No. 4368 | Colo. | Jan 15, 1903
delivered the opinion of the court.
Actions were commenced' by Alice V. Phillips against Julia M. Phillips, Mattie O. Oswald and Grace J. Anderson, respectively, to set aside certain deeds executed by Sidney Phillips in his lifetime, upon the ground that the said deeds were executed for the purpose of defrauding her, Alice Y. Phillips, of her right as widow to a distributive share of said property. The causes were consolidated, and from judgments rendered in favor of the plaintiff the defendants have appealed to this court.
It was shown upon the trial that several years prior to his death Sidney Phillips executed and acknowledged certain warranty deeds and put them, with letters in envelopes addressed to the appellants, who are his daughters, in a tin box in the cellar of his residence. Later, and in the month of November, 1899, the said deeds were delivered to the grantees therein named, and were duly recorded in the office of the recorder of Arapahoe county. It was admitted that in the years 1898 and 1899 Sidney Phillips filed a schedule of property with the county assessor of Arapahoe county, wherein the property described in the deeds mentioned was returned for taxation as his property. And in the decree this finding appears: ‘ ‘ The intention of Sidney Phillips was to treat everyone alike in the disposition of his property, but in 1888 he made three deeds to his three daughters, defendants in the consolidated causes, and buried the same in the cellar, where they remained several years; that plaintiff discovered these deeds, but said nothing to her husband touching them, and that she knew of the existence of these deeds for years; but the court
The finding of facts is clearly supported by the evidence, except, perhaps, that portion thereof which finds that Sidney Phillips collected the rents cash'd paid the taxes and paid the insurance and treated the property in all respects thereafter as though it were his own property. .Sidney Phillips died July 1, 1900. "While the testimony, shows that Mr. Phillips kept and retained general supervision of the property after the deeds were delivered to his daughters, it was shown that one of the daughters paid her wages to her father and contributed toward the payment of taxes; that another daughter collected and retained some of the rents; that the daughters authorized their father to collect the rents. Mrs. Oswald testified that after her father came to her house to live, shortly before his death, she collected the rents from the property conveyed to her and used the money for her support and that of her father. It is shown by the tes
The plaintiff relies chiefly upon the case of Smith v. Smith, 22 Colo., 480" court="Colo." date_filed="1896-04-15" href="https://app.midpage.ai/document/smith-v-smith-6562756?utm_source=webapp" opinion_id="6562756">22 Colo., 480, and 24 Colo., 527" court="Colo." date_filed="1898-01-15" href="https://app.midpage.ai/document/smith-v-smith-6562952?utm_source=webapp" opinion_id="6562952">24 Colo., 527, to sustain the judgment. While the facts in the case mentioned are somewhat analogous, they are so different in essential particulars that we feel that the decision of that case is not decisive of this. There was no proof of the delivery of the deeds in the Smith case until the day before the grantor died, and the court found that the deeds were withheld from record for the purpose of preventing the wife of Smith from learning of the facts; that there was a collusive agreement between the father and the children, and that the property was conveyed, with the connivance of the children, for the purpose of defrauding Mrs. Smith. It was further found by the court that all the allegations of the complaint were true as alleged, and it was alleged in the complaint that “From the time of the execution of these deeds until they were recorded, they remained under the exclusive care and control of the grantor.” It also appeared that at the time of the recording of the deeds Smith was expected to die, and that he not only conveyed all his real estate to his children but that he drew from the bank, a few hours before his death, the little money he had and gave it to one of his sons, and that he left his wife penniless. The court held tlie deeds invalid and fraudulent. In the course of the opinion, the following is quoted with approval: “There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence, and exonerated from the claim of his wife, provided the transaction is not merely colorable, and be unattended with circumstances indicative of fraud upon the rights of the wife. If the disposition of the husband be bona fide, and no right is reserved
The authorities generally hold that qolo rabie conveyances made for the purpose of defeating the wife’s right are not valid; that conveyances made in immediate expectation of death to accomplish the purposes of a will are testamentary in character and do not defeat the right of the wife; that conveyances made in contemplation of marriage, without the knowledge of the intended wife, for the purpose of defeating the right of dower, are regarded as fraudulent.
In the Smith case, as we read it, it is decided that a husband may dispose of his property for the purpose of defeating the right of the wife, and unless the transaction is colorable merely, or is attended with circumstances indicating fraud, it will be good as against the wife; and the fact that the husband intended to defeat her right is not in itself sufficient to invalidate the conveyance — there must be participation in fraudulent conduct by the grantee.
The deeds we have before us are not testamentary in character. The title passed from grantor to grantee when the deeds were recorded. There is no reservation in them postponing the vesting of title until the death of the grantor; there is no power of revocation; and, as far as the deeds are concerned, there is nothing shown to indicate an intention on the part of the grantor to have them operate as a will. Nor does the time of their delivery indicate an intention to have them accomplish the purposes of a will. They were delivered seven months, and more, before Mr. Phillips ’ death, at a time when he was about and able to transact business. There is nothing to show that his health was impaired to such an extent as to warrant a finding that he believed his death to be imminent, or that he delivered the deeds because of his an
The conclusion of the court that the deeds were testamentary in character appears to have been based upon the fact that letters addressed to the daughters were found in a tin box, with other valuable papers, after the decease of Mr. Phillips. The court uses this language: ‘ ‘ The court finds that when the said Sidney Phillips made these deeds to his daughters he intended they should be testamentary in character and not be effective until his death; that he changed his mind but did not change the letters to the daughters. ’ ’
The deeds were inclosed with letters in envelopes addressed to the daughters-, and placed in a tin box. The letters contained directions to the daughters concerning the property conveyed. The deeds were subsequently withdrawn and delivered to the daughters. In thus severing the deeds from the letters, and delivering the deeds, their character was completely changed. As long as they remained with the letters and under the control of Mr. Phillips, his intention, undoubtedly, was to have the deeds become effective only upon his death; but when he delivered them, his intention w;as to have them take effect at once.
The deeds, not being testamentary in character, are valid deeds of conveyance of the property described therein, unless the testimony disclosed a fraudulent agreement between the parties. The testimony wholly fails to establish a fraudulent agreement. It is said that the fact that the daughters al
No fraud or collusion between the father and his children having been established, and the deeds in question not being testamentary in character, the judgment of the district court must be reversed.
Reversed.