Dexter v. Witte

Kerwin, J. It is established without dispute that the deed in question was never delivered, hence never had vitality as a deed. No error was committed in allowing the amendment to the complaint setting up nondelivery of the deed. The main contention of the appellants is that, although the deed was void for want of delivery, it was valid as a will, and that they should have been permitted to amend their answer so as to set up the fact that the instrument was a will, and be protected by the judgment in their right to have the instrument probated. If the instrument was not testamentary in character, but in fact a deed, the denial of •appellants’ motion to amend becomes immaterial and could under no circumstances work prejudice. We are cited to a great many authorities by counsel on both sides and have examined them with care. Some of those cited by appellants are where the instruments were upon their face testamentary and showed that no interest was to pass until after the death of the maker, while in others the main point of controversy was whether any interest did in fact vest before death of the grantor, and whether a deed could take effect m futuro. There seems to be much apparent, if not real, confusion in the authorities as to when certain instruments are deeds or wills. In Sharp v. Hall, 86 Ala. 110, 112, 5 South. 497, the court says: “There are few, if any, questions less clearly defined in the law books than an intelligible, uniform test by which to determine when a given paper is a deed and when it is a will. Deeds, once executed, are irrevocable, unless such power is reserved in the instrument. Wills are always revocable so long as the testator lives and retains testamentary capacity.” In all the cases which we have examined the instruments held to be wills bore upon their face, or together with writ [80] ings which were part of them, some evidence of testamentary character, and the sufficiency of such evidence coupled with the formality of execution so as to comply with statutory requirements for the execution of wills were the controverted questions. Sharp v. Hall, supra; Wareham v. Sellers, 9 Grill & J. 98; Smith v. Holden, 58 Kan. 535, 50 Pac. 447; Burlington University v. Barrett, 22 Iowa, 60; Estate of Longer, 108 Iowa, 34, 78 N. W. 834; McCourt v. Peppard, 126 Wis. 326, 105 N. W. 809; Lautenshlager v. Lautenshlager, 80 Mich. 285, 45 N. W. 147; Sartor v. Sartor, 39 Miss. 760; Nichols v. Chandler, 55 Ga. 369; Lauck v. Logan, 45 W. Va. 251, 31 S. E. 986; Bromley v. Mitchell, 155 Mass. 509, 30 N. E. 83; Estate of Kisecker, 190 Pa. St. 476, 42 Atl. 886. The foregoing oases show the character of the instruments which have been held to be testamentary and entitled to probate as wills. We have been cited to no case, and' have found none, where a deed plain and unambiguous on its face conveying a present interest and unexplained by contemporaneous writing of a testamentary character was held to-be a will, while on the other hand we find authority directly in point to the contrary. Clay v. Layton, 134 Mich. 317, 96 N. W. 458; Dodson v. Dodson, 142 Mich. 586, 105 N. W. 1110; Estate of Skerrett, 67 Cal. 585, 8 Pac. 181. We-have also examined a great number of cases which bear more- or less upon the question as corroborative of the foregoing, some of which we call attention to. Mann v. Ex’rs of Mann, 1 Johns. Ch. 231; Cates v. Cates, 135 Ind. 272, 34 N. E. 957; Wilson v. Carrico, 140 Ind. 533, 40 N. E. 50; White v. Hopkins, 80 Ga. 154, 4 S. E. 863; Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563; Shackelton v. Sebree, 86 Ill. 616; Wyman v. Brown, 50 Me. 139; Patterson v. English, 71 Pa. St. 454; Turner v. Scott, 51 Pa. St. 126; Nichols v. Emery, 109 Cal. 323, 41 Pac. 1089; Estate of Ogle, 97 Wis. 56, 72 N. W. 389; Whitmore v. Hay, 85 Wis. 240, 55 N. W. 708. Clay v. Layton, supra, is directly in point. There, as here,. [81] the instrument was in form a deed conveying a. present interest and containing on its face nothing of a testamentary character. The malcer retained control of the instrument during his life, but left instructions for delivery to the grantee named after his death, and the instrument was held a deed and not a will. In discussing the subject in Clay v. Layton, supra, the court lays down the principles governing such cases, namely: “(1) Those in which the testamentary intent is clearly deducible from the writing. “(2) Those where the instrument is ambiguous, or of doubtful meaning. “(3) Those where there is nothing to indicate a testamentary intent, but, on the contrary, the instrument is in terms plainly a deed.” The court held that in the first class there was no difficulty in holding the instrument a will; in the second that it might be interpreted in the light of the circumstances; and in the third that the -instrument could not be contradicted and shown to be a will. The deceased left in a drawer which he controlled up to the time of his death a written instrument in the form of a deed with instructions to deliver it in connection with other papers upon his death, and stating that he left the matters in that form to avoid probate. The court said: “These papers plainly provide in terms for a present transfer of property, and to show that a different intention existed would be to contradict them, and this cannot be done. We have examined many authorities where the question involved was whether papers in form deeds were testamentary in character, and it is a significant fact that not one has been found which supports the complainant’s contention. In nearly every instance the question is solved from the writing itself, or, if not, the construction adopted is not contradictory to its provisions which are open to two interpretations. We have had difficulty in finding a‘ease in which the exact point before us is raised, but it seems manifest that the same rule [82] that forbids tbe contradiction, of an established will should forbid the contradiction of the same instrument as a means of establishing it as a will, when its terms plainly show it to be a deed conveying a present interest. It is only when the writing is of doubtful import that interpretation by the aid of extrinsic evidence becomes necessary, and in such case interpretation, not contradiction, is permissible.” We think the doctrine laid down in the foregoing case is sound in principle and in harmony with the great weight of authority. We hold that the deed in question could not be probated as a will; hence the judgment below was right and must be affirmed. By the Court. — The judgment is affirmed.