Goodale v. Evans

• Decision Date: 02 December 1914
• Docket Number: No. 16649.,16649.
• Citation: 172 S.W. 370
• Parties: GOODALE et al. v. EVANS et al.
• Court: Missouri Supreme Court

172 S.W. 370

GOODALE et al. v. EVANS et al.

No. 16649.

Supreme Court of Missouri, Division No. 1.

December 2, 1914.

Rehearing Denied December 31, 1914.

1. WITNESSES (§ 140) — COMPETENCY — TRANSACTIONS WITH A DECEASED PERSON — WIFE OF GRANTEE.

Where both parties to a deed are dead, the wife of the grantee cannot testify that she furnished the money for the purchase of the property.

2. EVIDENCE (§ 450) — PAROL EVIDENCE AFFECTING WRITINGS — EXTRINSIC CIRCUMSTANCES.

A deed granting a life estate to the grantor's wife, with remainder to the children, habendum to the grantees "from and after the death of the grantor," and expressly stating that the intention of the grantor was to convey the property "to take effect upon the death of the grantor," is so clearly a conveyance to become effective upon the grantor's death that no extrinsic evidence is admissible to aid in its construction.

3. WILLS (§ 88) — DEED OR WILL.

An instrument, in form a deed, but not to become effective until the death of the grantor, is testamentary in character and void if not executed according to the statutes of wills.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by Annie Goodale and others against Leah J. Evans and others. Judgment for the defendants, and plaintiffs appeal. Reversed and remanded.

This action was brought in two counts, in the circuit court of Macon county, by the plaintiffs against the defendants to determine title to a certain house and lot in Bevier, of that county. The first count was based upon old section 650, R. S. 1899, as amended in 1909 (Session Acts 1909, p. 343), now section 2535, R. S. 1909; and the second count was for the partition of the property. Both counts were in conventional form and need no further consideration. The answer was: (1) A general denial. (2) A plea of title in the defendants by deed. (3) That the action was barred by the 10, 24, and 30 years' statute of limitations. (4) That the premises in question were purchased and paid for by the defendant Leah J. Evans out of her separate estate, and that she was, by the right of said purchase, the owner of a resulting trust in and to said property, and prayed for a decree establishing and awarding her that right. The reply was a general denial, and a plea of the statutes of limitations against defendants claiming a resulting trust.

The common source of title was Hopkins Evans, who died intestate in Macon county, on December 12, 1892, leaving his widow, Leah J. Evans, and one daughter, Annie Goodale, a grandson, Albert R. Davis, and two granddaughters, Mary L. Jones and Anna C. Jones, the sole surviving blood kin to said Hopkins Evans.

Prior to his death, said Hopkins Evans executed a deed purporting to convey the premises in controversy to said Leah J. Evans, which was in words and figures as follows:

"Know all men by these presents that for and in consideration of one hundred dollars, and other good and valuable considerations thereto moving the undersigned Hopkins Evans of the county of Macon and state of Missouri, party of the first part, has this day granted, bargained and sold and by these presents do hereby grant, bargain and sell unto Leah J. Evans, of said county and state, party of the second part, wife of the said party, the following described real estate, lying and situate in the county of Macon and state of Missouri, to wit:

"All of out lot number twenty-eight (28) in the town or village of Bevier in the county and state aforesaid, as the same is laid out, platted and recorded in the proper office in said county, reserving all coal and other minerals thereunder with the right to enter and remove the same at pleasure;

"To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging from and after the death of him the said Hopkins Evans, party of the first part, for and during the natural life of her, the said Leah J. Evans, party of the second part, remainder in fee as follows, to wit: Sixty feet by eighty feet in the southwest corner of said lot to Leah J. Evans, daughter of John A. Evans and granddaughter of said Leah Evans, and more particularly described as follows: Beginning at the southwest corner of said lot twenty-eight (28), and running thence sixty (60) feet east, thence north eighty (80) feet, thence west sixty (60) feet, thence south eighty (80) feet to the place of beginning: And all the rest and remainder of said lot and premises to the children of Lizzie and David W. Jones, grandchildren of her and said Leah J. Evans, said party of the second part, in equal parts, share and share alike.

