White v. Reading

*353 HIGBEE, P. J. — This is an action by the plaintiff, a granddaughter of William Reading, deceased, against the widow and the two sons and two daughters of the deceased, to determine title to about, seven hundred acres of real estate lying in Pike and Ralls counties, and to partition the same. The court found the issues for the plaintiff, adjudging her to have an undivided one-fifth interest in said lands, from which the sons and daughters of the deceased appealed. *354 The first count of the petition avers that William Reading died on February —, 1920, at his residence in Curryville, Pike County, seized in fee of the said real estate; that he left surviving him his widow, Susan Reading, two sons and two daughters, the defendants George W. Reading, John T. Reading, Maggie Y. Shannon and Nancy Briggs, and the plaintiff, she being the daughter and only heir of a deceased daughter of said William Reading, and that the plaintiff and the appellants are the only descendants and heirs of the said Wih liam Reading, deceased, and that they each own an undivided one-fifth of said real estate in fee, subject to the life estate of Susan Reading. That the appellants each claim to own exclusively a certain portion of said real estate under deeds purporting to have been executed by William and Susan Reading on April 24, 1913, conveying certain' portions of said lands to each of said appellants, to the éxclusion of plaintiff’s undivided one-fifth interest therein. The petition describes the several tracts so claimed to have been conveyed to each of them, and avers that said deeds are invalid and do not in point of fact pass any title; that the infirmity and invalidity of said deeds can be more fully and effectually disclosed by extrinsic oral testimony and by matters dehors the record; that said deeds are recorded and are a cloud on plaintiff’s title. The prayer is that said deeds be cancelled and that the court declare that, plaintiff owns an undivided one-fifth interest in said lands, subject to the interest of Susan Reading as widow of William Reading, deceased. The second count is for partition and sale -of the land. The answer of the appellants admits the relationship of the plaintiff and defendants to William Reading; the execution and recording of the deeds, and denies all other averments. It avers that William Reading died testate, having executed his will and said four deeds contemporaneously as one transaction, on April 24, 1913. The will is pleaded in the answer, ’ and it is further aver *355 red that, by the terms of paragraph five thereof, the testator, by reference to said deeds, made them part and parcel of said will and did thereby intend to and did will and devise to the several grantees in said deeds respectively the'property in each of said deeds described. The answer specifies the several tracts so intended to be devised to each of the said four defendants, subject to the life estate of Susan Reading. It further avers that, the scrivener, in writing said deeds, instead of writing the reservation, “subject to a life estate in grantors herein,” as was intended, erroneously and by mistake wrote in each of said deeds, this clause: “This deed is made in lieu of will and is good and valid only after the death of the parties of the first part,” thinking and believing at the time that he was thereby reserving to the grantors a life estate in said lands; that the scrivener advised the grantors at the time that at their death the remainder would vest absolutely in the grantees, according to the purpose and intention of the grantors; that said deeds were delivered in the lifetime of William Reading with the intent and purpose aforesaid. The prayer is to reform the deeds and that the grantees shall take and be vested with a fee simple title in the property in each of said deeds respectively described, and for general relief. The answer to the second count is a general denial. Mr. Reading lived in the village of Curryville in Pike County, near his farm, which was partly in Pike and partly in Ralls County. There were no lawyers in the village, but Mr. Reading had long known the local banker, Mr. J. W. Hawkins. In April, 1913, he asked Mr. Hawkins if he could write deeds and draw a will. Hawkins thought he could. Mr. Reading told him he wanted deeds made to his sons and daughters and how he intended to have his will drawn, giving him all the details. Hawkins prepared the deeds and will and, a day or so thereafter, took them to Mr. Reading. Reading and his wife executed and acknowledged the deeds before Hawkins, who was a notary, and then, at the same time and place, Reading executed the will, which, after providing for the pay *356 ment of the testator’s debts, devised all his property to his wife during her life, and $2500 to the plaintiff, his granddaughter, payable after the death of the testator and his wife. The fifth clause reads: “I have made, in lieu of will, deeds to my lands, delivering said deeds to my children, as they are written, subject to provisions written in the body of said deeds, making them good and valid only after the death of the said William and Susan Reading, the parties of the first part thereto. However, any