Tillman v. City of Carthage

*83 DAVID El. BLAIR, J. This case comes to Court in Banc from Division One, wherein the judges were divided in opinion. The opinion of one of the commissioners of that division was thereafter adopted as the opinion of this court. Subsequently a motion for rehearing was sustained and, after reargument, the opinion of the commissioner was rejected. The case is a statutory proceeding to determine title to certain lands in the city of Carthage. The lands in question are part of the estate of E. T. McCune, who died intestate prior to January, 1900. Lizzie A. McCune, his widow, and his daughter, the appellant in this case, were the only heirs. In January, 1900, they partitioned the land by exchange of quitclaim deeds. The real estate here involved is the portion thus acquired by Mrs. Mc-Gune and is of large value. The McCunes had one child, a son, who predeceased his father. Hie became a physician, and was associated in his practice at Carthage with one Dr. Brooks, who had devoted a fund to the establishment of a hospital in that city. After the death of her husband, (Mrs. McCune determined to establish a foundation ¡for a hospital in Carthage to the memory of her deceased son. To this end and on. May 18, 1900, she executed a will, and on May 12, 1903, added a codicil, devoting her entire estate to that- purpose, and from time to time thereafter expended thirty to forty thousand dollars in aid of the erection of the hospital by the Carthage Hospital Association, of which Samuel McReynolds was president and J. E. Lang secretary. It'is the contention of appellant that at the suggestion of the offcers of said hospital association Mrs. McCune executed deeds to her property to be delivered to the city of Carthage at her death. The effect of such deeds will be discussed later. She executed four deeds. These were sealed in an envelope by Mrs. McCune and she wrote upon the outside thereof the following directions: “This envelope contains four warranty deeds, and *84 the same with enclosures, is hereby delivered to J. E: Lang.for the purpose of safely keeping' the same; and upon my demise he is to deliver each of the enclosed deeds to the grantee named therein, to-wit, the city of Carthag’e, Mo. In witness whereof, I have hereunto set my hand, on this second day of November, 1914. Lizzie A. McCune.” Notwithstanding the delivery of such envelope containing the deeds mentioned in the endorsement thereon, on September 19, 1919, Mrs. McCune executed and delivered to appellant her quitclaim deeds, conveying to her the lands involved in this suit, being the same lands described in the deeds enclosed in the envelope delivered to Mr. Lang. She thereupon gave to Mrs. Tillman, the appellant, an order upon Mr. Lang for all her deeds, papers and money in his possession. He had previously been her banker and agent. He turned over to appellant everything in his possession, except the envelope containing the deeds above referred to. This he retained and refused to deliver to appellant, on the ground that he held it and its enclosures for the city of Carthage to be delivered to said city upon the death of Mrs. McCune. On May. 18, 1900, Mrs. McCune had executed a will, by which she devised the city of Carthage practically the whole of her large estate, consisting principally of the lands involved here, except certain benefactions, including a provision for appellant should she be left a widow without means of -support, in trust for the erection and maintenance of a public hospital in said city, to be under the general direction and control of said city and to be named the McCune Hospital. ■ On May 12, 1903', Mrs. McCune added a codicil to her will, which provided “that when said hospital is built that it bear the inscripr tion: ‘ To the memory of Dr. T. E. McCune, son of E'. T. and Lizzie A. McCune’ ” and that if she should direct said hospital, or a wing of it to be built in her lifetime, then a blank slab of marble should be located in the building upon, which the inscription should be carved áfter *85 her death. Thereafter the erection of the hospital was begun and the same was completed' in 1905, thirty or forty thousand dollars of the cost thereof being contributed by Mrs. MoGune, A blank slab was placed in the structure as contemplated by the terms of the codicil. Both Lang and McReynolds, the latter being a member of the law firm of McReynolds & McReynolds, who represented the defendants at the trial, were permitted to testify, against the objection of plaintiff, in substance that the four deeds in evidence were deposited with Lang for delivery to the city after the death of the grantor, because Mrs. McCune insisted that she desired to keep secret the fact of the execution and did not,, therefore, wish to permit the city to have them recorded or otherwise control them. Said deeds were warranty deeds in ordinary form. In one of them, which covered part of the Jasper County lands, the following clause was inserted : “This deed is made for the purpose of confirming my intentions and purposes with respect to the above described land as said intentions and purposes are set forth in my last will and testament of date May 18, 1900, it being my desire that the fee simple title shall be vested in the party of the second part for hospital purposes as expressed and provided in said will