197 S.E. 725 | W. Va. | 1938
This controversy involves the delivery of a deed.
In January, 1933, Estell French, a prosperous farmer and merchant, and his wife signed, sealed and acknowledged a deed, voluntarily conveying to their only child, Zeb, certain real estate in Summers County, to-wit, the French homeplace of 153 acres, the Wiley Island of 30 acres and the Newkirk tract of 41 acres, together with all the farming machinery and live stock on the several tracts. Zeb then resided and continued to reside in another county. Estell then resided and continued to reside on the homeplace and continued to treat *269 it and the other property described in the deed as his own. Mrs. French died in August, 1935, and Estell died in October, 1936. The deed, unrecorded, was found with his papers after his death. In September, 1936, while admittedly in sound mind, and after due deliberation, he executed a will devising 26 acres of Wiley's Island to Claude and Clayton Williams; the Newkirk place to Daisy Williams; and the remainder of the real estate mentioned in the deed (including the homeplace) to Zeb. The testator bequeathed all his personal property to Zeb, except farm equipment and tools which he bequeathed to Claude, Clayton and Daisy. A "friendly" relation had existed between Estell and the Williams devisees (all minors) and their mother for a long time and they lived with and helped care for him during the last months of his life.
This is a suit by Zeb to construe the will and to cancel it so far as it relates to those gifts to the Williams children, as a cloud upon his title under the deed. The circuit court decreed in his favor.
There is testimony tending to show that Estell never intended the deed to be effective; there is other testimony tending to show that he did. There is testimony of statements by him after the date of the deed, consistent with his continued ownership of the property; there is other testimony of statements by him after that date inconsistent with such ownership. There is testimony by interested parties of transactions with him which, under Code,
A written opinion of the circuit court shows the chancellor to have taken the view that the deed was manually delivered by the father to the son in January, 1933, and that the subsequent conduct of the parties, inconsistent with an absolute delivery, could not be considered. We are of opinion that this view is erroneous. To constitute legal delivery of a deed, the grantor must intend that it presently vest in the grantee the estate purportedly conveyed. Gaines v. Keener,
The decree is reversed and the cause remanded.
Reversed and remanded.