Forbes v. Volk

• Decision Date: 24 January 1961
• Docket Number: No. 2956,2956
• Citation: Forbes v. Volk, 358 P.2d 942 (Wyo. 1961)
• Parties: Alberta FORBES, Administratrix of the Estate of Catherine Volk, deceased, Appellant (Defendant below), v. Arthur C. VOLK, Jr., Appellee (Plaintiff below), and Alberta Forbes, and William B. Sadler and Onita Miller, heirs at law of Catherine Volk, Defendants.
• Court: Wyoming Supreme Court

Page 942

358 P.2d 942

Alberta FORBES, Administratrix of the Estate of Catherine Volk, deceased, Appellant (Defendant below), v. Arthur C. VOLK, Jr., Appellee (Plaintiff below), and Alberta Forbes, and William B. Sadler and Onita Miller, heirs at law of Catherine Volk, Defendants.

No. 2956.

Supreme Court of Wyoming.

Jan. 24, 1961.

Clarence A. Swainson, Cheyenne, Swainson & Swainson, Cheyenne, on the brief, for appellant.

Walter C. Urbigkit, Jr., Cheyenne, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

In this action Arthur C. Volk, Jr., as plaintiff, brought this action against Alberta Forbes, the duly appointed administratrix of the estate of Catherine Volk, and Alberta Forbes, William B. Sadler and Onita Miller, heirs at law of Catherine Volk, for a declaratory judgment in regard to a deed executed by Catherine Volk on March 19, 1955. That deed conveyed the east twenty-two feet of Lot 7 and the south eighty-eight feet of the west twelve feet of Lot 8 in Block 602 in the City of Cheyenne and the north forty-four feet of Lot 8 in Block 602 in the City of Cheyenne. The complaint alleges that this deed was executed on March 19, 1955, and was duly recorded on March 19, 1955, in Book 565, page 223, of the records of the County Clerk, Laramie County, Wyoming. Plaintiff also alleged that the claim of the defendants constitutes a cloud on the plaintiff's title. An answer was filed by the administratrix of the estate alleging that on March 19, 1955, Catherine Volk was the owner of the property hereinbefore mentioned; that she died intestate on October 27, 1958, leaving the defendant parties hereto as heirs at law; that the deceased, Catherine Volk, in executing the deed above mentioned never intended that it should become operative and effective during her natural lifetime and never intended that the plaintiff should acquire a present interest in and to the property; that the deceased used, occupied, controlled, operated, managed, leased and in all other respects dealt with and acted toward the foregoing property as the owner thereof and represented herself as such owner during her lifetime; and that the foregoing deed to the plaintiff is testamentary in nature and void because not executed as a will as required by law.

After trial of the case judgment was duly entered in favor of the plaintiff, declaring him to be the owner of the property above mentioned and declaring the defendants above named to have no interest therein. From that judgment the administratrix has appealed to this court.

The deed aforesaid is in the form of a deed permitted by the statutes of this state and states as follows:

'That the Grantor for and in consideration of the natural love and affection which she has for the Grantee, has given, granted, bargained, conveyed, released and confirmed, and by these presents does give, grant, bargain, convey, release and confirm unto the Grantee, his heirs and assigns forever, all the following described real estate situate in the County of Laramie, State of Wyoming, to wit,

'Parcel Number One: The East Twenty-two (22) Feet of Lot Seven (7), and the South Eighty-eight (88) Feet of the West Twelve (12) Feet of Lot Eight (8), in Block Six Hundred and Two (602), in the City of Cheyenne;

'Parcel Number Two: The North Fourty-four (44) Feet of Lot Eight (8), in Block Six Hundred and Two (602), in the City of Cheyenne;

'Subject however to that certain mortgage upon parcel number two above in the amount of six thousand one hundred and fifty dollars ($6,150.00) dated March 14, 1955, recorded March 14, 1955, in book 574 of Mortgages, at page 411 thereof.

'To have and to hold the premises, together with all the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, to the Grantee, his heirs and assigns forever.

'And the Grantor covenants with the Grantee, his heirs and assigns, that she is seised of the premises in fee simple and has the right to convey the same; that the premises are free and clear from all encumbrances except as aforesaid, which Grantor covenants and agrees to pay and satisfy, and Grantor will warrant and forever defend the title to the premises against the claims and demands of all persons whomsoever.'

