Sappingfield v. King

Mr. Justice Eakin delivered the opinion of the court. This case turns upon the questions whether the deed, at the time of its execution, was delivered as a deed to John Sapping-field, and whether it conveyed any estate or interest presently to the grantee. Plaintiff and her husband evidently sought to arrange for the disposition of their property after their death. The whole transaction clearly discloses this, and there was no undue advantage taken of plaintiff in what was done. She evidently understood the nature of the transaction. But it was evidently the intention of both plaintiff and her husband that neither of the instruments should be operative until after the death of the maker. It is evident that at that time both thought that plaintiff was liable to die first, and she wanted her husband to have the benefit of her property as long as he lived, and the will of the husband protected the plaintiff to the same extent. The indorsement on the envelope in which the papers were left at the bank was not directed by them or either of them, and plaintiff is not bound by it. Plaintiff and her husband had the same purpose in this transaction, viz., that their property at their death should go to their children equally, taking into consideration prior advances to some of them. The heirs of the one were the heirs of the other, and this form of disposing of the property seems to have been adopted as preferable to two wills, and evidently from the whole transaction it was intended that both instruments should be subject to recall. [106] 1. Delivery is a question of intention, and may be effected by any act or word manifesting an unequivocal intention to surrender the instrument so as to deprive the grantor of all authority over it or of the right of recalling it: Payne v. Hallgarth, 33 Or. 430, 437 (54 Pac. 162); White v. White, 34 Or. 141, 150 (50 Pac. 801, 55 Pac. 645); Swank v. Swank, 37 Or. 439 (61 Pac. 846). If the grantor does not evidence an intention to part presently and unconditionally with the deed, there-is no delivery: Walter v. Way. 170 Ill. 96 (48 N. E. 421); Pennington v. Pennington, 75 Mich. 600 (42 N. W. 985). There was evidently no intention that either jjlaintiff or her husband should part presentí)' with their property. Their purpose was one, viz., to protect each other in case of the death of one and the disposition of the property after the death of both, and that the title to plaintiff’s property should not be affected while she lived, but that, when she died, it should pass by the deed to her husband, and that there was no intention on the part of the-plaintiff or her husband that the possession of the deed should pass at once to the husband beyond the power of plaintiff to-recall it. 2. The form of the deed, however, renders it testamentary, and therefore revocable at any time, even though delivered. This is the effect of the clause which provides: “This deed is made with the full understanding and upon the condition that the same shall take effect from and after the death of the said grantor.” If the deed purported to convey or pass to the grantee a present interest in the property and the deed was delivered, then the deed was operative at once and beyond the recall of the-grantor, notwithstanding the reservation of a life estate; but, where the instrument does not pass any present interest to the grantee, its effect is testamentary, and not that of a conveyance. 3. In Turner v. Scott, 51 Pa. 126, it was held that the words in an indenture, “And this conveyance in no way to take effect until after the decease of the said John Scott the grantor,” limited the granting words to take effect only after the death [107] of the grantor, and they were necessarily revocable; and that “the doctrine of the cases is that, whatever the form of the instrument, if it vest no present interest, but only appoints what is to be done after the death of the maker, it is a testamentary instrument. It signifies nothing that the parties meant to make a deed instead of a will.” In Millican v. Millican, 24 Tex. 426, 442, it is held that “voluntary dispositions of property by deed, which did not operate, and were not intended to operate, a present transfer of the property out of the donor, or to vest a present interest in the donee, but were made to take effect only after the death of the donor, were testamentary,” and, if there is any doubt as to the intent of the grantor to ¡iass the title presently, the circumstances surrounding the transaction may be looked to to determine that matter, but