Kelley v. Shimer

• Decision Date: 14 March 1899
• Citation: 152 Ind. 290,53 N.E. 233
• Parties: KELLEY et al. v. SHIMER.
• Court: Indiana Supreme Court

152 Ind. 290

53 N.E. 233

KELLEY et al.

v.SHIMER.

Supreme Court of Indiana.

March 14, 1899.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Petition by Charles B. Shimer, administrator of the estate of Eliza Jane Clements, against Joseph Kelley, guardian, and others, to obtain an order to sell certain real estate for the payment of claims. From an order of sale, defendants appeal. Affirmed.

Masson & Reagan, for appellants. Ayers & Jones, for appellee.

MONKS, C. J.

Appellee, as the administrator of the estate of Eliza J. Clements, deceased, filed his petition against appellants, and obtained an order to sell certain real estate to make assets for the payment of claims allowed against said estate. It appears from the record that in May, 1886, Eliza Cossell executed to her daughter Eliza Jane Clements an instrument in writing which was in the ordinary form of a warranty deed, except that, after the regular granting words and the description of the land, it read as follows: “This deed is to take effect and be in full force on and after the death of this grantor, Eliza Cossell. This deed, grant, and conveyance is made to the grantee, to have and to hold the same during her natural life; and after the death of the grantee, Eliza Jane Clements, then the above-described real estate shall be the absolute property of the heirs of the body of Eliza Jane Clements, grantee herein.” Said written instrument was in the year 1886 recorded in the deed records of Marion county, Ind. Said Eliza Jane Clements died intestate in the year 1894, leaving, as her only heirs, appellants Minter Clements, her husband, and Anna J. Clements and Bessie M. Clements, her children. Afterwards, in 1897, said Eliza Cossell died, intestate, leaving, as her only heirs, said Anna J. Clements and Bessie M. Clements. Appellants insist that, “while the instrument in question is in form a deed, it is in fact an attempted testamentary disposition of the grantor's land, and, not being executed with the requisites of a will, passed no title to Eliza Jane Clements, appellee's intestate, but said real estate, on the death of Eliza Cossell, was inherited by said Anna J. and Bessie M. Clements, her grandchildren.” It is conceded by appellants, however, that, if said instrument is a deed, the land described therein is a part of the estate of Eliza Jane Clements, and that the court correctly ordered the sale of said land on the petition of appellee.

The rule is that “an instrument having all the formalities of a deed will be construed to operate as a deed, wherever it appears therefrom that it was the intent of the maker to convey any interest whatever to vest upon the execution of the paper. If, however, it appears that all the estate which it was the purpose to convey was reserved to the grantor during his life, and that the deed was only to take effect upon the death of the grantor, it will be construed to be testamentary in its character.” Spencer v. Robbins, 106 Ind. 580, 584, 5 N. E. 726;Wall v. Wall, 30 Miss. 91; 19 Cent. Law J. 46. The instrument in question embodies all the requisites of a statutory deed, as provided by section 3346, Burns' Rev. St. 1894 (section 2927, Horner's Rev. St. 1897), and clearly vested in the grantee an estate in fee simple, unless the recitals following the description of the real estate have a contrary effect. The general rule laid down by the authorities is that a declaration that the deed shall not go into effect until the death of the grantor does not give it a testamentary character. Jones, Real Prop. § 527, and cases cited in notes. The cases decided by this court hold that recitals in deeds substantially the same as those in this case did not render such instruments testamentary in character, but that they conveyed an estate in fee simple when the instruments were executed, and that the only effect of such recitals was to reserve a life estate to the grantor, and thus postpone the possession of the grantee until after the death of the grantor. Cates v. Cates, 135 Ind. 272, 275, 276, 34 N. E. 957;Wilson v. Carrico, 140 Ind. 533, 40 N. E. 50, 49 Am. St. Rep. 213, and note pages 219-221; Owen v. Williams, 114 Ind. 179, 15 N. E. 678; Spencer v. Robbins, supra. The same rule is declared in the following cases: White v. Hopkins, 80 Ga. 154, 4 S. E. 863;Seals v. Pierce, 83 Ga. 787, 10 S. E. 589; Johnson v. Hines, 31 Ga. 720; Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563;Shackelton v. Sebree, 86 Ill. 616; Wall v. Wall, supra; Wyman v. Brown, 50 Me. 139; Abbott v. Holway, 72 Me. 298; Chancellor v. Windham, 1 Rich. Law, 161;Phillips v. Lumber Co., 94 Ky. 445, 22 S. W. 652, 42 Am. St. Rep. 367, and note page 370; Reynolds v. Towell (Ky.) 11 S. W. 202; Devl. Deeds, § 855b; Jones, Real Prop. §§ 526, 527. In Owen v. Williams, 114 Ind. 188, 15 N. E. 684, the language of the deed was that the grantors of the deed, naming them, “convey and warrant to” the grantee, naming him, “after my decease and not before, the following real estate,” describing it. The court said: “The use of the phrase therein, ‘after my decease, and not before,’ did not make the deed testamentary in character, but operated merely to show that the grantee's use and enjoyment of the lands conveyed would not begin under such deed until after the grantor's death, and not before. Spencer v. Robbins, 106 Ind. 580, 5 N. E. 726...