Comings v. Wellman

14 N.H. 287 | Superior Court of New Hampshire | 1843

Gilchrist, J.

The statute provides in substance that any deed of lands and tenements, made by a person in consideration of love or affection, to one who shall become his heir, shall be deemed and taken, if the grantor shall die intestate, to be in advancement of the share of such heir. James Wellman, on the 26th day of August, 1826, conveyed the land in question to his son, Joshua B. Wellman, in consideration, as the deed expresses it, of his “parental love, good will and affection.” If there were nothing more in the case, the land thus conveyed must be regarded as an advancement to Joshua, as it clearly is comprehended within the statute. N. H. Laws 353, Ed. of 1830.

On the 28th day of August, Joshua leased the premises to his parents for their lives and that of the survivor, to hold the same “ for their own use, benefit and improvement,” in consideration of which they covenant that at the expiration of the term he shall take peaceable possession of the premises to himself.

By au instrument bearing date on the 29th of August, James leased the premises to Joshua for his own life and that of his wife, in consideration of which Joshua covenanted that he would support them.

After the execution of these instruments, if they can all be construed as forming one transaction, the title stood as follows, unless there be something in the case to bring us to a different result: Joshua had a fee in the premises, subject to an estate for life in his parents. They conveyed that life estate to him, in consideration of which he agreed to maintain them. There was, therefore, a valuable consideration for the conveyance to him of the life estate ; and the only interest for which there was no other consideration than love and affection, was the remainder in fee after the determination of the estate for life.

But the appellant contends that the instruments do not constitute one transaction, because they appear to have been executed on different days, and that Joshua is estopped, by the recital in the indenture of the 28th of August, that the land was deeded on the 26th of August, from showing that it was executed on a different day ; and he contends that, without this recital, the dates of the instruments are conclusive evidence of the time of their execution.

But the date is no part of the substance of a deed, and need not be inserted. 2 Johns. 234, Jackson vs. Schoonmaker. A party is not estopped from showing that a deed was executed at a time different from its date. 4 Johns. 233, Jackson vs. Bard. But in the absence of all evidence to the contrary, it will be presumed to have been executed and delivered when it bears date. 5 Wend. 533, Jackson vs. Hill. The delivery of a deed subsequent to the date of it, may always be proved, whenever the facts will authorize it. Fairbanks vs. Metcalf 8 Mass. 240. These principles are generally recognized, and they answer the position of the appellant, that the dates are conclusive. In relation to the time of the execution and delivery of the several instrumerits, Florilla M. Ripley testifies that she witnessed the instruments, and that they were all executed at the same time and place.

But the appellant contends that the appellee is estopped, by the recital in the indenture of the 28th of August, from showing that the deed was executed on any other day than the 26th of August. The recital is, “ being the same that the said James deeded to the said Joshua, August 26th, 1826.” He contends that the word deeded means executed and delivered on that day. But this position is untenable. The word has no meaning known in the law, and there is no such verb as to deed in the language. It cannot, then, import the execution and delivery of a conveyance of land. It is merely bad grammar. It can mean nothing more than that James Wellman made a deed bearing that date.

It is also to be remarked, that the doctrine of the conclusive effect of recitals in deeds applies only to essential averments, and not to matters of mere description. The appellee might be estopped from saying that there was no deed, but not from denying that it was executed on a certain day, as its date might purport, because that is not a material part of the deed. Com. Dig., Estoppel, (A 2;) Doughty vs. Fawn, Yelv. 227, (n. 1.) If the date itself be not material, and the deed may be shown to have been executed on a different day, the party could hardly be estopped by a recital of the date.

We are, therefore, of opinion that the conveyance of the life estate to Joshua cannot be deemed to be an advancement, as it was in consideration of the support to be furnished by Joshua to his parents. But the conveyance of the remainder in fee was an advancement, as the only consideration for it was love and affection, and with the value of that the appellee must be charged. The sum is to bo determined in the following manner. The value of the land at the time of the execution of the deed, and also its annual value, must be ascertained, and the duration of the lives of James Wellman aud his wife from the time of the execution of the deed. From the amount of the accruing income for each year as it becomes due, must be deducted the interest from the end of that year until the decease of James Wellman and his wife. •

The amount ascertained by adding together the value of the income for each year, during the existence of the life estate, after discounting the interest, is to be deducted from the value of the land at the time of the execution of the deed, and the balance, if any, without interest, is the sum to be charged the apjiellee, as an advancement upon the settlement of his account in the court of probate.

The decree of the judge of probate must, therefore, be reversed, and the appellee charged with the value of the reversion of the life estate, to be determined on the principle above mentioned.

Decree reversed.