Donnelly v. Rafferty

Opinion by Mr. Justice Mitchell, Notwithstanding the numerous assignments of error and the earnest and exhaustive argument of appellant’s counsel upon them, this case depends wholly on the correctness of the master’s finding of fact that the deed of February 6, was to be executed by all the devisees in remainder under James Rafferty’s will before it should become operative as to any, and that neither it nor the later deed of February 17, was ever delivered. An examination of the evidence satisfies us that the master’s finding was correct, and that no other conclusion could be sustained. James Rafferty devised all his estate to his two sisters, the appellants, for life, with remainders to certain nieces and a nephew in fee. He was of sound mind as found by the master, and had the unquestionable right to do as he pleased with his own. But the appellants chose to be dissatisfied and threatened to contest the will. There was no ground for a contest as even their own counsel advised them, but nevertheless they proceeded to use the threat of one as a club to extort a release from the remainder men of the estates that the testator had given them. This was so far successful that the deed now in controversy was prepared, and was executed by some of the parties. It was a voluntary conveyance of an undoubted legal estate, for which there was no consideration even suggested, except the avoidance of a family quarrel and perhaps scandal, by a contest over the will. This consequence would be just as certain and just as disagreeable if made against one remainder man as against all, and Rose Ann Rafferty, one of the appellants, testified distinctly that she did not intend to relinquish the contest unless all should give up their shares. The circumstances therefore raise a strong presumption that as a family arrangement all were to join in it or it would fall through, for unless all joined, the whole object would be lost, and the whole consideration to the remainder men would fail. That the actual agreement of the parties was in accordance with the presumption we have the positive testimony of Charles Donnelly, one of the four persons present at the Sunday afternoon meeting at which the arrangement was started, and the equally significant testimony of Rose Ann Rafferty, already quoted. The testimony of Alice Donnelly, and of Gilbert Rafferty and his [593] wife is to the same effect. In accordance with this intent, the appellants and Bernard Rafferty, father of the complainants and acting for them, went to counsel, and under their direction he prepared two deeds, one for the remainder men in Allegheny county to sign and the other for those residing elsewhere, thus including all as grantors. Some of the parties refused to sign these deeds, and the later deed of February 17 was then prepared by the same counsel, with a view to obviate certain specified objections. This deed also named all the remainder men as grantors. All the acts of the parties thus concur in pointing to a joint conveyance by all the parties in remainder. Against this convincing evidence there is no testimony except that of the appellants and Nelly Mowry that no such condition was made by them or in their presence. The counsel for appellants who have presented everything that learning and diligence could suggest, rely on the legal principle that a grantor cannot set up any intent or condition different from that appearing on the face of the deed unless declared at the time of execution, citing Blight v. Schenck, 10 Pa. 285, and Stinger v. Com., 26 Pa. 422. But the difference is obvious. Those were cases of complete deeds to whose effectiveness nothing was wanting but delivery, and a delivery made by the grantor to a third person for the grantee. It is further argued for appellants that a mere expectation by the plaintiffs that the other remainder men would join in the deed, would not deprive it of its force as a conveyance by those who did sign, and many cases are cited to this effect. This may be freely conceded, but as already said the evidence here is convincing that it was not a mere expectation but an essential part of the agreement that all should join. Though the estates of the grantors were several, the consideration for their conveyance was single, and without the joint action of all the consideration would fail as to each. There remains the question of delivery. Although the consideration for the conveyance under the family agreement, would not pass until all joined in the deed, yet any of the grantors might waive that requisite as to himself and make an effectual delivery of what would then become a voluntary conveyance. The evidence and the circumstances however do not sustain such construction of the action of complainants. The [594] deed of February 6, called for four principal grantors, besides the wife of one and the husband of another; the cotemporary deed called for the fifth grantor, Mrs. Willard and her husband, who lived in Chicago. The .family arrangement was made by Charles Donnelly on behalf of his wife, and Bernard Rafferty on behalf of his children, and it does not appear that at any time there was a general meeting of all the parties. Those who came into the agreement did so by acquiescence in what Donnelly and Bernard Rafferty had done in their behalf. It is manifest therefore that the execution of the deeds was not to be the simultaneous act of the parties assembled for that purpose, but that each was to execute it separately though in accordance with the general agreement, and this was the course that was actually pursued. The deed was given by the counsel who prepared it, to a notary, who obtained the signatures and acknowledgments of the complainants, and then returned it to the counsel from whom he had received it. So far there is an entire absence of evidence of the intent of any of the parties signing to dispense with the requirements of the agreement, and there is certainly no presumption that an instrument calling for execution by several parties, for a single consideration which will not be effectual to any unless all join, is meant to be delivered in its incomplete state when only partly signed. Delivery is the transfer of possession with intent to pass title. Here as already said the evidence fails to show any such intent. The principle is so elementary as not to need the citation of authority, but reference may be made to Overman v. Kerr, 17 Iowa, 485, as an instructive case on very analogous facts. But there is still another reason why the deed of February 6 cannot be considered as operative, and that is the practically undisputed evidence in regard to the preparation of the deed of February 17. The former had failed of its purpose and was an incomplete instrument. Alice Rafferty had refused to sign. Gilbert had drawn his pen through his signature, Mrs. Willard had not signed the cotemporary deed which was to be part of the same transaction, Charles Donnelly had stated explicitly that he and his wife would not be bound unless all signed, and Rose Ann Rafferty had said with equal positiveness that she would not give up her threatened contest of the will unless [595] she and her sister got all the shares. The deed was therefore not only incomplete on its face, but had utterly failed of its purpose, and the whole arrangement was in danger of falling through. But Bernard Rafferty was still desirous that his children should all agree to what he had done on their behalf, and he thought that with certain changes they, particularly Alice, would do so. He accordingly proposed to Mr. Buchanan, the attorney who had drawn the deed, to make a new one, but Buchanan refused until he had consulted appellants. He did so; under his advice they agreed, and he then prepared the deed of February 17, which as he testifies.included all the parties in remainder. The result of the evidence on this point, which is un contradicted in any way, leads' irresistibly to the conclusion reached by the learned master that the deed of February 6 was abandoned before delivery, as an abortive effort to carry out the family arrangement, and the deed of February 17 by consent of all parties, put in its place in the hope of its being more successful. The fact that it also failed of its object and was never delivered could not revive the prior deed which was functus officio. Objection is made by appellant that Nellie Mowry is not a party either complainant or respondent to the bill. It is not necessary that she should be. She was a devisee in remainder and one of the grantors who signed the deed of February 6, but has taken no part in the litigation. The result of it will not affect her in any way, and if she chooses to let the deed stand as a voluntary conveyance of her estate, the rights of the other parties are in no wise affected by such action on her part. Decree affirmed at the cost of appellants.