improvements the said party of the second part in said deeds mentioned, may desire to make at the expense of said party of the second part, is hereby allowed for their use and benefit, and each and everyone of the said party of the second part may cultivate, pasture,- and otherwise use such lands as in said deeds mentioned after the death of the testator, as long as tire said Susan Reading shall live, provided however, that each one of the said parties of the second part shall pay to said Susan Reading, their mother, such sums or rentals, annually, as she and they may agree upon, for her support, benefit, use, maintenance and comfort of life; so that the personal property found under this will, and at my death, shall not be lessened nor diminished, at the time of her death. ’ ’ The-plaintiff testified that her grandfather was ninety years of age at his death; that on the second day after the funeral, Mr. Hawkins carried her grandfather’s box containing his private papers from the bank to the house of her aunt, Mrs. Shannon, where Mr. Reading had lived. Hawkins asked for the key. Grandmother said it was in grandfather’s trousers’ pocket. They got the key and Hawkins unlocked the box. The appellants were present. Hawkins took out the envelope with the will and four deeds in. it and he read the will and the deeds. There were other papers in the box. Grandmother said -they were all deeds and, I think, some insurance policies, and possibly some tax receipts. I don’t know whether they were in the box or not. Mr. Hawkins handed the will and four deeds to my Uncle George. *357 The four deeds were* read in evidence. ' They were warranty deeds, each containing the clause above mentioned. The will was also read'in evidence, together with the probate thereof. On the part of the appellants, the evidence showed that about .the year 1891 Mr. Reading bought a tract of seventy acres adjoining the village of Curryville, paying therefor $2100, and had it deeded to his daughter, now deceased, the plaintiff’s mother. Shortly after the execution of the deeds and will the appellants each took possession of the tracts respectively conveyed and made improvements thereon, outbuildings, repairing, fences and the like, paying the taxes and rent to their father to the time of his death. Mr. Hawkins testified' that he wrote the deeds and will at Mr. Reading’s request and they were all executed at the same time; that when he wrote the clause in each deed, ‘ ‘ This deed is made in lieu of -will and is good and valid only after the death of the parties of the first part, ’ ’ he intended and thought that it reserved a life estate in the grantor, leaving the remainder interest over to the grantees in the deed. This was stricken out on the motion of the plaintiff. He further testified that, at the time Reading asked him to write the deeds he said his purpose and intention was to make deeds to his land and then to malee a will with regard to the remainder of his personal and other property. Defendants offered to show by the witness that Mr. Reading told him he wanted witness to write the deeds reserving a life estate in the property for himself and wife and the remainder interest he wanted to go to the respective parties named in each deed; that at the time he wrote that clause in the deeds • he thought he was simply reserving a life estate in the grantors and that it was a mistake on his part, and not Mr. Reading’s mistake, which caused him to write the deeds that way, and that he told Mr. Reading that was the effect of this clause in the deeds. These offers were excluded by the court. Witness further testified that after the deeds and will. *358 were executed, Mr. Reading turned them over to him, saying: “I want you to take them and keep them. I put these in your custody for fear I forget to hand them to the children myself; they are in your care and keeping and at my death I request that you give to each of the children the deeds so made to them.” I put them in the same envelope and sealed them up together and they were never unsealed until after his death. They were kept in the bank box in Curryville, the one he kept at the bank. He only kept a few old papers, possibly, a deed back there, possibly fifty or sixty years ago, and there was nothing else in that box now when I shut and locked it and handed it back; nothing in it but a $2000 time deposit and these deeds. I was president and cashier of that bank down to his death. That box was always there. He never put his hand in the box himself. He always brought the key and we unlocked it, myself or my son one, and handed him whatever paper he wanted, and put it back. I notified John Reading or George Reading after his death, they were the executors, that whenever they were ready I would take the box down to the house and open it there in the presence of all of them. This was his box. I put the will and deeds in it at his request. He kept the key all the time till his death. I kept the box at the bank for him like I would for any other customer. Reading had access to it; he always called for it when he wanted it; he never went in the vault in his life that I know of. His eyesight was' bad. Sometimes when we got the box for him