247 P. 554 | Mont. | 1926
Burden of Proof: See Jones on Evidence, 2d ed., sec. 1920; 2 Pomeroy's Equity Jurisprudence, 951; Emerson-Brantingham Impl.Co. v. Anderson,
Undue Influence: Pritchard v. Henderson, 3 Penne. (Del.) 128, 50 A. 217, 223; In re Douglass Estate,
Nondelivery of Deed: Moore v. Trott,
Mental Condition of Harvey L. Keene: Magness v. Ditmars,
Undue Influence: Sappingfield v. Sappingfield,
Delivery of the Deed: Nolan v. Otney,
"Deposit of a deed to be delivered on the performance of a condition after the death of the grantor stands on the same footing as a deposit for delivery unconditionally after the grantor's death, so that the grantee may after the death of the grantor perform the condition to take the title as of the date when the deed was deposited." (Note, Ann. Cas. 1915C, 381;Dettmer v. Behrens,
The plaintiffs alleged in effect that when their father signed the deed he was not competent to do so and, further, that the deed never was delivered.
The father of the litigants was for many years prior to his death a resident of Broadwater county, wherein he owned two farms, aggregating about 900 acres of land. One of the farms is called the home place, which consists of about 600 acres, and the other the Duck Creek, or lower, place. When Gray P. Keene was coming of age he told his father that if he would give him the lower place he, Gray, would remain with his father and help him, otherwise he wanted to go out and work for himself. The father promised to do as his son requested. On the lower place there was then a two-room log cabin. Some time after that, in 1907, father and son erected a nine-room house thereon; the father paid for most of the materials required while the son did the work or paid for the labor. The son himself set out an orchard, paying for the trees. The new house evidently was built in contemplation of the son's marriage, which took place the year the house was built. Gray P. Keene and his wife have lived there ever since.
Harvey L. Keene maintained feelings of affection toward his children at all times and was desirous of dividing his property between them. Mr. Keene, according to the testimony of Dr. Gilham, who was his physician for many years, was a man of decided views and of strict integrity. He was not given to vacillation once he had decided upon a policy. The doctor heard him "mention many times that he had fixed his property so that it would not come into litigation after his death." *407
As early as 1913 Harvey L. Keene made deeds, by the terms of which he divided his lands. The home place was divided equally, as nearly as might be, between his daughters, Myrtle and Olive. What became of these deeds the record does not disclose, but in 1918 he made new deeds with the same purpose in mind. At this time Inez P. Keene, his wife, mother of the children, objected to signing the deeds; she told Mr. Keene he had no right to sign away her property. To obviate this objection he included her in the deeds in this fashion: the property intended for Gray P. Keene (the Duck Creek, or lower, place) he conveyed to him and Inez P. Keene; the property intended for Myrtle K. Plymale he conveyed to her and her mother, and he did likewise with the property intended for Olive K. Plymale. Even before this, it would seem from the testimony, the children of Harvey L. Keene were paying him rentals for the identical lands which he included in the deeds; each paid him $300 annually; and this policy was pursued to the date of his death. Inez P. Keene passed away October 19, 1921. As a consequence of that event Mr. Keene in the following December determined to redraft the deeds. At that time he was living at the home of Mrs. Myrtle K. Plymale in Townsend. On December 10, 1921, Gray P. Keene, at the instance of his father, telephoned his sister Olive that their father intended to change the deeds and requested her presence, but she did not respond. On that day Gray P. Keene, at the father's request and in his presence, copied new deeds from the old. The deeds were warranty in form and without condition. No change was made in the description of the property intended for Gray P. Keene. There was no change in the deeds to Myrtle and Olive except that by the new deeds Myrtle was given a small amount of additional land upon which trees were growing and Olive was deprived of that much. After the deeds were copied Gray and Myrtle compared them to see that no mistake had been made. Harvey L. Keene and his son then went to the First National Bank of Townsend where Harvey L. Keene signed and acknowledged *408 the three deeds before Miss E.C. Corey who was a notary public. Harvey L. Keene then called for three envelopes in which he placed the several deeds. All were indorsed substantially in like tenor. The envelope containing the Gray P. Keene deed reads: "The First National Bank of Townsend, Mont. Deliver to Gray P. Keene of Canton, Mont. after the death of Harvey L. Keene and his funeral expenses are paid." The envelopes were then deposited with the bank, and Miss Corey, for the cashier, executed three receipts. These appear to have been written upon stock forms in use by the bank. The one relating to the Gray P. Keene deed reads as follows:
"Not negotiable. No. 10.
"Property deposited for safe keeping with the First National Bank, Townsend, Montana.
"Dec. 10, 1921.
"This certifies that H.L. Keene has deposited with the 1st Natl. Bk. Townsend for safe keeping, the following described property, viz.: 1 envelope containing deed to be delivered to Gray P. Keene after the death of Harvey L. Keene his funeral expenses are paid. At owner's risk.
"E.C. COREY for Cashier. "H.L. KEENE, accepted."
When the receipt was handed to Harvey L. Keene he signed it and delivered it to Gray P. Keene who retained it until after the death of his father.
Some months after Mr. Keene's death, which occurred December 22, 1922, Gray P. Keene filed an affidavit showing that his father's funeral expenses had been paid and received from the bank the envelope containing the deed. He then placed the deed of record. This suit resulted. The court found for the defendant, Gray P. Keene, and the plaintiffs appealed.