not to dispute the plain tenor of the instrument: Evans v. Smith, 28 Ga. 98 (73 Am. Dec. 751); Gage v. Gage, 12 N. H. 371; McGee v. McCants (S. C.), 1 McCord, 517. Here the parties contemplated an arrangement for the disposition of their property after the death of both, and the provision of the deed above quoted, together with the fact of the instrument being left in the hands of the scrivener without any direction as to its disposition, indicates no intention to deliver, and by its terms it is testamentary and is therefore revocable. There are a few cases holding that such a deed is operative as such, and irrevocable even though it does not convey a present interest. Wilson v. Carrico, 140 Ind. 533 (40 N. E. 50: 49 Am. St. Rep. 213). construes such a deed as conveying an estate to commence in futuro; such an estate being expressly authorized by the Indiana statutes: Rev. St. Ind. 1881, § 2959. In Shackleton v. Sebree, 86 Ill. 616, 621, the conveyance is sustained as a deed on the theory of a covenant of the grantor to stand seized to the use of the grantee, and Abbott v. Holway, 72 Me. 307, is to the same effect. In Georgia the cases are very conflicting. Sperber v. Balster, 66 Ga. 317, holds such a deed conveys no present title and is testamentary, and in West v. Wright, 115 Ga. 277 (41 S. E. 602). the court holds to the contrary, although [108] there is a dissenting opinion on this one question. In Lauck v. Logan, 45 W. Va. 251 (31 S. E. 986), the opinion states the law to be that, “if the intention gathered from the whole paper is that no estate is to pass until the grantor’s death, it is a will and not a deed.” The deed in that case contained the words: “But it is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after the-said William Logan shall depart this life, and not sooner.” As to the rule just quoted the court then says, “Though seeming to me to be unreasonable, it is intrenched behind many decisions through many years, and we cannot repeal it,” and then proceeds to hold that the granting words must control, and the words of the deed above quoted reserve only a life estate in the grantor. In some of these cases the deeds were not executed with all the formality required for the execution of wills, and, if not valid as deeds, they were void for any purpose, and that was one of the controlling elements in upholding them as deeds. This is the case in Indiana, Illinois and Georgia. But the greater weight of the authorities hold that, in determining whether such an instrument is a deed or a will, the main question is: Did the maker intend to convey any estate or interest whatever to vest before his death and upon the execution of the paper, or, upon the other hand, did he intend that all the interest or estate should take effect only at his death? If the former, it is a deed; if the latter, it is testamentary and revocable. The language limiting the taking effect of the deed similar to that in the ease here and as quoted from Turner v. Scott, 51 Pa. 126, has been held in the following cases to convey no present interest, but rendered the instrument testamentary and therefore revocable: Gillham Sisters v. Mustin, 42 Ala. 365; Leaver v. Gauss, 62 Iowa, 314 (17 N. W. 522); Hazelton v. Reed, 46 Kan. 73 (26 Pac. 450: 26 Am. St. Kqp. 86); Bigley v. Souvey, 45 Mich. 370 (8 N. W. 98); Conrad v. Douglas, 59 Minn. 498 (61 N. W. 673); Cunningham v. Davis, 62 Miss. 366; Murphy v. Gabbert, 166 Mo. 596 (66 S. W. 536: 89 Am. St. Rep. 733) ; Pinkham v. Pinkham, 55 Neb. 729 (76 N. W. [109] 411); Turner v. Scott, 51 Pa. 126; Babb v. Harrison, 9 Rich. Eq. 111 (70 Am. Dec. 203); Armstrong v. Armstrong, 4 Baxt. 357; Carlton v. Cameron, 54 Tex. 72 (38 Am. Rep. 620). Also there is a note to Hazelton v. Reed, in 32 Central Law Journal, 512, by Jesse A. McDonald, and a leading article by W. W. Thornton, of Indiana, in 19 Central Law Journal, 47, commenting on the case of Leaver v. Gauss, to the same effect. And, if the deed is in fact testamentary, even though it be delivered, it is revocable. Such is the case of Turner v. Scott, 51 Pa. 126, where it was delivered and recorded: Pennington v. Pennington, 75 Mich. 600 (42 N. W. 985); Bigley v. Souvey, 45 Mich. 370 (8 N. W. 98); Conrad v. Douglas, 59 Minn. 498 (61 N. W. 673); Hannig v. Hannig (Tex. Civ. App.), 24 S. W. 695. And we hold that plaintiff had no intention to part with the control of the deed presently, and, further, that the deed was testamentary and therefore revocable. The decree of the lower court will therefore be affirmed. Affirmed. Decided 21 May, 1907.