136 Minn. 121 | Minn. | 1917
Action to set aside a purported deed on the grounds that the grantor was mentally incompetent to execute the same; that it was procured by fraud and undue influence; that it was never delivered; and that it was testamentary in character. Plaintiffs appeal from the order denying their motion for amended findings and a new trial.
The findings upon the issues of mental competency and undue influence are acquiesced in, but the validity of the deed is attacked on the ground that it is testamentary in character, rendered so by the express provision contained therein, and therefore its delivery can in no manner aid in transmitting title to real property.
The facts developed at the trial are these: Knute O. Hagen, a farmer of Waseca county owning 360 acres of land and considerable personal property, had been ill for some time. In December, 1913, when told that death might be near, he made a will disposing of his property among his heirs. Afterwards -in February, 1914, by another will, he altered the disposition somewhat. Less than two months thereafter he called in an
Our decisions settle that a person may make a valid conveyance by signing and acknowledging a deed and delivering the same to a third party with instructions to deliver to the grantee upon the grantor’s death, provided the delivery to the third party is such that the grantor retains no right to recall it or control its delivery. A deed so made and delivered vests the fee in the grantee and reserves a life estate in the grantor, and is not testamentary in character. Haeg v. Haeg, 53 Minn. 33, 55 N. W. 1114; Wicklund v. Lindquist, 102 Minn. 321, 113 N. W. 631; Ekblaw v. Nelson, 124 Minn. 335, 144 N. W. 1094; Dickson v. Miller, 124 Minn. 346, 145 N. W. 112; Wortz v. Wortz, 128 Minn. 251, 150 N. W. 809; and Innes v. Potter, 130 Minn. 320, 153 N. W. 604. In such a ease the delivery to the depositary is considered a delivery to the grantee. We think the evidence fully sustains such delivery here, and that the grantor reserved no right to recall the deed. He relinquished all control over it when he caused it to be given to Mr. Bjorklund with
But the contention is that the last four words, in the provision already quoted from the instrument, establish its character as testamentary, hence not a deed and incapable of delivery so as to vest title. The instrument is in the short warranty deed form. Presumptively the grant- or intended it as a conveyance, for otherwise it is merely waste paper of no effect. If two constructions of a written instrument be permissible, one of which renders it void and the other valid, that construction which results in holding it valid and effective should be adopted. Thomas v. Williams, 105 Minn. 88, 117 N. W. 155. We do not think the clause referred to should be construed to nullify the instrument. By the very nature of the transaction a grantor reserves possession during life, or a life estate, when he delivers a deed to a third, person for the grantee, with direction to give it to the latter upon the death of the grantor. Rowley v. Bowyer, 75 N. J. Eq. 80, 71 Atl. 398. That presupposes vesting in the grantee the rest of the estate. We find the instrument here undertook to convey and warrant a present interest in the land, and the subsequent statement therein as to when it should become operative must be held to refer to the time it operates upon and determines the use and occupation reserved to the grantor. The provision here involved is in substance similar to the ones held not to render the instrument ineffective as a deed in Vessey v. Dwyer, 116 Minn. 245, 133 N W. 613, and Ekblaw v. Nelson, 124 Minn. 346, 145 N. W. 112; and the following cases from other jurisdictions, in some of which the language is almost identical with the case at bar, are to the same effect: Abney v. Moore, 106 Ala. 131, 18 South. 60; Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563; White v. Hopkins, 80 Ga. 154, 4 S. E. 863; West v. Wright, 115 Ga. 277, 41 S. E. 602; Brice v. Sheffield, 118 Ga. 128, 44 S. E. 843; Love
In Dickson v. Miller, 124 Minn. 346, 145 N. W. 111, several theories are stated upon which different courts have proceeded in arriving at the result that ai grantor may pass title by a deed delivered to a depositary with direction not to give the same to the grantee until after the death of the grantor. The opinion is also therein ventured “that the most carefully considered cases are based upon the theory that a present interest passes upon the delivery to the depositary, though enjoyment of the estate is postponed, and that upon delivery at the death of the grantor the title in the grantee is absolute.” Although we had thus expressed a preference, so to speak, as to the theory upon which different courts have proceeded some two months before Knute O. Hagen made the deeds, it is not likely that knowledge thereof had reached the attorney who advised him. If Mr. Hagen and his attorney acted upon the theory of law advanced by courts of very high standing, the words used in the quoted provision of the deed seem to be quite apt for the purpose of conveying a title in fee to the grantee with a life estate in the grantor. In Stonehill v. Hastings, 202 N. Y. 115, 94 N. E. 1068, where the grantor had delivered a deed to a depositary with direction to deliver to the grantee after grantor’s death, the conclusion of the referee that the deed “was to take effect upon the death of the grantor and that the latter
The result may not be entirely fair to plaintiffs, because Knute O. Hagen undoubtedly overestimated the property left for the will to operate on. But, on the other hand, if the deeds are set aside, the will, which has been duly admitted to probate, gives plaintiffs a preference of $3,200 and then permits them to share equally with the other children in the residue. -This would appear to be unjust to the children of the second marriage, especially to- those of them who have remained these many years on the farm and largely helped to accumulate the property while during that time plaintiffs were permitted to attend college and acquire a professional education and training. We, however, see no valid legal ground for reversing the order of the trial court.
Order affirmed.