and the codicil thereto made and executed by me on May 12, 1903, and this deed is but a re-affirmation of my original, intent and purpose in placing the title to said property in the party of the second part for the uses and purposes- so desired by me.” In the second deed covering the remaining Jasper County lands the following clause appears : “The above lands are hereby conveyed for the purpose of confirming my intentions and purposes as stipulated and set forth in my last will and testament of date May 18, 1900, it being my desire that the fee simple title shall be vested in the party of the second part, in trust for hospital purposes as set forth, expressed and *86 provided in said last will and the codicil thereto made and executed by me on May 12, 1903. This conveyance of the above described land is also made subject to the provisions and trust expressed in my said last will and testament and codicil thereto appended,, to which instruments reference is made for more definite instructions as to the nature and extent of said trust provisions which are limited and restricted to the use of the persons therein named and only to the extent and upon the conditions therein expressed.” At the close of the trial the plaintiff asked the following declarations of law, which were given: “1. The court declares the law to be that under the evidence in this case the instruments offered in evidence prove that the trust created thereby is a charitable trust and the court excludes all parol testimony attempting to add to or take from or in anywise explain any of the provisions or purposes of said trust or of its creation, and that all the purposes and provisions of said trust must be found and contained in the written instruments creating same. “2. The court declares the law to be that the directions set forth on the back of the envelope offered in evidence as to the delivery of the deeds is unambiguous and speaks for itself, and cannot be enlarged or explained or in any wise affected as to the terms of the delivery by parol testimony. “3. The court declares that under the statutes an estate in remainder cannot be created by parol, and a life estate cannot be reserved by parol, but such estates must be expressly reserved and created or must be necessarily implied from the terms of the grant alone. “4 The court declares that the ‘Carthage Hospital Association’ has no interest, legal or equitable, as beneficiary or otherwise, under the deed, will and codicils read in evidence, but that the beneficiary named in those instruments constitutes an indefinite class and portion of the residents and citizens of Carthage as its citizen *87 ship may change from time to time, and ¿specially constituting those who are ‘‘ unfortunate and afflicted.’ ” The trial court refused to give instruction numbered 5 requested by the appellant, which was as follows: “5. The court declares the law to be that the will and codicils referred to in the warranty deeds offered in evidence by the. defendants are a part and parcel of said warranty deeds, and that in construing said warranty deeds, the court must read said will and codicils into the same as if actually contained therein, and from the said will, codicils and deeds, the court declares the law to be that they are testamentary in character and the said warranty deeds passed no title as to any of the defendants.” The trial court then ruled as follows: “Now at the time of the decision after the oral arguments and briefs have been furnished the court, the court rules that all the oral testimony which was introduced on behalf of the defendants and admitted by the court, is admitted for the sole purpose of aiding the court in determining whether or not Lizzie A. McCune intended to and did deliver the four deeds dated November 2, 1914, to J. E. Lang; to hold said deeds for the city of Carthage as grantee therein, with the intention on the part of Mrs. McCune to irrevocably divest herself of all control over said deeds, and for no other purpose.” The trial court made a finding of facts from which we quote the following: “The court further finds that it was the intention of said Lizzie A. McCune in so causing said deeds to be deposited with J. E. Lang to separate herself from all dominion and control over the instruments, and to permanently part with the possession thereof, and that it was the intention of said Lizzie A. McCune to presently pass the remainder in fee simple, in trust, in and to the lands described in said deeds to the said city of Carthage, subject to the life estate reserved in her by operation of law. ‘ ‘ The court further finds that Lizzie A. McCune, hav *88 ing already executed a testamentary disposition of said land described, by terms of ber will and tbe two codicils thereto, did by terms of the deeds delivered to J. E. Lang, intend to convey a present fixed right of future enjoyment to the city of Carthage, for the uses and purposes set out and defined in said deeds and said will and codicils thereto; that it was the intention to effectuate her purposes by a present conveyance in lieu of the testamentary disposition provided for in said will and the codicils thereto. “The court further finds that the references to said will and the codicils thereto were for the purposes of defining the terms of the trust imposed upon the conveyance to the city of