1. There was considerable testimony introduced respecting the[1] mental capacity of Harvey L. Keene at the time he made the deed. Mr. Keene had been in failing health for a number of years and the death of his wife, to whom he was greatly attached, was a heavy shock. Upon this feature of *409
the case there was a sharp conflict in the evidence, but the trial court found as a fact that on the 10th of December, 1921, Harvey L. Keene was mentally competent to make and did make the deed in question, and that he was not then acting under the duress or undue influence of any person. We shall not disturb this finding. (Allen v. Petrick,
2. In an exhaustive note to the case of Jackson v.[2] Jackson,
In a case found in Ann. Cas. 1915C, page 381, immediately following Jackson v. Jackson, the supreme court of Alabama (Seeley v. Curts,
In Martin v. Flaharty, supra, this court said that "a manual delivery of a deed is not an absolutely essential requisite to its validity," and that "the question of delivery is one of intention, and the rule is that a delivery is complete when there is an intention manifested on the part of the grantor to make the instrument his deed." The court cited Wheelright v.Wheelright,
In the leading case of Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154, the eminent Chief Justice Shaw said: "Whether, when a deed is executed, and not immediately delivered to the grantee, but handed to a stranger, to be delivered at a future time, it is to be considered as the deed of the grantor presently, or as an escrow, is often matter of some doubt; and it will generally depend rather on the words used and the purposes expressed, than upon the name which the parties give to the instrument. Where the future delivery is to depend upon the payment of money, or the performance of some other condition, it will be deemed an escrow. Where it is merely to await lapse of time, or the happening of some contingency, and not the performance of some condition, it will be deemed the grantor's deed presently. Still it will not take effect as a deed until the second delivery, but when thus delivered it will take effect, by relation, from the first delivery."
This doctrine was followed by the equally eminent Justice Sharswood, in Stephens v. Rinehart, 72 Pa. St. 434. Most of the modern decisions "hold that a deposit of the kind under consideration operates as a conveyance as of the time of the deposit, either as a transfer in praesenti subject to an implied life estate in the grantor (see Bury v. Young,
"The solution of the question of delivery or nondelivery in each case is based upon the intention of the grantor at the time of passing the deed to a third person." (Williams v. Kidd,
Mr. Davey, cashier of the bank, over objection was permitted[3] to testify that if Harvey L. Keene had demanded the return of the deeds his request would have been complied with. The court properly disregarded this testimony. It had no bearing upon the fact situation presented. (Loomis v. Loomis,
Mr. Keene deposited the deed with an express direction as to its delivery. As indicating his intention at that time he gave to his son the receipt for the envelope containing the Gray P. Keene deed. Nothing was said nor done by Harvey L. Keene to indicate that he retained in his mind any reservation with respect to the deed. The words "for safe keeping," considered with the context, have no material bearing. If Harvey L. Keene ever intended to attempt to recall the deed from the depositary no one but himself ever knew it.
When one has the mental capacity to alter his intention with respect to a deed thus deposited but dies without doing so, there is "but little reason for saying that his deed shall be inoperative, simply because, during life, he might have done that which he did not do. It is much more consonant with reason to determine the effect of the deed by the intention existing up to the time of death than to refuse to give it that effect because the intention might have changed." (From Newton v. Bealor,
After a careful study of the evidence we think the trial court was fully justified in finding that Harvey L. Keene, when he deposited the deed with the bank, did not intend to retain any control or dominion over it. The evidence is that he deposited the deed with the depositary with the full intention that it should there remain subject to be delivered to Gray P. Keene only upon his death and after the payment of his funeral expenses. If we regard the proof and omit surmise and conjecture this conclusion seems inevitable.
There is no evidence of any retention of control by the grantor. "All the circumstances tend to show a purpose on his part that there should be an immediate vesting of title in the grantee, the enjoyment alone being postponed until his death, and the intention of the grantor is recognized as the determining factor where the situation admits of doubt." (Bauman v.McManus,
Nor does the condition respecting the payment of the funeral[4] expenses change the situation. The weight of authority is that the deposit of a deed to be delivered on the performance of a condition after the death of the grantor, stands on the same footing as a deposit for delivery unconditionally after the grantor's death, so that the grantee may after the death of the grantor perform the condition and take the title as of the date when the deed was deposited. (Note to Jackson v. Jackson,supra, Ann. Cas. 1915C, 381, citing: Dettmer v. Behrens,
There is authority the other way. (Taft v. Taft,
The deeds executed by Harvey L. Keene to his children were not testamentary dispositions. It is certain that he never intended to make a will. It is sometimes difficult to determine, in view of the surrounding circumstances and the language employed, whether the instrument in question is a will or a deed. But it is[5] pretty well settled that "an instrument having otherwise the general formalities of a deed will be construed as a deed, whenever it appears that the maker intended to convey any estate or interest whatever, to vest upon the execution of the paper, though the absolute enjoyment of the estate passed is postponed until the death of the grantor." (Note to Ferris v. Neville,
The fact that the grantor reserves the possession, use, enjoyment or profits of the property during his life does not make the instrument a will. (Hall v. Burkham,
The grantor in this instance retained the enjoyment of the property by exacting rentals from the grantees. *414
Mr. Justice Lumpkin, in West v. Wright,
The determination of the district court that the instrument in question is a deed and that the grantor did deliver it in his lifetime subject only to the condition expressed upon the escrow envelope was correct. The judgment is affirmed.
Affirmed.
ASSOCIATE JUSTICES HOLLOWAY, GALEN and STARK concur.
MR. JUSTICE MATTHEWS, being disqualified, did not hear the argument and takes no part in the foregoing decision.
Rehearing denied June 28, 1926. *415
