Hazleton v. Reed

• Decision Date: 11 April 1891
• Citation: 26 P. 450,46 Kan. 73
• Parties: HAZLETON et al. v. REED et al.
• Court: Kansas Supreme Court

26 P. 450

46 Kan. 73

HAZLETON et al. v. REED et al.

Supreme Court of Kansas

April 11, 1891

Syllabus

It may be laid down as a general rule that a written instrument which discloses the intention of the maker respecting the posthumous destination of his property, and which is not to operate until after his death, is testamentary in its character, and not a deed or contract, and may be revoked. Reed v. Hazleton, 37 Kan. 321, 15 P. Rep. 177.

Error from district court, Ottawa county; M. B. NICHOLSON, Judge.

Garver & Bond, for plaintiffs in error.

R. R Rees and W. E. Richards, for defendants in error.

OPINION

HORTON, C. J.

This was an action brought in the court below by the widow and minor children of John Hazleton, deceased, against James C Reed, executor of the last will of Henry Ricket, deceased, and other parties, to enforce an alleged contract for the conveyance of certain real estate executed on the 9th of March, 1883. by John Hazleton and Henry Ricket. Henry Ricket died on the 15th of September, 1883. John Hazleton died on the 9th of April, 1888. Upon the part of the plaintiffs it is claimed that, within the terms of the contract, Ricket was under obligation to make such provisions by deed or will as would vest the title to the land in Hazleton; that the mere method or form adopted for this purpose cannot be held to be material, so that the intention of the parties is carried out; that it is the duty of the court to ascertain the intention of the parties with reference to the subject-matter of their agreement, when that can be done; that it was the intention of both Ricket and Hazleton that the land should become the property of the latter upon the former’s death; and therefore that the district court erred in sustaining the demurrer of the defendants, upon the ground that the petition did not state sufficient facts to constitute a cause of action. The written memorandum of the alleged contract was under consideration by this court in the case of Reed v. Hazleton, 37 Kan. 321, 15 P. 177. The facts of this case, together with a copy of the memorandum, are recited in full in the foregoing case, and need not be repeated here. In the former opinion handed down it was said: "Under the view which we take of this instrument, it will be unnecessary to examine the nature of a contract of bargain and sale, and a covenant to stand seized to the use of the grantee, which are discussed in the briefs filed in this action. We believe that it ought not to be placed in either of those classes of conveyances. *** This article of agreement does not contain any of the usual operative words of a conveyance, with the possible exception of this clause: ‘After the death of said Henry Ricket, of the first party, the right and title of the land in question shall vest in the said John Hazleton, of the second party.’ That provision has no present operation, and could be revoked by the grantor at any time. It was testamentary. *** The old man wisely kept possession and control of his home, to prepare for the possible change in the feelings of himself and Hazleton. Hazleton was not without recourse if he had performed services for which he had not been paid. He could have presented his claim against the estate, and the courts were open to aid him in obtaining his dues." This disposes of the case. In Turner v. Scott, 51 Pa. St. 126, on the 22d of November, 1849, the father, John Scott, executed an instrument to his son, John W. Scott, purporting to convey his farm. The consideration for the execution of the instrument was the natural love and affection which the father had for his son, and also an agreement from the son that he was to live with the father, assist him in his work on the land, and maintain the mother during her natural life, if she survived her husband. The instrument contained the following provisions: "Excepting and reserving, nevertheless, the entire use and possession of said premises, unto the said John Scott and his assigns, for and during the term of his natural life; and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor." The son commenced to live with his father upon the land mentioned in the instrument, but after a time they quarreled. The father turned the son out, and on the 26th of February, 1861, made a will revoking the instrument executed to his son, which had been put upon record in the proper county. The chief justice of the court, in construing the written instrument from John Scott to his son, John W. Scott, said: "We see nothing in the covenant of warranty to change our construction of the operative words of the grant. As these words were expressly limited to take effect only after the death of the grantor, they were necessarily revokable words. The doctrine of the cases is that, whatever, the form of the instrument, if it vest no present interest, but only appoints what is to be done after the death of the maker, it is a testamentary instrument. It signifies nothing that the parties meant to make a deed instead of a will. If they have used language which the law holds to be testamentary, their intention is to be gathered from the legal import of the words they have employed, for all parties must be judged by the legal meaning of their words." In Leaver v. Gauss, (Iowa,) 17 N.W. 522. Leaver and wife...