151 P. 347 | Utah | 1915
The plaintiff commenced this action in the District Court of Salt Lake County, in equity, against the defendant as administrator of the estate of one Fannie Maria Little String-fellow. The purpose of the action was to restore a lost deed, which, it is alleged, the deceased, during her lifetime, had executed and delivered to the plaintiff and in which certain property which was specifically described was conveyed to her. The defendant, after admitting all the matters of inducement contained in the complaint, denied the execution and delivery of the deed referred to in the complaint.
The deceased was the wife of the defendant and the sister of the two other grantors in the deed in question. During her lifetime, she was the owner of a one-fifth interest in the property in question, and her two sisters and two younger brothers were the owners of the other four-fifths. She died at Salt Lake City, in January, 1913, and the defendant was appointed administrator of her estate. The plaintiff was the mother of the deceased, and lived on the premises in question, which, it appears, constituted the family home; that is, the home of the mother, the two sisters, and the two brothers. The deceased lived with her husband, the defendant, some little distance from the property in question.
At the trial the plaintiff in substance produced the following evidence:
A. J. Weber, a member of the Salt Lake bar, testified that on the 30th day of December, 1911, the deceased and her two sisters came to his office by appointment to sign and acknowledge the deed in question, and that he read the deed; that the property in question was therein described, and three-fifths thereof was thereby conveyed to the plaintiff by the three grantors, namely, the deceased, Romania, and Clara
Mr. Weber’s stenographer,. Miss Ethel Davis, testified that the three sisters came to Mr. Weber’s office at the time stated by him, through an appointment she made for them.
Mr. Sallee, the principal of the high school of Filer, Idaho, and a friend of the Littles, testified that he knew the deceased in her lifetime, and he was acquainted with the other two sisters and their mother, the plaintiff; that he was in Salt Lake City, from September, 1912, to about June, 1913; that at a certain time during the fall of 1912, when he was at the home of the plaintiff, and the deceased ivas there also, she told the witness that they; that is, “we three girls, had given or deeded the property, this home,” to the mother. This witness testified that the deceased made statements to that effect to him several times, and especially on Thanksgiving night, 1912, when he and she were again at plaintiff’s home.
Mrs. May Dowse, who was ah intimate friend of the deceased, and whose home it seems was close by. where the deceased lived, testified that she very often visited the deceased; that she called on her on New Year’s morning, 1912; that on that morning the deceased told the witness that she and her two sisters had made a deed to the home property and exhibited the deed to the witness; that the deceased said that she and her two sisters wanted to make a New Year’s present of the home to their mother; that the witness examined the deed, and it was signed by the deceased and her two sisters Romania and Clara Little; that Mr. Weber’s name was also signed to the deed and it had his notarial seal attached thereto; that the .deceased said that her brother would call for the deed that morning;' that the brother came while the witness was at the home of the deceased, and the deceased, in the presence of the witness, gave her brother the deed in question. Mrs. Dowse further testified that on the following day, the deceased told her that the “children” had given the deed to thé mother on the preceding day and that she thereafter told the witness that she was glad that the mother had the„ prop
Mr. J. J. Meyers, hotel inspector for the State of Utah, testified that he was a friend of the Littles; that on New Tear’s day, 1912, he was at the Little home making a New Year’s call between the hours of three and five o’clock in the afternoon; that he and Prof. Madden, a teacher, Romania and Clara Little, and the plaintiff were present, that a Written instrument was handed him and he partially opened it; that, while he did not read the whole instrument, he saw that it was signed by the deceased, by Romania, and by Clara Little; that a few days later he was invited to a dinner at the deceased’s home, and while there the question about the home was again brought up. He further testified:
“And I made the remark to Mrs. Stringfellow (the deceased) that I thought it was a nice thing of the children to give the mother the property, and she said, ‘Yes, and I am glad she has got it.’ ”
