Gardner v. Kern
| Decision Date | 21 December 1926 |
| Docket Number | 19534 |
| Citation | 155 N.E. 134,115 Ohio St. 575 |
| Parties | Gardner Et Al. v. Kern. |
| Court | Ohio Supreme Court |
Descent and distribution - Estates by purchase - Deed from father to son reciting valuable consideration - Section 8574, General Code - Fee passes upon son's death, intestate and without issue - Descent unchanged by simultaneously executing will and deeds distributing estate - Presumption that recital of consideration changed title through deed of purchase.
Where a father executes a deed to his son, containing recitals of a valuable consideration received from the grantee, such deed conveys title by way of purchase, and, upon the grantee's death, intestate and childless, the estate descends in fee and vests in his relict under the provisions of Section 8574 General Code.
On the same day a father, contemplating the distribution of his real estate, executed three instruments; two separate deeds to his son and daughter, respectively, each reciting the receipt of a valuable consideration from the grantee, and also a will devising another tract of land to his wife, and still another to children of a deceased daughter. Proof merely of the execution of such contemporaneous instruments does not convert the deed to the son into one of gift, thereby changing the course of descent.
Although the execution of such contemporaneous documents may tend to prove that the grantor contemplated only the distribution of his property, that fact alone does not furnish clear and convincing proof of a mistake or mistaken intention on the part of the grantor. He had the right to impart to his deed the descendible quality of the title he was conveying; and, when he employed therein the recital of a valuable consideration, it will be presumed that he used the recital with the intention of conveying title to his son through the medium of a deed of purchase.
On January 10, 1889, one George Kern was seized of four separate tracts of real estate. At that time there were living his wife, Harriet; a daughter, Harriet A. Gardner, the plaintiff in error; a son, William H. Kern; and six grandchildren, the children of Phoebe, a deceased daughter. On the same day, being January 10, 1889, George Kern executed three separate documents; (1) a deed for one of the tracts to his daughter Harriet for a recited consideration of $8,000; (2) a deed for a second tract to his son, William H. Kern, for a recited consideration of $9,000; and (3) a will devising his personalty and a third tract to his wife, Harriet, and also devising a brick building to his six grandchildren. This will contains the following item:
"Fourth: Whereas I have at this date conveyed to my son William H. Kern and to my daughter Mrs. Hattie Alice Gardner each a tract of land as their full and fair share of my property and estate I do not therefore make to them or either of them any devise or bequest whatever."
The will also contained the following clause: "Memorandum: The property herein above devised to my children, I had first duly appraised, to the end that I might make a just and fair distribution thereof."
George Kern predeceased William, whose death occurred in 1923.
The property concerned in this suit is a tract of 80 acres deeded to the son, William II. Kern, who died intestate and childless. The latter's wife, Lottie Kern, the defendant in error, instituted an action in the court of common pleas seeking to quiet the title to this tract, claiming that it had been acquired by her husband by deed of purchase, and that the property passed to her as his relict under Section 8574, General Code.
The plaintiffs in error claim that the title came to the son, William H. Kern, not by purchase, but as a deed of gift from his father, and, there being no children, that Lottie took only a life estate, under the provisions of Section 8573, General Code.
In the trial court the defendants, plaintiffs in error here, while claiming the deed to the son from the father to be one of gift, filed a cross-petition asking a reformation of that deed, alleging therein that the deed to William H. Kern was based upon no consideration, and that the actual consideration was not the sum of $9,000, named in the deed, but consisted of love and affection only.
The trial court rendered judgment for the plaintiff, Lottie Kern, and the cause was appealed to the Court of Appeals. On the trial in the latter court, the plaintiff, Lottie, offered in evidence the deed of George Kern to his son William H. Kern and rested. That deed purported to be a conveyance of the tract by George Kern to his son, William II., "for the consideration of nine thousand dollars, ($9,000.00), received to my full satisfaction of William H. Kern," etc.
The defendants below then offered the deed of George Kern to his daughter Harriet and his will, aforesaid. They also offered a written appraisal dated December 28, 1888. This appraisal purports to have been signed by three individuals appraising the cash value of the tract deeded to William H. Kern at $9,000; of the tract deeded to the daughter Harriet at $8,000; and of the brick building devised to the six grandchildren at $5,000. At this stage the plaintiff objected to the introduction in evidence of the documents offered by the defendants. The Court of Appeals permitted their admission as stated in the journal entry, not for the purpose of supporting the claim of the defendants that the deed to William H. Kern should be construed as a deed of gift, rather than as one of purchase, but in support of their claim for reformation of the deed on the ground of mutual mistake.
On the record thus presented the Court of Appeals refused the reformation of the deed executed to William H. Kern, the son, and ordered that the possession and title of Lottie Kern to the property be quieted as against the plaintiffs in error. It is from this decree that error is prosecuted to this court.
Messrs. Miller, Brady, Yager & Leidy, for plaintiffs in error.
Messrs. Parkhurst & Vickery, for defendant in error.
The deed of George Kern to his son, William H. Kern, contained a recital that the grant was made "for the consideration of nine thousand dollars ($9,000.00), received to my full satisfaction of William H. Kern, the grantee," etc.
The son having died intestate and without issue, his widow brought this suit claiming title in fee as the relict of the intestate by virtue of Section 8574, General Code. If the property came to her husband by deed of purchase, Lottie Kern's title in fee must be sustained; if it came by deed of gift, she has merely a life estate, under the provisions of Section 8573, General Code. The plaintiffs in error are remaindermen, who claim that the aforesaid deed was, in fact a deed of gift, and that the fee is vested in them, subject to the...
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