Carthage, and the duties and the benefits arising under said trust, and not for the purpose of in any way fixing a testamentary disposition of said property. “The court further finds that-the delivery of said deeds to J. E. Lang, under the evidence was effectual to pass an estate) in fee simple in trust, to the city of Carthage, subject, however, to the rights of said Lizzie A. McCune to enjoy the possession, use, rents and profits arising from said land for and during' her natural life. “The court further finds that on the 19th day of September, 1919, the said Lizzie A.. ¡McCune, being still entitled to the occupation, use, rents and profits arising from said lands, during her lifetime, made, executed to the plaintiff, Su|san J. Tillman, a deed of quitclaim], whereby her life estate in and to said -lands passed to the plaintiff, Susan J. Tillman. “The court further finds that said Lizzie A. McCune is living and is the age of eighty years; that the plaintiff, Susan J. Tillman, is the owner of an estate in said lands for and during the natural life of said Lizzie A. McCune, and that the remainder in fee simple in and to all of said lands is vested in the city of Carthage, in trust for the purposes described in said deeds, will and codicils thereto. *89 "It is therefore ordered, adjudged and decreed by the court that the plaintiff, Susan J. Tillman, is the owner of an estate for the life of Lizzie A. McCune in and to the lands herein described to-wit: . . . "That the defendant J. Ei. Lang has no right, title or interest in and to said lands whatever, and that the defendant Carthage Hospital Association has no right, title or interest in and to said lands whatever, and that the defendant the city of Carthage is seized of an estate in fee simple in remainder, in trust, in and to all of said lands, subject to the life estate so held by Susan ,.. Tillman for the life of said Lizzie A. McCune.” The main questions for determination are whether the deeds on their faces are testamentary in character and, if not testamentary on their faces, whether they are in fact testamentary for want of delivery. Each of the two deeds involved here is an ordinary warranty deed, with the exception of a single paragraph in each refering to the provisions of the will of Mrs. McCune, dated May 18, 1900-, and codicil thereto of May 12, 1903. We have hereinbefore quoted those paragraphs. It is the contention of appellant that these paragaaphs make the deeds testamentary on their faces and that they, therefore, passed no title whatever to the city of Carthage. The deeds do not by reference incorporate therein the entire will and codicil. The reference draws into the deeds only such parts of the will and codicil as define the purpose and intent of the grantor in the deeds (the testator in said will) with respect to vesting in the grantee the title in remainder in trust for hospital purposes. It is competent for a grantor to bring into a deed or other instrument by reference and as a part of such instrument itself, tie whole or any designated part of another instrument. When such other instrument or designated part thereof is brought in by reference, the deed must be construed in connection therewith. [Allen v. De Groodt, 105 Mo. 442, l. c. 451; White v. Reading, 239 S. W. 90; Ray v. Walker, 240 S. W. 187.] *90 “Writings which are made a part of the contract by annexation or reference will be so construed; but where the reference to another writing is made for a particular and specified purpose, such other writing becomes a part of the contract for such specified purpose only. Reference is sufficient without actual annexation.” [13 C. J. 530, sec. 188..] The provisions of the will of May 18, 1900, and .the codicil of May 12, 1903, referred to in each of the deeds, were as follows: “Clause Second:- I give, devise and bequeath all of the rest, residue and remainder of my estate, both real, personal and mixed, including all the rest, residue and remainder of the hereinbefore described real and personal estate after the death of my said sister, Mattie J. Duff, and after the death or re-marriage of my said daughter, Susan J. Tillman, to the City of Carthage, in the County of Jasper, in the State of Missouri, to be held by said city in trust, to be used for the erection and maintenance of a public hospital in said city, to be under the general direction and control of said city of Carthag’e, to be named and to be ever known as the McCune Hospital, and said city is fully authorized and empowered, to sell and to make any disposition of the real estate herein devised to said city that said city may deem best. It is my desire and I direct that the said city of Carthage shall adopt a suitable plan whereby such hospital may be successfully operated and maintained and my wishes be carried out, and that it shall provide for and establish all necessary boards and committees for the establishment and maintenance of a permanent hospital and to make all needful and necessary regulations in connection therewith. “Clause Third: I hereby authorize the said City of Carthage to use the property and funds devised and bequeathed to it by this instrument in connection with the funds bequeathed to- it by Dr. Robert F. Brooks in the establishment of a public hospital and in that *91 event said hospital is to he named the McGune Hospital or