Glocksen v. Holmes

• Decision Date: 23 March 1945
• Citation: 299 Ky. 626
• Parties: Glocksen v. Holmes et al.
• Court: United States State Supreme Court — District of Kentucky

Page 626

299 Ky. 626

Glocksen v. Holmes et al.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

March 23, 1945.

1. Deeds. — The adjective "all", meaning the whole, as applied to property attempted to be conveyed, is a sufficient descriptive word in an inter partes conveyance to transfer title from grantor to grantee.

2. Wills. — Whether an instrument is a deed or a will is to be determined by intention of the one who executed it.

3. Wills. — Where instrument on its face purports to convey a present vested interest, it will be construed as a deed.

4. Wills. — Where instrument on its face discloses intention to postpone vesting of any right of any character, until after death of maker of instrument, it is testamentary and should be construed only as a will.

5. Wills. — In determining whether instrument is a deed or a will, a secret intention of maker antagonistic to the plain wording of the instrument will not prevail.

6. Deeds. — Grantor must be of sound mind at time he executes a deed.

7. Wills. — Where husband wrote on a typewriter, signed, and immediately delivered to his wife an unwitnessed instrument reading: "I * * * being sound of mind, convey to my wife * * * all my property; Personal or real, to be administered by her, as she pleases", the instrument was a deed transferring the fee in husband's property.

Appeal from Jefferson Circuit Court.

Oscar Bader and Emeric Maratta for appellant.

Ewing L. Hardy, Leon J. Shaikun and Davis W. Edwards for appellees.

Before Gilbert Burnett, Judge.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

The appellant, and plaintiff below, Maude Glocksen, is the widow of Dr. John J. Glocksen who died intestate, a resident of Louisville, Jefferson County, Kentucky, on December 9, 1938. No children were born to them. About ten years prior to his death the doctor wrote on a typewriter and signed his name thereto this instrument:

"I, John Glocksen, being sound of mind, convey to my wife, Maud, all my property; Personal or real to be administered by her, as she pleases.

                                               "John J. Glocksen"
                

His only heirs were collaterals who were no nearer related to him than nieces and nephews. He appears to have owned at the time of his death five cottages in the city of Louisville, the total value of which was not exceeding $2,000 and upon which there was a mortgage lien of $600. The widow (appellant, and plaintiff below), following her husband's death, offered the above instrument for probate in the Jefferson county court, but she was unsuccessful because it was not witnessed, nor was it holographic, and every attorney connected with this case concedes that its rejection was proper. She then filed this action in the Jefferson circuit court in which she set out the heirs of her deceased husband, so far as she knew them, as well as all of his unknown heirs, all of whom she made defendants. She then alleged that the written instrument referred to was and is a deed to her from her husband of all of his property, and she prayed that the court so adjudge, since it was not acknowledged or properly witnessed and was unrecordable; therefore she prayed that the court direct the Master Commissioner of the Jefferson circuit court to execute to her a deed to the decedent's real estate by a recordable conveyance so that her title to the property might appear of record.

Upon the filing of the petition the Clerk issued a warning order for defendants and appointed Leon J. Shaikun as warning order attorney. He made the usual report, and his inability to make defense. The court thereupon appointed Judge Davis W. Edwards as additional, or co-warning order attorney, and as such he entered a general denial of the averments of the petition. Whereupon evidence was taken by interrogatories, and the court on final submission adjudged "that said instrument is not a conveyance and deed of the property from him (Dr. Glocksen) to her (the widow)" (our parenthesis), and adjudged that it is not a deed, and the plaintiff's petition was dismissed. From that judgment plaintiff prosecutes this appeal.

The court wrote no opinion setting forth the grounds of its conclusion as embodied in the judgment. There are only two grounds upon which its judgment could be rested, and they are, (1) insufficient description of the property so as to pass title, and (2) that the language of the instrument in the light of the testimony, properly heard, did not disclose an intention on the part of Dr. Glocksen to convey a present interest in the property to his wife. Each of them will be considered and determined in the order named.

1. The great weight of authority (although there may be some few scattering cases to the contrary) is to the effect, that the adjective "all" (meaning the whole), as applied to property attempted to be conveyed, is a sufficient descriptive word in an inter partes conveyance to transfer title from the grantor to the grantee. In stating that rule as adopted and applied by the great weight of authority the text in 16 Am. Jur. 591, section 272, says:

"According to the weight of authority, a deed describing the subject matter as `all' the grantor's property or `all' his property in a certain locality is not defective or void for want of a sufficient description, and the description will be held sufficient and the property identified where it appears that the grantor owns only one piece of property to which the description can apply. Under the rule stated, deeds which describe the property conveyed as all the real estate belonging to the grantor, all the interest of the grantor in designated section, all his real property in a certain city or town, or all his property in a certain county are generally held to be effective. A conveyance of all the property of the grantor in a certain state is sufficient to pass title to real estate, without a particular description of it."

In note 13 to that text are many cases from many courts including annotations in 55 A.L.R. 162 following the case of Brusseau v. Hill, 201 Cal. 225, 256 P. 419, in which the California court approved the text stated rule. The annotation referred to in stating the rule, on page 163 of the same volume, says this: "By the weight of authority a deed or mortgage, describing the subject matter as `all' of the grantor's property, or `all' of his property in a certain locality is not defective or void for want of a sufficient description." In support of that statement cases are cited from the U.S. Supreme Court and from similar courts of the states of Alabama, Arkansas, California, Florida, Illinois, Kentucky, Maine, Maryland, Massachusetts, Mississippi, Nevada, Pennsylvania and Texas, as well as a number of English cases. The Kentucky cases listed by the annotator are Starling v. Blair, 4 Bibb 288, and Albertson v. Prewitt, 49 S.W. 196, 20 Ky. Law Rep. 1309.

In the Starling case the instrument involved was a mortgage on a lot belonging to the mortgagor located in the city of Frankfort, and the only description contained therein was: "all the lots that he (mortgagor) then owned in the town of Frankfort, whether he had a legal or equitable title thereto." (Our parenthesis). This court held the description sufficient although couched in such general language.

In the Albertson case the involved instrument was a deed conveying land described as "all the lands said Davis holds on the Dry Fork of Otter creek." This court speaking through Justice Hazelrigg upheld the deed and enforced it. It was attacked "because the description of the property was too indefinite for identification"; but the learned justice writing the opinion said:

"It appears, however, that by additional pleadings, the plaintiff set out the lands owned by the...