In setting out the evidence in this case, we shall to a very large extent follow the statement, somewhat modified, as contained in the brief of counsel for the appellant. This evidence is as follows: Three or four days prior to March 19, 1955, Catherine Volk consulted her attorney, Harold Mai, relative to preparing a deed conveying the real estate above mentioned. The attorney prepared the deed. Deceased stated to Mai, that her purpose was that she desired to give the property to her son, Arthur C. Volk, Jr., and that she did not want the other heirs to have it, and for that purpose she wanted to know how she could be absolutely sure. She wanted to execute the deed at that time and wanted her son, Arthur C. Volk, Jr., to have full title to the real property. She was going to continue running the store on the property herein mentioned and wanted the title to the property vested in her son so that no other heir could obtain an interest in it. She wanted it to be a gift to him and wanted it vested in him at once. This testimony was objected to as being a privileged communication between an attorney and a client but the objection was overruled. The attorney prepared the deed according to the instructions. The deceased signed it in his presence and she acknowledged it before a notary public. The deed was then delivered to Mai and he had it recorded. When it was returned he mailed it to the appellee according to the instructions of Mrs. Volk, who requested that the deed be sent to and be in the possession of the plaintiff and appellee, Arthur C. Volk, Jr. She and the grantee prepared a gift tax return and filed it with the Internal Revenue Department of the United States. Nothing was paid for the property by the grantee of the deed but it was considered a gift made on account of love and affection. By further evidence in the case it appears that deceased told Mai that she did not want any of the other children to have the property and that the property was mortgaged and she wanted the gift to be free of mortgage and intended to continue making payments thereon.

The plaintiff himself testified that he was the son of the grantor; that the deed in question was mailed to him on April 27, 1955. While he was living in Denver prior to March 1955, his mother told him that she wanted to give him the property in question. At the time when the deed was executed the property was improved by store buildings and there was a mortgage of a considerable amount which grantor paid. The grantor built and paid for a garage and house on the property after the execution of the deed and collected the rent. Plaintiff paid taxes on the property but was reimbursed by Mrs. Volk. The witness made financial statements to local institutions but did not list the property in question as an asset. Mrs. Volk paid premiums for insurance on the property and collected a hail loss.

The defendant, Alberta Forbes, administratrix, testified that she is the daughter of Catherine Volk who died October 28, 1958, and that she is the administratrix of her estate and that she had no knowledge of the execution of the deed until after her mother's death. She lived near her mother's residence from 1954 to 1958 and assisted her in her business affairs and visited her two or three times a week. From 1955 to 1958 the property was occupied by Mrs. Volk who lived in the store and rented the house which was under construction when the deed was executed, Mrs. Volk paying for the construction. Mrs. Volk attempted to sell the property several times and listed it for sale with three different parties. The defendant testified that the deceased paid the taxes and insurance on the property.

Tom Searl, a real estate broker, testified that on May 10, 1955, Catherine Volk listed her property above mentioned with him for sale for the period of thirty days and that he had an offer on the property but that she rejected it.

Exhibits in the case show that a gift tax return was made by the deceased, Catherine Volk, and by the plaintiff, Arthur C. Volk, Jr. One insurance policy, apparently executed on May 10, 1956, insured the property in the names of Catherine Volk and Arthur C. Volk, Jr. Another insurance policy, dated January 25, 1958, was made out in the name of Catherine Volk alone. The assessment schedule for 1955 was made in the name of Arthur C. Volk, Jr., by Catherine Volk. The assessment schedule for 1957 was signed only by Arthur C. Volk, Jr. The assessment schedule for 1958 was made in the name of Arthur C. Volk, Jr., by Catherine Volk.

The contentions of the appellant are, first, that the evidence shows that Mrs. Volk never intended the deed to appellee to take effect until death and was testamentary in nature and void; and, second, that some of the evidence of Harold Mai consisted of privileged communications and the trial court was in error in overruling the objection to that testimony. We shall consider these contentions in their order.

1. An instrument which passes a present interest in realty is a deed and not a will and not an instrument testamentary in character. 1 Page, Wills (1960), p. 245; 94 C.J.S. Wills § 137, p. 916, n. 23 (1956). There can hardly be any doubt in examining the deed hereinbefore set out that it purports to pass a present interest in the property. That is illustrated, for instance, in the case of Crowley v. Engelke, 394 Ill. 264, 68 N.E.2d 241, 251. In that case an assignment reciting "I hereby sell, assign, grant and convey * * * all of my right, title and interest * * * which I as an heir-at-law, legatee, devisee * * * may be entitled to or which my estate will possess after my death" was valid as presently...