Mrs. Mabel E. Rothwell, another witness for plaintiff, testified that she knew the deceased in her lifetime; that in October, 1912, the witness called at the home of plaintiff; that she met the deceased there, and, in a conversation about the expense of keeping up a home, the deceased said to her:
“ ‘Yes, you know we girls deed the home to mamma.’ (Quoting from bill of exceptions.) And I said, ‘No, I didn’t know it,’ and she said, ‘We have,’ and I said, ‘That is very nice of you,’ and she said, ‘Yes, we always want mamma to have a home.’ ”
Romania Little, one of the grantors, testified very fully with regard to the execution and delivery of the deed. She, among other things, said: That the deceased, herself, and her Sister Clara, met at Mr. Weber’s office on the evening of December 30, 1911, to sign and acknowledge the deed in question. That they had telephone Mr. Weber, and the deceased had the unsigned deed with her. That the deceased said to Mr. Weber:
That they all three signed the deed there, and Mr. Weber took their acknowledgement, and the deceased then took th'e deed. That the next time she saw it was on New Year is morning, January 1, 1912. That her brother went to the home of the deceased on New Year’s morning and returned with the deed and a note or letter from the deceased and a bunch of violets. That the witness, Clara, and her two brothers then went upstairs to the mother’s room, and the brother then read the note or letter to the mother, after which he gave the deed, the note, and the violets to her. The witness then testified where the deed was kept by the mother, that it was not recorded, and that it was missed some time early in January, 1913. Although the witness testified at great length, it is not deemed necessary to further set forth her testimony in detail.
The older brother also testified that on New Year’s morning he went to the deceased’s home by appointment, for the deed; that he then saw the deceased and Mrs. Dowse, the witness we have before referred to; that the deceased gave him the deed and the note or letter she had written to her mother and a bunch of violets; that he took them all home and delivered all of them to the mother in the presence of his two sisters, and his brother younger than he. This witness further said that the deceased had frequently spoken to him about the mother and had told him that she thought that when he became of age it was his duty to deed his interest in the property to the mother. The older brother was about seventeen years of age, and the younger one about fourteen at the time.
Clara Little’s testimony was practically the same as Romania’s in regard to the signing and delivery of the deed, and the younger brother also testified to the delivery the same as his brother and sisters.
Mrs. Jane Kimball, a lifelong friend of the deceased, testified that shortly after New Year’s, 1912, in a conversation with the deceased, the latter told- the witness that they, the three girls, had given a deed to the mother; that she said that
The plaintiff testified that she had received the deed and told where she had kept it; that it was not recorded, and that she missed.it early in January, 1913; that she had made diligent search, but could not find it anywhere.
It was also shown that during the last sickness of the deceased the defendant sometimes slept in the room where the deed was kept. All the sisters and brothers further testified that the deed, after its delivery, in the presence of the plaintiff, was shown to the defendant, and that plaintiff asked the defendant why he did not sign it, and that he said he did not own the property and did not give it, and did not have to sign; that “I have done my part in having it made up.”
The defendant testified in his own behalf. He said that the latter part of May, or fore part of June, 1912, he prepared a quitclaim deed, whereby the property in question was to be conveyed to the plaintiff; that he prepared it at the request of the deceased, and it Avas to be signed by her, Romania, and Clara Little; that the deed was in his own handwriting on a printed form; and that the same was on the following day signed and acknowledged by the three sisters before Mr. Weber. The witness testified that the deed was prepared for the reason that Romania was at that time being courted by a certain schoolteacher Avho was in some trouble, and for that reason the deceased Avanted Romania’s interest in the property protected. He also said that he frequently saw the deed thereafter at his home until some time in October. The witness also, so far as he kneAv the facts, denied various statements testified to by the plaintiff’s witnesses as well as the statements attributed to him.
