Kolber v. Schneider

• Decision Date: 21 June 1926
• Citation: 209 N.W. 595,190 Wis. 468
• Parties: KOLBER ET AL. v. SCHNEIDER ET AL.
• Court: Wisconsin Supreme Court

190 Wis. 468

209 N.W. 595

KOLBER ET AL.

v.SCHNEIDER ET AL.

Supreme Court of Wisconsin.

June 21, 1926.

Appeal from Circuit Court, Washington County; Chester A. Fowler, Judge.

Action by John Kolber and others against Nicholas Schneider, John E. Steinhafel, and others. Judgment for plaintiffs, and defendant Steinhafel appeals. Reversed and remanded, with directions.

This action was begun to set aside a certain conveyance in which Theresa Bohn was named as grantor and John E. Steinhafel, a grandnephew of the grantor, as grantee, on the ground that the grantor was mentally and physically incapable of making any disposition of her property, and upon the ground that said deed was not in fact delivered by the grantor to the grantee.

The court found that the deed was not induced by fraud or undue influence, that deceased was mentally competent at the time of the execution of the deed, but was of the opinion that there was not a valid delivery. Findings were made and judgment entered accordingly, adjudging the deed to be void, inoperative, and of no effect, from which judgment the defendant Steinhafel appeals.

Vinje, C. J., and Owen and Stevens, JJ., dissenting.H. H. Bodenstab, of Milwaukee, for appellant.

W. F. Schanen, of Port Washington, and C. E. Robinson and Frank Bucklin, both of West Bend (Martin L. Lueck, of Beaver Dam, of counsel), for respondents.

ROSENBERRY, J. (after stating the facts as above).

The undisputed testimony shows that on Saturday afternoon, November 4, 1922, Theresa Bohn, an elderly woman who had suffered a stroke of paralysis on November 3, 1922, was being cared for by a niece, Agnes Schneider. On that afternoon Mrs. Bohn told Miss Schneider to ascertain if they were alone, and then told her to go into the front bedroom and get a box, and told her where the key to the box was. After Miss Schneider had brought the box and the key, Theresa Bohn asked her to unlock it for her, which she did. Theresa Bohn then took out a bunch of papers which she had in the box with her left hand. She picked out the deed, which had been executed by her on July 27, 1922, but kept in her possession, handed it to Miss Schneider, and then said: “In case anything happens to me you see to it that the deed gets recorded.” She then put the other papers back in the box. Miss Schneider locked the box, returned it to its place, took the deed, and put it in the dresser drawer in the same bedroom in which Theresa Bohn was lying. At a later time, and without knowledge on the part of the grantor, she put the deed back in the box for safekeeping. On the following Sunday night, Theresa Bohn became unconscious and never again became conscious. About a week before the death of Theresa Bohn, one Kolber was a caller at the house. Miss Schneider informed him that in her opinion Theresa Bohn could live only a few days, and asked what should be done about the deed. After some hesitation, Mr. Kolber said that he would see, and went down to consult a Mr. Robinson, after which he called Miss Schneider on the telephone and told her to call up Mr. Steinhafel, have him come out and have the deed recorded. The witness was cross-examined, but adhered to her story, which, as the trial court indicated, was very fair and impartial. The deed was recorded four days before the death of Theresa Bohn.

[1][2][3] The trial court construed the words, “If anything happens to me, see that this deed gets recorded,” as meaning that, if she should shortly die from said stroke or the condition she was then in, the niece should then have the deed recorded. The court held this to be a conditional delivery, and therefore ineffective to vest title in Steinhafel. Looking to the language alone, there is support for that conclusion. Whether there was a delivery of the deed depends upon the intention of the grantor at the time it was placed in the hands of Agnes Schneider.

“The question as to whether any particular circumstance constitutes an efficient delivery of a deed or not turns on the intention of the parties. There need be only a parting with the paper by the grantor and the intent thereby to pass title and assent thereto by the grantee, though the instrument never comes to the latter's manual possession. His assent may be presumed by the mere beneficiary character of the transaction, subject to be rebutted by proof to the contrary.” Whiting v. Hoglund, 127 Wis. 135, 106 N. W. 391, 7 Ann. Cas. 224.

[4][5] In determining whether or not it was the intent of the grantor to make an effective delivery, all of the collateral facts and circumstances as well as the language of the grantor must be taken into account. Here the grantor had executed the deed some months prior to the time she placed it in the hands of Miss Schneider. She had kept it among her papers in a lock box completely under her control. She had suffered a stroke of paralysis from which she had only partially recovered. It is apparent, from the execution of the deed and its retention by her in proper form to be delivered, that she intended that the grantee should at some time become vested in the title to the property. On the afternoon in question she asked Miss Schneider to bring the papers, took the deed from the papers, gave...