67 Ind. App. 611 | Ind. Ct. App. | 1917
Appellants, Ora M. Chamness, Spencer L. H. Chamness, Rebecca A. Chamness, and Frank M. Chamness, brought this action in the Cass Circuit Court against appellees, Carrie M. Hiller, Edna Ballard and husband, and Mary E. Semans and husband, to quiet title to 120 acres of land in Cass county. Subsequently, by reason of certain provisions of the last will of Lewis F. Murphey, deceased, appellant Kokomo Trust Company, as executor of such will, was joined as a plaintiff. Appellees Carrie M. Hiller, Edna Ballard, and Mary E. Semans, claiming to own the lands involved, each a forty-acre tract thereof, by cross-complaint sought to quiet their respective title against appellants. Answers were filed, and the cause placed at issue. A trial in the Cass Circuit Court resulted in a judgment in favor of appellees. A new trial as of right having been granted appellants, a trial on change of venue was had in
William H. Holland, a widower, died intestate in 1898. Three daughters had been born to him, Caroline, Sarah Alice, and -. Caroline married Lewis F. Murphey, and in 1882 died intestate, leaving surviving her one child, the appellant Ora M. Chamness. The other individual appellants are children of the latter. After the death of Caroline, Sarah Alice also was married to Lewis F. Murphey. She died childless and intestate in July, 1912. William H. Holland’s other daughter married a man named Hiller, and died after the death of her father. Appellees are her children. It will be observed that Ora M. Chamness and appellees are nieces of Sarah Alice Murphey. William H. Holland at the time of his decease owned 400 acres of land, which descended in equal.parts to his heirs Ora M. Chamness, Mrs. Hiller and Sarah Alice Murphey. In a division, Ora M. Chamness became the owner in severalty of 160 acres, and Mrs. Hiller and Sarah A. Murphey of 240 acres as tenants in common. Subsequently, the latter acquired by purchase certain town property. At her decease, her husband, Lewis F. Murphey, inherited from her such town property, and ah undivided one-half of the 240 acres. In a division he subsequently became the owner in severalty of the 120 acres involved in this action. Lewis F. Murphey died testate in November, 1912. It is conceded here that, by
It is conceded, also, that appellees claim title to such lands only under certain writings in the form of deeds, signed and acknowledged by Lewis F. Murphey on August 20, 1912. If, under the rules that govern, it may be said that such writings were effective as deeds, to pass title, then the judgment must be affirmed, otherwise reversed.
The facts are as follows: During the last years of his life, Lewis F. Murphey resided at Galveston in Gass county. Benjamin F. Bichards, an attorney, also resided at Galveston and attended to most of Mr. Murphey’s legal business, and during the last year’s of the latter’s life was the custodian of his-will. Shortly after the decease of his second wife, Murphey, as we have said, acquired title in severalty to the lands involved here, an undivided interest in the 240-acre tract having been inherited by him on the decease of his said wife. Shortly thereafter, on August -20, 1912, Murphey called at Bichards’ office, and recited to him that he had an understanding with his wife that the lands should go to her four nieces.
The deed to Mrs. Semans is as follows:
“Warranty Deed.
“Lewis F. Murphey to Mary E. Semans.
“This Indenture Witnesseth: That Lewis F. Murphey, unmarried and surviving husband of Sarah A. Holland Murphey, deceased, of Cass County in the State of Indiana, convey and warrant to Mary E. Semans of Adams County in the state of Indiana, for the sum of Love and Affection and One Dollar and other considerations named below the following described real estate, situate in Cass County, in the state of Indiana, to-ydt (describing one forty-acre tract). This conveyance is made as a gift to the grantee except that the said grantee at the death of the grantor shall pay to Edna Ballard the sum of Five Hundred Dollars. And the grantor reserves full possession and control of the above described real estate and the right to sell and convey said real estate during his life time, but at his death if he die seized of the above real estate, then this conveyance shall be in full force and effect after the payment of the above sum as set forth.”
The respective deeds signed in favor of Carrie M. Hiller and Mrs. Ballard are identical with the foregoing, except as to grantee and lands described, and except also the portions of the Semans deed which
We are required first to construe these writings, and, second, to determine whether they were delivered. In construing the deeds, we shall not consider or give any weight to the provision for the payment of $500 found in two of them, as no point is tíiade on such provision in the briefs. In construing these writings, we shall for the present assume that the formalities of delivery requisite to their validity’ as deeds were properly observed. On such assumption, it is appellants’ contention that these instruments disclose by their contents that they are testamentary in character and that as the steps required by the statute in the execution of wills were not taken, in that they were not attested by witnesses, they are of no effect. We therefore proceed to determine whether they are testamentary or in the nature of deeds.
In discussing the nature of a testamentary provision and in distinguishing it from a provision amounting to a conveyance, the Supreme Court, in Heaston v. Krieg (1906), 167 Ind. 101, 111, 77 N. E. 805, 119 Am. St. 475, said: “It is, of course, essential to distinguish between such provisions and those in which the beneficiary takes some interest, vested
We have yet to consider, however, the recital to the effect that the grantor reserved also the right to sell and convey the real estate, and that the conveyance should be in full force and effect at his death if he died seized of the lands. The situation, then, is as follows: The grantor conveyed the lands by the use of- language creating a fee, reserving to himself a life estate, with power to dispose of the fee by conveyance within the period of his lifetime. Within rules already referred to, these deeds should be so
Murphey’s intent when he delivered the deeds to Richards was manifested by plain and unequivocal language — take the deeds and keep them for the grantees and deliver them to the grantees at my death. In the case last cited, in effect the following distinction recognized by the authorities, is drawn: Where the grantor, after signing the deed, delivers it to a third person with unconditional instructions that he either presently or on the happening of some inevitable event deliver it to the grantee, the grantor reserving no right to control the disposition of the deed or to modify it, a trust thereby arises of which the grantee is the beneficiary, and which trust may be enforced by.him, but which may not rightfully be violated by either the grantor or such third person. Under such circumstances, the third person becomes trustee for the grantee, the involved trust to be completely executed-at the time and by the performance of the act appointed at its creation. But where the deed is placed in the hands of the third person by the grantor for safekeeping and subject to future
Note. — Reported in 116 N. E. 332. Deeds: What is a delivery of a deed, 53 Am.'St. 537; efficacy of deed deposited with third person to be delivered after grantor’s death, Ann. Oas. 19150 378; construction of instrument in form of deed to become effective upon death of grantor, 7 Ann. Cas. 790, Ann. Cas. 1916D 996. See under (1) 40 Cyc 1085; (3) 40 Cye 1085.