the McCune-Brooks Hospital. And if a public hospital shall have been erected by said city of Carthage before my death, then and in that event, the property and funds devised and bequeathed to said city by this instrument may be by said city used in enlarging, furnishing and maintaining said hospital, provided, that said hospital be named the McCune Hospital or the ¡McCuneBrooks Hospital.” [Will dated May 18, 1900-.] “Third: I have in my last will and testament made provisions for the establishment and maintenance of a hospital in the city of Carthage, Jasper County, Missouri for the double purpose of “1st. Mitigating the wants and pains of the unfortunate and afflicted. “2nd. For the purpose of commemorating the name of our departed son, who had chosen and qualified himself for a life work in that profession which has for its mission the alleviation of the sick, suffering and afflicted, and to the end that his name, of which he was so proud, as well as that the name of his beloved father might be perpetuated in a lasting and suitable monument. I make the bequest for the establishment and maintenance of said hospital and I will and direct further that when said hospital is built that it bear the inscription: ‘To the memory of Dr. T. E. McCune, son of E. T. and Lizzie A. McCune.’ “If, however, I should direct that said hospital or a wing of it should be built in my lifetime, then and in that event, I will through my trusted agents, arrange that a blank slab of marble or granite be suitably located in said building upon which the above inscription shall be carved after my death. “The provisions of this codicil to my last will and testament are not intended to be in violation of or in’ conflict with the conditional provisions of my last will and testament with respect to my daughter as fully set forth in said will, it being my desire that if the condi *92 tions therein set forth, should arise then and in that event, she is to receive the bequests as set forth and conditioned in my said last will and testament.” [Codicil of May 12, 1903.] The Jasper County lands were conveyed in two separate deeds, and the Barton County and Lawrence County lands in separate deeds respectively. The reference to the will and codicil incorporated the provisions- thereof above set out in said deeds as fully as if they had been written into such deeds in the very words in which they are written into said will and codicil. There is nothing in the deeds to show that title did not immediately pass, subject to the conditions therein contained under the clauses referring to the will and codicil. Thus understood, the deeds conveyed to the city of Carthage a present, fixed right of future enjoyment for the uses and purposes set out in the will and codicil, which enjoyment was postponed until and subject to the life estate of Mrs. ÍMcGune, Icreated and reserved in her by operation of law and later transferred by quitclaim deed to' the appellant. This conclusion is supported by the reasoning in numerous Missouri cases, including the following: Dozier v. Toalson, 180 Mo. 546; O’Day v. Meadows, 194 Mo. 588; Sims v. Brown, 252 Mo. 58; Priest v. McFarland, 262 Mo. 229; Dawson v. Taylor, 214 S. W. 852; Hohenstreet v. Segelhorst, 227 S. W. 80; Wimpey v. Ledford, 177 S. W. 302. But it is'.contended that the deeds were not delivered to the city and-that they are therefore testamentary in fact and ineffectual to convey the title from the grantor to the grantee named therein. When the four deeds were executed they were .placed in an envelope and the same was sealed and instructions endorsed on such envelope. We have already quoted' these instructions. The envelope was then delivered to Mr. J. E. Lang, who was instructed by the endorsement to deliver it after the death of the grantor to the grantee named in each of the deeds', which ’deeds were intrusted to him for that purpose and *93 for safe keeping,. Witnesses were permitted to testify to statements made by Mrs. McCune at the time which tended to show the irrevocable character of her act in delivering the deeds to Lang. Complaint of the admission of snch evidence will be noticed later. Snch testimony tended to show that Mrs. McCnne did not want to pnt the deeds on record or have it become known that she had deeded the lánds to the city of Carthage until after her death, and yet that she wanted the provision for the hospital safeguarded in such a way as to assure that nothing — not even her own act — would thereafter prevent her desires being carried out. The testimony of Mr. McEeynolds and Mr. Lang, beyond all doubt, 'established the fact that Mrs. McCune parted with all control over the deeds. Indeed, such testimony was unnecessary to show the nature and character of the delivery. The language of the endorsement itself was sufficient for that purpose. [Standiford v. Standiford, 97 Mo. 231; Williams v. Latham, 113 Mo. 165; Cook v. Newby, 213 Mo. 471; Schooler v. Schooler, 258 Mo. 83; Marshall v. Ha rtz felt, 98 Mo. App. 178; Meredith v. Meredith, 229 S. W. 179; Crites v. Crites, 225 S. W. 990.] The/ deeds are absolute conveyances, subject, bñ their faces, only to the charitable trust created therein. There is nothing in the endorsement on the envelope enclosing the deeds which in any wise limits the character of the deeds as absolute conveyances as éxpressed on their