Horn v. Horn

• Decision Date: 11 April 1929
• Docket Number: 26365
• Citation: 224 N.W. 857,118 Neb. 364
• Parties: WILLIAM HORN ET AL., APPELLANTS, v. HENRY HORN ET AL., APPELLEES
• Court: Nebraska Supreme Court

224 N.W. 857

118 Neb. 364

WILLIAM HORN ET AL., APPELLANTS, v. HENRY HORN ET AL., APPELLEES

No. 26365

Supreme Court of Nebraska

April 11, 1929

APPEAL from the district court for Richardson county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

The question as to the delivery of a deed is purely one of intent to be determined by the facts and circumstances of each particular case.

It is not essential to the validity of a deed that it should be delivered to the grantee personally. It is sufficient if the grantor delivers it to a third person unconditionally for the use of the grantee, with instructions to deliver it to the grantee on death of grantor; the grantor reserving no control over the instrument.

Evidence considered, and held to sustain decree of trial court.

Appeal from District Court, Richardson County; Raper, Judge.

Action by William Horn and others against Henry Horn, as an individual and as executor of the last will and testament of Emmi Horn, deceased, and others. Decree for defendant named and plaintiffs appeal. Affirmed.

Dort, Cain & Dort, for appellants.

John Wiltse and Joseph C. Reavis, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD and DAY, JJ., and ELDRED and REDICK, District Judges.

OPINION

ELDRED, District Judge.

The plaintiffs, William Horn and Anna Fehr, heirs of Emmi Horn, deceased, bring this action against the other heirs and representatives of the deceased, for the partition of an eighty-acre tract of land in Richardson county, Nebraska. The petition is in the usual form and alleges that Emmi Horn died January 16, 1927, testate, but that she failed to dispose of the property in controversy by her will, and therefore died intestate as to such property. The defendant Henry Horn answered claiming ownership of such property. No issue is raised by the other defendants. The trial court found in favor of the defendant Henry Horn and entered a decree quieting and confirming title in him. Plaintiffs appealed.

The deceased by her will disposed of all of her property not previously deeded by her. The will was executed the same day and immediately after the deed in question. A number of errors are assigned by the appellants in their brief, but in effect they all raise the same question; that is, that the evidence is not sufficient to sustain the finding and decree of the trial court. The real question involved is: Was there such a delivery of the deed from the deceased to Henry Horn for the premises in controversy as was necessary to transfer the title to him?

The deed from Emmi Horn to Henry Horn had not been filed for record at the time of grantor's death. At that time the record title to the premises was vested in Emmi Horn; the premises having been deeded to her by her daughter Louisa (Lucy) Horn. The deceased left surviving as her sole heirs four children, the plaintiffs, William Horn and Anna Fehr, Henry Horn and Emma Horn, defendants, and two grandchildren, Wilma Zentner and LeRoy Zentner, also parties defendant. Each of these heirs, by the terms of the will of the deceased, received a portion of her estate. The will specifically described the real estate, as well as some personal property devised and bequeathed thereby; but no mention was made of the real estate in controversy. The will contained no residuary clause.

On Friday morning, January 14, 1927, Emmi Horn was suffering from a strangulated hernia at her home where her daughter Emma Horn was caring for her. The plaintiff William Horn and the defendant Henry Horn, both of whom resided a few miles in the country, were each notified of their mother's serious illness. Henry arrived at his mother's home about 5 o'clock a. m., the same day. William arrived there about an hour before his mother's death, Sunday evening. About 5 o'clock a. m., Lawyer Wilhite arrived and prepared two deeds and a will, one of the deeds being the deed in controversy, and the other deed being to the daughter Emma Horn for some south Dakota property. In order to get the description of the property to be conveyed it was necessary to secure some papers from the safety deposit box in the Richardson County Bank. On account of the box being in the vault of the bank, secured by a time lock, the box could not be procured until about 8 o'clock. It was taken from the bank to the home by Henry Horn. About half an hour later an officer of the bank, Bert K. Baker, went to the residence of the deceased. It is undisputed that the deeds were executed prior to the execution of the will.

Appellants direct particular attention to portions of the testimony of the witnesses Dr. Hustead and Bert K. Baker. Dr. Hustead, who was with the deceased several hours before any of the witnesses other than Emma Horn arrived on that morning, testified: "I asked Mrs. Horn why--what business she had that would detain her from going to the hospital. She said her business affairs were in such condition she wanted those fixed up; that she did not intend to go there to the hospital and die without a will and do without certain things, and have the attorneys get all of her money. That is exactly what she said. She said she was going to deed the property because she did not want them to fight over a will; that the deeds she made she wanted them to stand, and in case she got well she might probably change it if she recovered from the operation; but if she died she wanted things just as she had made it."

Dr. Hustead arrived at the home of Emmi Horn about 1:30 or 2 a. m.; remained until about 7 a. m.; went to hospital for a few minutes and returned with Dr. Shook about the time the deeds were being prepared by Lawyer Wilhite. There is nothing to indicate that Dr. Hustead held any conversation with Mrs. Horn about the disposition of her property after that time; hence, it must follow that whatever Mrs. Horn may have said to the doctor about her probable desire to change the deeds if she recovered from the operation were statements made several hours before the deeds were executed; while the statements testified to by other witnesses hereinafter mentioned were made at the time of or after the execution of the deeds.

With reference to the delivery of the deed the witness Baker testified that deceased gave him the deed; that he put it in the safety deposit box as soon as its execution was completed, and put the box in its place in the vault, and the deed was left there until it was turned over to Henry Horn as administrator of Mrs. Horn's estate. After the deeds were signed he asked Emmi Horn what to do with them and she told him to put them in her box and said what to do with the key. This was a safety deposit box and no one has a key but the owner of the box, and she said to give the key to Miss Emma. He further testified: "I think Henry Horn had some papers in there. Whether he had the key or not, I don't think so, unless he got the key from his mother." Witness was not in the room where Mr. Wilhite and Mrs. Horn were when Wilhite was writing the deed and did not know what was said between them at that time. He was asked to go in and witness the deed. The deed was not handed to Henry, but was handed to the witness. He did not know what Mrs. Horn may have said to Mr. Wilhite at the time the will was executed about the deeds. He was not in the room at that time. Henry Horn called him at the house and met him at the bank. Henry had his mother's key and went in and got the box and went down to the house.

The testimony of this witness is not inconsistent with the decree of the court. It appears that Henry Horn had other papers in this safety deposit box where the two deeds executed were placed; that while the box in which the deeds were to be placed was to be in the custody of the bank of which Mr. Baker was an employee, neither the bank nor Mr. Baker were entrusted with the key to the box; but the mother, according to witness, directed him to deliver the key to Miss Emma, grantee in one of the deeds. The direction for the surrender of the key to the box to one of the grantees indicates that there was an intention on the part of the grantor to part with all control over the deed, and to place both deeds where they would be accessible to grantees. In re Estate of Johnson, 116 Neb. 686, 218 N.W. 739.

J. R Wilhite testified: Went to the home of deceased about 5 o'clock a. m.; went down with Henry Horn. Emmi Horn asked him to write will and deeds. The deeds were prepared, executed and acknowledged before the will was made. "I asked her what I must do with the deeds, both deeds. She said: 'Give them to Bert Baker and let him keep them in the Richardson County Bank until after my death and then give them to the children'." And further: "Well, after we left the house, Bert Baker and I left the house, the last ones to leave the house, I thought I had both deeds on the table, and I took it up and put it in my pocket, thinking I had both deeds, and went up in the office to put the seal on, I found I did not have but one...