he couldn’t see well enough to unlock it. “Q. And if he would come there and ask you, you would have given him that will and those four deeds, you would have given them to him? A. Well, I would Have to study on that, Mr. Hostetler; I would have to have witnesses that he came there and demanded it of me, because when he handed them to me, there were several present, and-both agreed that I should —he and his wife were present--and they both agreed that I should'keep them.” *359 ■ The facts in this case are practically conceded.. William Reading and his wife had been living.for some years with their daughter, Mrs. Shannon, in the village of Cnrryville. He owned about seven hundred acres of land lying near the village. He had, in the year 1891, bought a tract of seventy acres adjoining the village for a married daughter, the mother of plaintiff, before plaintiff was born. This mother had since died, leaving plaintiff her only child, who was twenty-six years of. age at the time of the trial. In April, 1913, when Mr. Reading was eighty years of age, he concluded^ to set his house in order and make a settlement of his property. There was no lawyer in the village, but he thought his old friend, the banker, Mr. Hawkins, could attend to his business, so he asked Mr. Hawkins if he could write a will and some deeds. Mr. Hawkins, like many another layman., felt equal to the task, and thereby hangs this tale. It is quite evident that Mr. Reading desired t.o give the plaintiff $2500, payable after the death of himself and his wife, and" to parcel his land among his surviving sons and daughters, reserving, the land during the life of himself and wife. It is also evident that it was understood the part each of the four .children was to receive, and that they should severally take possession of his or her particular tract, paying rent therefor, with the right to make improvements, which should inure to each one’s benefit.- This is evidenced by paragraph five of the will, though obscurely expressed. It contemplated a quasi-ownership during the lifetime of the father and mother and complete ownership at their death. The deeds and the will were executed contemporaneously and placed in escrow with Mr. Hawkins, who put them in a sealed envelope and locked them in Mr. Reading’s box at the bank. They remained in this box until after the funeral, the seal of the envelope never having been broken. On the second day after the funeral, Mrs. White, the plaintiff, and her two uncles, went to the bank. At their request, Mr. Hawkins took the box from the vault and .they all went to the residence of Mrs. Shannon, where, after *360 getting Mr. Reading’s key, Hawkins opened the box, broke the seal of the envelope, took out the four deeds and the will and read them in the presence of the parties to this action. I. The circumstances considéred, can there be any reasonable doubt that the deeds taken by Mr. Hawkins out of this sealed envelope, in the presence of all the parties to this action, are the identical deeds executed contemporaneously with and referred to in the will? It is true that by their terms they are inoperative and testamentary, being valid only after the death of the grantors (Aldridge v. Aldridge, 202 Mo. 565; Goodale v. Evans, 263 Mo. 219; Terry v. Glover, 235 Mo. 545, (4); Coles v. Belford, 232 S. W. 728); but, being referred to, they are incorporated in and become operative as a part of the will itself. Ordinarily, contemporaneous instruments relating to the same transactions must be read together. [Realty Co. v. Geren, 185 Mo. App. 440, 459.] In Harvey v. Chouteau, 14 Mo. 587, 596, Ryland, J., quoting from Barnes v. Crowe, 1 Ves. Jr., 486, said: “In the case of Barnes v. Crowe above cited, Lord Commissioner Eyre said ‘the testator had inseparably annexed codicil to the will, not by wafer or wrapper, but by internal annexation.’- I cannot see why the reference to the olographic will in the case before us, mentioned in the codicil, is not as strong and as satisfactory as physical annexation. “In the case of Beal v. Cunningham, 3 B. Monroe, 390, the Court of Appeals of Kentucky decided, ‘that a codicil is a part of the will to which it is attached, or refers, and must be taken and construed together as one will&emdash;one testament.’ “Here then, is a very respectable authority, that ‘reference’ is'sufficient. I confess I see no good reason why it should not be. In cases like the present, the question of identity may sometimes arise. ‘Is this the will referred to?’ But this can always be settled by the *361 facts in proof. I am therefore free to declare that I can see no legitimate reason, why a properly attested codicil may not draw down to it, a previous made though unattested will, to which the codicil refers, upon its face, though not annexed hy wafers or any other'mode, physically. ’ ’ In Waldermeyer v. Loebig, 222 Mo. 540, 552, Gantt, J., said: “It is familiar law that where one deed or instrument refers to another, the instrument or deed referred to becomes thereby part and parcel of the former instrument. ’ ’ In Chambers v. McDaniel, 28 N. C. 226, the headnote reads: “If a testator in his will refers expressly to another paper, and the will is duly executed and attested, that paper, whether attested or not, makes part of the will; but the instrument referred to must be so described as to manifest distinctly what the paper is that is meant to be incorporated; and the reference must be to a paper already written, and not to one to be written subsequently to the date of the will.” In 40 Cyc. 1094, it is said: “8. If a properly executed will incorporates in itself by reference any document or paper not so executed, whether it be in form of a will or codicil, #or of a deed or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will. It is not essential that the paper referred to be itself a dispositive instrument. However, it is well settled that, in order that a paper may be incorporated in a will by reference, it must he referred to in the will as existing, and it must in fact be in existence at the time of the execution of the will. And the will must clearly and definitely describe the papers intended to he incorporated, so that no room for doúbt can exist as to what papers were meant. The burden of proving the identity of the paper alleged to be incorporated by *362 reference is upon the party claiming that it was so incorporated. While parol evidence is necessarily admissible to prove whether there is or is not in existence at the testator’s death any such instrument as is referred to in the will, and may be received to effect identification where the reference in the will is such as to make the paper referred to capable of identification, yet it is not admissible to show what paper was meant when the uncertainty and ambiguity as to the paper referred to is patent upon the face of the will.” See also Newton v. Seamen’s Friend Soc., 130 Mass. 91, 39 Am. Rep. 433; Shulsky v. Shulsky, 98 Kan. 69, 157 Pac. 407; Watson v. Hinson, 162 N. C. 72 (5); Fickle v. Snepp, 97 Ind. 289, 291; In re Shillaber, 74 Cal. 144; Mortgage Trust Co. v. Moore, 50 N. E. (Ind.) 72; Bryan’s Appeal, 77 Conn. 240, 68 L. R. A. 353 and annotations; 28 R. C. L. 112; 1 Woerner’s Am. Law of Administration (2 Ed.), sec. 222, p. 510. It was not necessary that the deeds should have been presented to the court and formally and expressly certified as probated. [Estate of Willey, 128 Cal. 1, 56 Pac. 550, 60 Pac. 471; 40 Cyc. 1228, c. (3).] The proof of the will sets up and establishes the paper referred to as a portion of the will itself, by force of the reference and the consequent incorporation. [St. John’s Parish v. Bostwick, 8 App. D. C. 452, cited in notes to Bryan’s Appeal, 68 L. R. A. col. 1, p. 361.] There cannot be the slightest doubt about the identity of these deeds. They were in existence at the time the will was executed. They were sealed up in the envelope with the will and kept there until the seal was broken after the testator’s death. Collectively, they conveyed the testator’s land to his children, subject to the identical, provision recited in the will. The will identified them. They were ear-marked. No other deeds have been found conveying any of the testator’s land. They are therefore to be regarded as a part of and read into the will. [Allen v. Maddock, 11 Moore’s P. C. C. *363 427; Fesler v. Simpson, 58 Ind. 83; Fickle v. Snepp, 97 Ind. 289, and other citations in notes to Bryan’s Appeal, 68 L. R. A. 373.] The additional facts that the testator put the grantees into possession of the several tracts described in the deeds and that the will provides that improvements made by each grantee will inure to his or her own benefit, and that such possession continued to the time of the testator’s death, point unerringly to a definite understanding of the property settlement so made by the testator and accepted by the appellants. Reading the deeds as parts of the will, it is clear therefore that they became operative on the probate thereof, and vested the titles accordingly in appellants as beneficiaries under the will. II. In view of this conclusion, other questions relative to the exclusion of evidence offered by appellants drop out of the case and need not be considered. The deeds being incorporated in the will were necessarily testamentary in their nature, hence not subject reformation. If they had not been referred to in the will, the evidence excluded tended to show that the deeds as drawn failed to express the grantor ’s purpose to reserve a life estate. [Corrigan v. Tiernay, 100 Mo. 276, 281; Bramhall v. Bramhall, 216 S. W. (Mo.) 766, 769; Williamson v. Brown, 195 Mo. 313, 331; Brown v. Tuscoff, 235 Mo. 449.] In that case they would not have been mere gratuities. There was a meritorious consideration. They were part and parcel of a property settlement. While a court of equity will not undertake to enforce a mere gratuity, yet where there is a meritorious consideration a court of equity will take cognizance of the mistake and correct it. [Partridge v. Partridge, 220 Mo. 321, 325.] For the reasons stated in paragraph one of this opinion, the judgment is reversed and the cause remanded, with directions to enter judgment investing each of *364 the appellants with title in fee to the tracts severally devised to each of them as .described in their respective deeds', subject to the life estate of Susan Reading. All concur.