faces. : The very fact that Mrs. McCuine had previously made the identical provision in her will and codicil relative to the disposition of the lands which was made as a trust provision in the deeds argues most forcefully against the motion that she afterwards made another testamentary provision and is persuasive, if not practically conclusive, evidence that she meant, by the execution of the deeds and their delivery to Mr.'Lang, to do the very thing Mr. McEeynolds testified she told him she wanted to do, to-wit,' that she desired to keep the execu *94 tion and the delivery of the deeds a secret, for fear it would make trouble for her, which she desired to avoid, and in effect that she feared the courts might set the will aside and defeat her plan to build a memorial to her son, as provided in her will and codicil. In this connection it is significant to note, as appears from the record before us, that at the date of the trial Mrs. IMciGune was still living and, in fact, was at the time in her usual health and within a half mile of the court house and, for aught which appears in the record, was able to appear and testify, although unable to walk because of her great age and physical infirmities. In any event, the appellant could have had .the benefit of her testimony by deposition if she could not have been brought to the court room. Yet she did not avail herself of Mrs. McCune’s testimony. The court had the right to assume such testimony would not have been helpful to the contention of the appellant. [Dunkeson v. Williams, 242 S. W. l. c. 658, citing Bryant v. Lazarus, 235 Mo. 606-612, and Kame v. Railroad, 254 Mo. 175-194.] The cases relied upon by appellant can be distinguished. In Murphy v. Gabbert, 166 Mo. 596, the deed contained the provision that grantor '“relinquishes her entire right at her death; then this deed is to immediately come into effect, but not till then.” The deed showed on its face that it did not take effect in praesenti, but only upon the death of the grantor. In Aldridge v. Aldridge, 202 Mo. 565, the deed provided that if the grantor outlived the life tenant, the land should revert to the grantor, instead of going to the remainderman. In Griffin v. McIntosh, 176 Mo. 392, the deed on its face declared it was to be held by the grantor until his death and then to be delivered to the grantee. As a matter of fact, it was held by the grantor until two weeks before his death and then placed in grantee’s hands to take care of.” In Givens v. Ott, 222 Mo. 395, a deed providing that *95 it should not take effect until the death of the grantors was held insufficient. In Terry v. Glover, 235 Mo. 544, the deed recited that it was not to go into effect until grantor’s death. It was also held that the deed was not delivered because the grantor did not part with its possession. In Goodale v. Evans, 263 Mo. 219, the habend/um clause recited that the grantee'Was “to have and to hold the premises . . . from and after the death” of the grantor. This clause showed no present interest was conveyed and made the deed testamentary in character. These cases cast no doubt upon the correctness of the trial court’s conclusion under the evidence in this case that the deeds were absolute conveyances on their faces, subject to the specified conditions and that the delivery was complete when they were handed to Lang with irrevocable directions to him to keep them safely and upon grantor’s death to deliver them to the grantee named therein, the city of Carthage. There is nothing in the previous relations existing between Mrs. McCune and Mr. Lang which is sufficient to change the absolute character of the delivery. While he had been her banker and confidential agent, he was a stranger to the transaction involved in the delivery to him of the deeds. [Meredith v. Meredith, supra.] He was not acting as Mrs. McCune’s agent in receiving and holding the deeds. ■ It is insisted that the court erred in permitting Mr. McReynolds and Mr. Lang to testify concerningi conversations had with Mrs. McCune at the time that the 1903 codicil was drawn and at the time and immediately before the four deeds were delivered to Mr. Lang. The trial court expressly limited all the oral testimony offered by defendants to the sole purpose of aiding in determining whether or not Lizzie A. McCune intended to and did deliver the four deeds to Lang to hold said deeds for the city of Carthage with the intention to irrevocably divest herself of all control over said deeds. The court there *96 fore did not consider any oral testimony concerning conversations with Mrs. McCnne relative to the 1903 codicil or other oral testimony in the ease, except as it related to the retention of control over the deeds after their delivery to Lang. The question of Mr. McReynolds’s relation to Mrs. McCnne as her attorney in the transaction was an issue of fact upon which the trial court heard evidence. The trial judge evidently found McReynolds was not acting as her attorney and considered his testimony. His finding on this question, supported as it is by substantial evidence, is conclusive. The trial court reached a conclusion unassailable under the evidence, in the light of our previous decisions, and the judgment should be and it is affirmed. Graves, Eigbee and James T. Blair, JJ., concur; Woodson, G<. J., and Walker and Elder, JJ., dissent.