of the capital stock of a certain corporation, which stock, it is alleged, was of the value of $1,000. In the second cause of action she seeks to recover possession, or the value, of 60 head of cattle alleged to be of the value of $3,000. The defendant answered the complaint, and while he disclaimed either ownership or interest in any of the property in question, he, nevertheless, denied that the plaintiff is the owner thereof, and avers that he merely holds the property for its true or rightful owner.
The case, in the court below, went off upon a question of law which arises as follows: The plaintiff and one Hugh W) Coltharp, who was a brother of the defendant, on the 14th day of March, 1914, were husband and wife. Said Hugh W. Coltharp died on the 22d day of August, 1914, and a considerable time before this action was commenced. On the date first aforesaid, Hugh' W. Coltharp made and delivered to the plaintiff, his wife, an instrument in writing which, as copied from respondent’s brief, is in words and figures as follows:
"Deed of Conveyance.
"I, the undersigned, Hugh W. Coltharp, of Vernal, Utah,*392 hereby give, sell, grant and demise all and singular, all of my personal and real property of which I am possessed in pre-sentí to my wife, Hattie Coltharp of Yernal, Utah.
‘ ‘ The consideration of the above grant is love and affection.
“At the time of the ensealing of this instrument, I am contemplating a trip abroad, and knowing the uncertainty of world affairs and being in poor health, it is my desire to provide for said wife.
“It is hereby intended that my said wife shall take an immediate present title in fee simple of my real property and actual personal possession of my personal effects and to do with them as to her may be to her best interest. And to that extent, this instrument may be treated and considered as a general power of attorney to do and to act and to dispose of said real and personal property the same as if it were her own.
“Executed at Vernal, Utah, this 14th day of March, 1914.
Hugh W. Coltharp.
“Executed in the presence of
“Amos Hoeft,
“D. D. Carter, Myton, U.
‘ ‘ The above parties, both principal and witnesses, appeared before me, this the 14th day of March, 1914, and duly acknowledged their signatures thereto.
“J. S. Wilson, Notary Public.”
At the trial the plaintiff produced the foregoing instrument and offered the same as evidence of title to the property in question. In addition to the instrument she also produced proof identifying the property described in the complaint as the property of her husband, Hugh W. Coltharp, at the time of his death, and that the instrument was executed and delivered. The defendant in his answer admitted that plaintiff’s husband owned thirteen head of cattle and no more, and in which he disclaimed all interest as he did in the capital stock. He, as before stated, denied plaintiff’s title. The defendant objected to the introduction of the foregoing instrument in evidence for any purpose, upon the grounds that it was— “immaterial, irrelevant and incompetent, * * * and that it purports to be a general power of attorney, instead of an absolute conveyance of the property in fee simple, and it
The defendant’s objection to the introduction of the instrument was sustained; and, the other evidence standing alone being insufficient to prove title in the plaintiff, the District Court directed the jury to return a verdict upon both causes of action for the defendant, which was accordingly done, and judgment was entered as before stated. Plaintiff excepted to the ruling of the court, and has assigned the same as one of the principal errors.
The evidence shows that at the time the instrument in question was made and delivered Hugh W. Coltharp and the plaintiff were husband and wife; that they were married in April, 1910; that as the fruit of such marriage two children were bom, one of whom, at the time of the trial was three, and the other four years of age; that Hugh W. Coltharp, at the time of his death, was twenty-eight, and the plaintiff twenty-three years of age. Just before the instrument was delivered it was also shown that Hugh W. Coltharp had returned from a fishing trip, and in delivering the instrument plaintiff testified “he told me he came very near getting hurt, and when he came home he told me I better have that,” the instrument in question. She also testified, “He told me to have it recorded.” The instrument was recorded June 7, 1915. It also appears from a recital in the instrument that when it was delivered plaintiff’s husband contemplated mak ing • a trip abroad. The matters last above referred to are material only in so far as they illustrate the circumstances surrounding the parties to the instrument at the time of its execution and delivery. What we must determine, therefore, is whether the instrument in question is merely a power of attorney, as contended for by defendant’s counsel, the force and operation of which ceased at Hugh W. Coltharp’s death, or whether it is to be considered as a deed of conveyance by which all of the property belonging to the grantor was intended to. be and was conveyed to his wife.
“It is hereby intended that my said wife (the grantee) shall take an immediate present title in fee simple of my real property and actual personal possession of my personal effects and to do with them as to her may be to her best interest.”
Then the instrument proceeds thus:
“And to that extent this instrument may be treated and considered as a general power of attorney to do and to act and to dispose of said real and personal property the same as if it were her own. ’ ’
“I * * * hereby give, sell, grant and demise all and singular all of my personal and real property of which I am now possessed in presentí (presentí) to my wife, Hattie Col-tharp.”
Then follows a statement of the consideration that is followed by the recital relative to what induced the grantor to make the instrument, and then follows what we have already quoted concerning the power of attorney. If all that is said concerning the power of attorney is considered, it is plain enough that the grantor merely intended to grant the power in the sense of conferring power upon his wife to immediately dispose of the property. It is too clear for controversy that the grantor intended to make provision for his wife and children in case he should leave them as recited in the instrument. If the instrument be considered merely as .a power of attorney and not as a grant, which power terminated at the death of Hugh W. Coltharp, then he merely constituted his wife his agent, and thus, in a legal sense, made no provision for her at all. Then again, in passing upon the true meaning and effect of the -instrument, it should be borne in mind that it is very inartificially drawn. There are a number of unnecessary repetitions of words used in the instrument. For example, it is said, "I give, sell and demise all and singular all of my personal and real property,” etc. (Italics ours.) Now the .italicized words “give and demise” and the two words “all of” are mere repetitions and neither add anything to nor take anything from the ordinary meaning of the other terms used. Nor can these words be permitted to change or affect the legal effect of the instrument as a whole. The law regards substance and not form. These words must therefore be regarded as mere surplusage.
But it is suggested that by the terms of the instrument she had complete power to dispose of the property as to her might seem best and as though it were her own, and hence she would not have to account for anything she had disposed of under the power granted to her during the husband’s lifetime. That may be one plausible view to take, but it is not the only view, and, in óur judgment, it is not the correct one. As we view it, the correct view and the one which harmonizes all the different parts of the instrument, is that, as before pointed out, the grantor merely intended to confer the power of disposition upon the wife in express terms, whereas that power under the
We are of the opinion that the District Court committed manifest error in its construction of the instrument, and hence in directing a verdict and in entering judgment for the defendant.
For the reasons stated, the judgment is reversed, and the cause is remanded to the District Court of Uintah County, with directions to grant a new trial. Plaintiff to recover costs.