Gilmer v. Anderson
| Decision Date | 21 May 1971 |
| Docket Number | Docket No. 10127,No. 2,2 |
| Citation | 34 Mich.App. 6,190 N.W.2d 708 |
| Parties | Barbara H. GILMER et al., Plaintiffs-Appellants, v. Robert C. ANDERSON, Defendant-Appellee, and Estate of Charles Humphries, Deceased, Intervening Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Milton F. Cooney, Pontiac, for plaintiffs-appellants.
Robert C. Anderson, in pro. per.
John K. Irwin, Jr., Pontiac, for Estate.
Before DANHOF, P.J., and McGREGOR and LEVIN, JJ.
This is an action brought by plaintiffs to determine title to certain parcels of real estate. The defendant, Robert C. Anderson, is an attorney who has in his possession certain instruments purporting to convey to plaintiffs the right title and interest of the late Charles N. Humphries, in certain properties he owned. The intervening defendant is the administrator of the estate of deceased and disputes the effect of the instruments, claiming they were never delivered.
On August 1, 1967, attorney Anderson was summoned by the deceased to draw up certain instruments relating to the property he owned. On August 2, 1967, the deceased again summoned Anderson and indicated that he wanted several changes made. On August 8, 1967, Anderson visited the deceased in the hospital at which time the instruments were executed. Anderson retained the instruments. The deceased gave Anderson no specific instructions concerning the instruments. However, the deceased did state 'Let's not be hasty.' The plaintiffs contend that the delivery of the instruments to the attorney was sufficient delivery to pass title.
In a detailed and scholarly opinion the trial court held that there had not been delivery. This case is equitable in nature and we review De novo, however, we give considerable weight to the findings of the trial court. Biske v. City of Troy (1969), 381 Mich. 611, 166 N.W.2d 453.
Delivery is a matter of the intention of the grantor as manifested by the circumstances surrounding the acts. McMahon v. Dorsey (1958), 353 Mich. 623, 91 N.W.2d 893. In Hooker v. Tucker (1953), 335 Mich. 429, 436, 56 N.W.2d 246, 249, the court stated Trask v. Trask, (1894), 90 Iowa 318, 57 N.W. 841, 842, (48 Am.St.Rep. 446), as quoted with approval in Thomas v. Sullivan (1904), 138 Mich. 265, 101 N.W. 528.
On the record before us we are not disposed to overturn the trial court's finding that there had not been delivery. The deceased, who was not unfamiliar with real estate transactions, entrusted the instruments to his agent and did not give him instructions to deliver them. The trial court did not err when it determined that the decedent did not intend a completed legal act.
Affirmed, costs to the defendant.
The trial judge made no express finding regarding his view of the credibility of the witnesses. It appears from his written opinion that he credited the testimony of all witnesses 1 and decided against Barbara Gilmer, not because he disbelieved her but because he concluded, as a matter of law, that she had failed to establish her claims.
The established rule of law is that if a grantor deposits a deed with a third party to be delivered to the grantee after the grantor's death, the grantor reserving no further control over the instrument, there is a complete delivery and an immediate estate is thereby vested in the grantee even though delivery of the deed to the grantee is not expected to occur and does not in fact occur until after the grantor's death. 2
At issue is whether the instructions to the third party to deliver the deed to the grantee upon the grantor's death must be expressed in so many words or whether such instructions may be inferred from all the facts and circumstances. And, if instructions so to deliver a deed on the grantor's death may be inferred, what inferences should be drawn on the record in this case?
Men have gone to the gallows because the trier of fact found the requisite, although unarticulated, criminal intent from the circumstances surrounding the commission of an act. I see no reason why the intent of a grantor that a deed he delivers to a third party shall be delivered to the grantee upon the grantor's death cannot be gathered from all the facts and circumstances. And, on the facts and circumstances of this case, it seems clear to me that the only reasonable inference is that the grantor, Charles Humphries, intended that the instruments he asked his attorney to prepare and which he signed and delivered to his attorney in anticipation of death would be delivered upon his death to Barbara Gilmer and the other grantees.