Miss Grace Stringfellow, a sister of the defendant, also testified in his behalf. The substance of her testimony is to the effect that in the fall of 1912 the defendant was away from home much of the time; that during his absence the deceased “stayed at her mother’s home part of the time, at
Ada Stringfellow, a sister-in-law of the defendant, testified that, as well as she could remember the time, “it was in the spring or early summer,” perhaps June, 1912, when she met the deceased, Romania, and Clara Little in front of the Boston Building in Salt Lake City; that they spoke to her and said that they had been up (in the building) to see about having a deed signed for their mamma; that she observed that the deceased held a paper in her hand “indicating” a deed, and she said, “We have been up having a deed signed for mamma. ’ ’
Mr. Weber was also called as a witness by the defendant
The District Court made the following findings of fact:
“That the said Fannie M. Little Stringfellow did not, on December 31, 1911, or at any other time, convey a transfer by any good or sufficient deed her interest in or to the property hereinbefore described, and that the said Fannie M. Little Stringfellow did not convey to the plaintiff herein her interest in or to said property or any part thereof; that the said Fannie M. Little Stringfellow did not on or about the first day of Januaiy, 1912, or at any other time, deliver to the plaintiff any deed to the said described lands; that the plaintiff herein did not at any time lose any deed to the said described premises which has been executed by the said Fannie M. Little Stringfellow.”
The court then proceeds to find that the deed was made, acknowledged, and destroyed as claimed by the defendant and his sister. Upon such findings, the court made conclusions of law and entered judgment dismissing plaintiff’s complaint. The plaintiff appeals. Her counsel, in their brief, state the matter presented for review thus:
“This appeal being taken wholly on questions of fact and sufficiency of the evidence to warrant the findings of the court, it is not necessary,” etc.
We have carefully read all the evidence which is preserved in the bill of exceptions, and we have attempted to reflect the controlling portions thereof as fully as it is possible to do that within the limits of an ordinary opinion. Counsel for the appellant insist that, in view that this is an equity ease, she is entitled to our judgment upon the facts, and that
In our judgment, the findings of the district court are not only against the great weight of the evidence, but they are against the inherent probabilities which naturally arise therefrom. ’ Mr. Weber, Miss Davis, his stenographer,
It is contended that the children of plaintiff were biased in their mother’s favor, as a matter of course, and that the other witnesses were her friends, and thus were influenced by their friendship. It is no doubt true that friendship in many instances may and does tend to influence a witness so that he may color his statements most favorable to his friend. Mere friendship will, however, not invent facts and commit willful
It is suggested, however, that, if the deed in question was executed and delivered as testified to by plaintiff’s witnesses, then the defendant and his witnesses must have committed perjury. This conclusion does not necessarily follow. So far as Miss G-race Stringfellow’s statements are concerned, all that she said may in substance be true, yet it in no way affects the truthfulness of plaintiff’s witnesses. Miss Stringfellow may have seen a paper destroyed which she concluded or assumed was a deed. It is significant that she saw no signatures to the instrument that she said was destroyed and noticed no notarial seal attached thereto. What Miss Stringfellow de- , scribed, therefore, was not an executed deed, but she merely concluded or assumed that the paper she saw was a deed. Then, again, it was an easy matter for her to have been mistaken regarding the import of the deceased’s declaration made at the time. That she was mistaken in that regard is made clear from the fact that the deceased repeated her former declarations to Mrs. Kimball that the property had been deeded
In conclusion, we desire to add that while due consideration should always be given to the fact that the trial courts have an opportunity to see and hear the witnesses, and therefore are in a better position to determine the weight or effect that should be given to their statements, or to the statements of any one of the witnesses, yet that fact standing alone cannot always control. This ease affords an '^pt illustration of what has just been stated. In the case at bar, plaintiff’s witnesses stand unimpeached either directly or indirectly. Nor is there anything in their statements from which one might say that they were mistaken, much less that they testified falsely. Where there is such an array of credible witnesses, whose reputations stand unassailed, and when there is nothing made to appear why their statements should not be believed, and where at least many circumstances are made apparent why the statements should be believed, this court cannot escape the responsibility of determining what the findings and judgment should be, regardless of what the trial court may have found. Under such circumstances, we must follow our own convictions which naturally spring from a consideration of all the evidence, and enter judgment accordingly.
The judgment therefore is reversed, and the case is remanded to the district court of Salt Lake county, with directions to set aside the findings of fact and conclusions of law and to enter findings of fact and conclusions of law in accord-