Jones v. Caird

Timlin, J. (1) When a father executes and causes to be recorded in the register’s office a deed of his land to his infant child, brings this to the knowledge of the child, and the grant is beneficial to the infant, and the latter thereafter makes claim to the land under the deed, its acceptance is presumed and the delivery is complete. Whiting v. Hoglund, 127 Wis. 135, 106 N. W. 391; Cooper v. Jackson, 4 Wis. [387] 537; Cerney v. Pawlot, 66 Wis. 262, 28 N. W. 183; Northwestern Mut. L. Ins. Co. v. Wright, ante, p. 252, 139 N. W. 1078; Arrington v. Arrington, 122 Ala. 510, 26 South. 152; Edlich v. Gminder, 65 App. Div. 496, 72 N. Y. Supp. 885; Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041, 33 Am. St. Rep. 326; Tobin v. Bass, 85 Mo. 654; Issitt v. Dewey, 47 Neb. 196, 66 N. W. 288; Chambers v. Chambers, 227 Mo. 262, 127 S. W. 86, 137 Am. St. Rep. 567, 578; Decker v. Stansbury, 22 Am. & Eng. Ann. Cas. 227 and cases in note. (2) A conveyance of land in fee to take effect at a future time is valid in this state. Ferguson v. Mason, 60 Wis. 377, 19 N. W. 420. Where á deed containing unlimited words of grant and the usual habendum clause also provided: “This conveyance is not to become absolute until after the decease of us both [grantors] . . . and then only on this condition,” etc., this was considered a valid deed with a condition subsequent. Drew v. Baldwin, 48 Wis. 529, 4 N. W. 576. See, also, Donnelly v. Eastes, 94 Wis. 390, 69 N. W. 157. In construing deeds as in construing other contracts the fundamental inquiry is, “What was the intention of the parties ?” Barkhausen v. C., M. & St. P. R. Co. 142 Wis. 292, 124 N. W. 649, 125 N. W. 680. The apparent intention here is to retain in the grantor all dominion and ownership over the land during his life consistent with an unconditional grant in fee simple, to become absolute or to “commence in possession and enjoyment” at his death. Secs. 2034, 2048, Stats. In order to hold that the grantor in this case did not intend such conveyance but did intend a testamentary disposition of his property, we must ignore the name and character of the instrument selected and executed by him, the recording thereof, the inconsistent covenants in that instrument, such as warranty, the mode of execution, and choose that construction which will make the instrument void because it is not executed with the proper formalities, rather than that which would malee it valid. There is no' evidence tending to> show [388] that this was executed as a will should be. The law ou this subject is well collected iu a note to Wilson v. Carrico, 49 Am. St. Rep. 213 (140 Ind. 533, 40 N. E. 50). The quality of revocability attempted to be attached to this instrument rests upon the theory that it is. in substance and effect a testamentary disposition. But if it is such it is void because not executed as required by law, and the question of revocation becomes immaterial. We cannot assume that the legal effect of this instrument is the same as that of a will and, treating that as a premise, conclude that it is a will. That is “begging the question.” The question is rather, What is the legal effect which the grantor intended and the instrument tends to support ? and in arriving at' the answer it is a fair presumption that he intended something valid and effectual rather than something void and useless. The precedents in this court heretofore cited, as well as the following cases from other courts, suggest that this instrument should be construed as a deed carrying a grant in fee simple to the grantee, to commence in possession and enjoyment after the death of the grantor: Dexter v. Witte, 138 Wis. 74, 119 N. W. 891; Cates v. Cates, 135 Ind. 272, 34 N. E. 957; White v. Hopkins, 80 Ga. 154, 4 S. E. 863; Graves v. Atwood, 52 Conn. 512; Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705; Wyman v. Brown, 50 Me. 139. (3) Giving the deed this construction, there is no repug-nancy between the granting clause, the habendum, and the limitation of the commencement of the right to possession and enjoyment in the grantee. (4) Such being the legal effect of the instrument, the oral evidence of the grantor to the effect that he intended a testamentary disposition was incompetent and unavailing. Wheeler & W. M. Co. v. Laus, 62 Wis. 635, 23 N. W. 17; Kirch v. Davies, 55 Wis. 287, 11 N. W. 689; Schwalbach v. C., M. & St. P. R. Co. 73 Wis. 137, 40 N. W. 579. By the Court. — Judgment affirmed.