Charles Humphries had three children, two daughters, Barbara Gilmer and Jean Butler, and one son, Donald Humphries. Shortly before his death he became concerned about Barbara Gilmer's marital situation and expressed a desire to make provision for her financial future. (After Charles Humphries' death Barbara Gilmer's marriage was terminated by divorce.) Additionally, Charles Humphries expressed some displeasure about his son's wife.
On August 1, 1967, eleven days before his death, Charles Humphries purchased a certificate of deposit for $5,000 from his bank payable to himself 'and/or Barbara Gilmer's and gave her the certificate. He told her that he was dying, gave her a list of pall bearers and spoke to her about the arrangements that were to be made. He also gave her his checkbook--both she and her brother could also sign checks on his account--with instructions to pay his expenses. He also asked her to summon his attorney because he wanted to make out some deeds.
The attorney, defendant Robert C. Anderson, met with Mr. Humphries on the evening of August 1, 1967, and later that night the attorney prepared the instruments at his home. The following day Humphries told the attorney, who again had been summoned to the Humphries home and who arrived as Humphries was departing by ambulance for the hospital, that he had changed his mind with regard to including Barbara Gilmer's husband on any deed except the one covering the Gilmer marital home and stated also that he wished his interest in a gas station to go to his grandson, the son of Donald Humphries.
The attorney made no attempt to present instruments for signature between August 2nd and August 8th. On August 8th Humphries requested that the attorney come to the hospital after visiting hours. That evening the instruments which Humphries had asked the attorney to prepare were executed, witnessed, and notarized, and the attorney took them with him when he left. The attorney did not speak with Humphries again.
Before the instruments were signed the attorney asked Humphries whether they were 'his free act and deed.' While the attorney could not recall Humphries' response, he remembered that 'he didn't indicate anything other than that it was.' And, although Humphries did not examine the instruments at 'any great length,' the attorney recalled 'that there was no question in my mind he knew what he was doing.' The attorney was asked, 'Do you have any memory of any contingency or anything that he wanted in reference to that intention of having the property transferred?'; the attorney responded, 'No.'
All the instruments were dated August 8, 1967, and they were witnessed by the attorney and a patient who shared Humphries' hospital room. They were notarized by the attorney. Over the signatures of the witnesses the following appears on the deeds: 'Signed, sealed and Delivered in presence of:' (Emphasis supplied.).
Humphries did not give the attorney express instructions regarding the delivery or recording of the instruments and the attorney did not ask Humphries what his wishes were in that regard. The attorney testified that when he left the hospital room Humphries said to him, "Let's not be hasty,' or something to that effect.' On August 12, 1967, Humphries died.
A day or two after the instruments were signed Barbara Gilmer and the attorney had a conversation which he described as follows: He didn't believe that she asked for them at that time. He didn't 'recall anything until later on after the meeting in our office at a later date,' after Humphries' death, at which time he refused to turn the instruments over to Barbara Gilmer.
Barbara Gilmer testified that shortly after signing the deeds her father told her that she had 'nothing to worry about; that he had everything taken care of for me and I was to talk to Mr. Collins,' a land contract vendee of her father. (The vendor's interest in the Collins land contract was assigned to Barbara under the terms of one of the instruments delivered to the attorney.) She also said that her father told her that the attorney would show her 'how to get them recorded.'
Another land contract vendee, William Presson, visited Humphries in the hospital the day after the...
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Farwell v. Neal
...considerable weight is given to its factual findings. Biske v. City of Troy, 381 Mich. 611, 166 N.W.2d 453 (1969); Gilmer v. Anderson, 34 Mich.App. 6, 190 N.W.2d 708 (1971). It is undisputed that a release to be valid must be 'fairly and knowingly' made. Denton v. Utley, 350 Mich. 332, 342,......
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