88 Kan. 545 | Kan. | 1913
The opinion of the court was delivered by
Mrs. Caroline M. Patterson was left a widow in 1907. For some years she and her husband had lived with the plaintiff, F. W. Glover, who was a nephew of her husband and who had a son Grover E. Glover. The property in .question had been used by Mrs. Patterson and her husband as their home for many years prior to the time they went to live with Mr. Glover. They had no children. After Mr. Patterson’s death Mr. Glover built a small house for Mrs. Patterson near his own residence in Thomas county, but after a time she desired to return to her former home upon the land in question in Pottawatomie county, and desired Grover E. Glover to come back and take care of her, and stated that he was to take care of her as long as she lived and he was then to have the place. She was between fifty-five and sixty years old and in poor health. The farm had been rented to a tenant who was residing thereon. On May 14, 1907, an “Article of agreement for maintenance” was entered into between Mrs. Patterson and Grover E. Glover, which provided, in substance, that she covenanted and agreed to furnish for the joint use and occupancy of the two the land in question, she to have the right to the use and
When the agreement was first drawn it contained a clause that it should not go into effect until March 1, 1908, and that if either party should die in the meantime the contract should cease and no interest thereunder should pass in or to the real estate, but this provision was, at her instance, stricken out before signing.
The plaintiff argues that the instrument disclosed an intention on the part of Mrs. Patterson to vest a present interest in the real estate in the plaintiff’s grantor, and that regardless of technical rules of con-' struction such intention should be given effect and control. The defendants insist that the instrument is testamentary in character and void for failure to comply with the statute regarding its attestation, or that it is an executory contract for future possession. We think the agreement itself and the statements shown to have been made by Mrs. Patterson indicate quite clearly her intention that in case he carried out his part of the contract during her life the property should then be his, but that it should be hers to all intents and purposes so long as she lived. She might havé conveyed the property to him and taken back an agreement for her support, or she might have contracted therefor and made or agreed to make a will leaving the property to him at her death, but what she did was to contract in the way already set forth, and it does
In Reed, Ex’r, v. Hazleton, 37 Kan. 321, 15 Pac. 177, the contract provided, among other things, that Ricket should retain full possession of the land during his lifetime and make such improvements as he felt able to make; that Hazleton should properly care for and see to his wants in health and sickness, Hazleton to have his home with Ricket, “and after the death of the said Henry Ricket, of the first party, the right and title of the north half of the northwest quarter . . . shall vest in the said John Hazleton, of the second party.” (p. 322.) This part of the contract was held to be testamentary, the rule being announced that if the instrument passes a present interest it is a deed or a contract, although the right of possession may not accrue until some future time,- but if it does not pass any interest or right until the death of the maker it is testamentary. Another case arising out of the same transaction is Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, in which the same rule is followed, the decisive question being whether or not the intention was to vest a present interest or that the instrument should not operate until the maker’s death. Lacy v. Comstock, 55 Kan. 86, 39 Pac. 1024, involved an instrument by which the grantor conveyed and warranted certain real estate, reserving, however, all the rents, issues and profits arising therefrom during his lifetime, and also the privilege and right to dispose of the land, the. instrument expressing that in all other respects it should be a deed of conveyance absolute. It was held that the grantor might thereafter bequeath to another the use of the lands and the rents and profits for a period of time extending two years after his death, and it was said that -it was plain that the transfer was not to be effected until the
Counsel cite Brady v. Fuller, 78 Kan. 448, 96 Pac. 854. There .the instrument in the form of a deed conveyed land and reserved a life estate in the grantor, and following this reservation contained another giving the grantor the power to mortgage, incumber, sell, lease, convey or otherwise dispose of the real estate. The habendum clause contained a recital and condition that if the grantee should die before the grantor, then the estate should revert to the latter as if the deed had not been made. This was held to be a deed conveying a present title subject to a‘ life estate in the grantor, the subsequent reservation being regarded as a power to incumber or dispose of such life estate. Attention is also,called to Nolan v. Otney, 75 Kan. 311,
Plaintiff calls attention to the case of Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351, and suggests that the rule therein announced is applicable here. But in that case the plaintiff not only agreed to stay with and care for the testator, and did care for him faithfully under the most trying circumstances for several months, under an agreement that a will should be left leaving the land to him, but a will was actually made, although afterwards at the instance of other interested parties it was revoked. It was held that having entered into' the contract, and having carried it out so far as he was able during the remaining life of the other party, the plaintiff was entitled to recover, his services being a fair consideration for the land. In Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, the rule was stated that when a definite contract leaving property by will has been clearly and certainly established and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from obj ection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable. Had the plaintiff’s son moved upon the land with Mrs. Patterson and carried out his part of the contract for such
The judgment is therefore affirmed.