"If the said party of the first part shall survive the said Leah J. Evans, party of the second part, then the children and parties above mentioned and described as remainder men and holders of said premises, after the death of said second party, shall take, have and hold said described lot and premises, and their respective parts, shares and interests therein as above set forth, in fee, from and after the death of him the said Hopkins Evans party of the first part.

"It is the intention of the grantor by this deed to convey said property to said Leah J. Evans for life, to take effect on the death of the grantor and after her death and after the death of him (if he should survive her), the property to go to and vest in her grandchildren named in the deed, the said Leah Evans to have and to hold said parcel of sixty by eighty feet in the southwest corner of said lot, fronting on Hunt street, and the children of Lizzie and David W. Jones to have and to hold all the rest and remainder of said lot.

"In witness whereof the said party of the first part has hereto set his hand and seal on this 11th day of August, A. D. 1890.

                                "Hopkins Evans.   [Seal.]"
                

This deed was duly acknowledged and recorded. This deed was introduced in evidence over the objections of the plaintiffs.

The property in controversy was the homestead of the deceased, Hopkins Evans, and was worth the sum of $1,500 or more at the time of the execution of the foregoing deed. There was about 2¾ of an acre in the original tract, purchased by Hopkins Evans and his wife, from William Harvard on April 30, 1885, for which she paid out of her separate means $300, and the balance, some $500, was paid, as testified to, by Leah J. Evans in the following manner:

"Q. Where did the other money come from? A. Well, I paid part of it as we saved it and made it; as we went along we paid it. Q. The balance of the money? A. But I have paid altogether $800 on the place."

She also testified, as follows, regarding the execution of said deed, viz.:

"By the Court: Q. Why was it made to your husband instead of to you? A. William Harvard is not living, or I could tell you. Q. Do you know why? A. I know; yes, sir. I was sick at the time, and Mr. Harvard was there wanting payment, and Mr. Evans wanted to give him a mortgage, and I said, `Well, Mr. Evans, I am not able to go with you, but if you will have a deed drawn up in my name I will give the money and I will help to pay for it along until it is all paid.' `Oh, yes,' he said, `of course, I wouldn't make it out any other way. Of course, I will have it made in your name.' When he brought the deed to me and I looked at it, I says: `Mr. Evans, you haven't done as you agreed to. You agreed to have it drawn in my name because I furnished the money.' `Well, it is all the same,' he says, `don't make a bit of difference; it will be all the same.' And he put me off, but I felt awful at the time and cried over it because it was my poor mother's money. Q. What did he say, if anything, at that time about deeding it to you? A. Well, he told me he was going to make it all right with me, and `first time I go to Macon,' he said, `I will see Dysart, and I will have Dysart make a deed out to you. You shall have it; I am not going to deceive you. You shall have it in your own name.' But we did differ a little about how we would make it out. I wanted it made, because I had money in it, to my daughter. I only have one daughter, and this granddaughter, because we raised her and she always worked for us, and my daughter had always worked for us until she was married, and I told him I thought she was entitled to what I had, anyhow. He says, `I must let them other children have it, the children that has been born in the house with me; I cannot give them up; I must let them have some of it.' Q. That is, your daughter's children here? A. Yes, sir. Q. These defendants? A. Yes, sir. I says, `Supposing you deed the whole place between my daughter and granddaughter, and my daughter will do all right with her children.' He says, `She might use up the money and the little girls not have it.' He says, `I can't come any nearer than deed it to them children.' I says, `If you won't do any better, I will have to give in, but they are my grandchildren, but are not as dear as my own child, but if you are determined the children must have something I will have to give in.' And that was the way it was. Q. You may tell the court where you lived from the time the deed was made until Mr. Evans died. A. In our own house. Q. On this place? A. Yes, sir. Q. Who built that house? A. Mr. Newton. By Mr. Jones: `Before you get into that, first we want to object to any testimony with reference to what was said or done...