Lauck v. Logan

• Decision Date: 23 November 1898
• Citation: 31 S.E. 986,45 W.Va. 251
• Parties: LAUCK et al. v. LOGAN.
• Court: West Virginia Supreme Court

31 S.E. 986

45 W.Va. 251

LAUCK et al. v. LOGAN.

Supreme Court of Appeals of West Virginia.

November 23, 1898

Submitted June 17, 1898

Syllabus by the Court.

1. The rule of construction for determining whether an instrument is a will or testamentary paper or a deed is that, if it passes a present interest, though the right to possession or enjoyment does not accrue till the death of the maker, it is a deed or contract, but, if it does not pass any interest or title whatever till his death, it is a will or testamentary paper, not a valid deed or contract. Section 5, c. 71, Code 1891, does not change this rule.

2. In determining whether an instrument is testamentary or deed or contract, courts do not allow language peculiar to either class of instrument, nor even the belief of the maker as to the character of the instrument, nor the name he gives it, to control inflexibly its construction; but, giving due weight to these circumstances, courts look further, and, weighing all the circumstances surrounding the parties and attending the execution of the instrument, give to it such construction as will effectuate the manifest intention of its maker.

3. An instrument in form and name a deed of conveyance acknowledged as such, and delivered to the grantee, whereby for consideration of five dollars and love and affection, the grantors "do grant with general warranty" a tract of land closing with the clause, "But it is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after the said William Logan shall depart this life, and not sooner," is a valid deed, not a testamentary paper, and confers a vested remainder on the grantee, to come into enjoyment on William Logan's death.

Section 1, c. 116, Code Va. 1849, taking effect 1st of July, 1850 abolished livery of seisin.

Appeal from circuit court, Wood county; A. I. Boreman, Judge.

Bill by Sarah E. Lauck and Laura L. Downing against L. N. Logan and others. From the decree, Logan appeals. Reversed.

Van Winkle & Ambler and George W. Neal, for appellant.

Harry P. Camden and W. N. Miller, for appellees.

BRANNON P.

William Logan and wife made a deed by which they conveyed to L. N Logan certain real estate in Parkersburg in consideration of five dollars paid, and love and affection. The granting part of the deed is, "Do grant, with general warranty, the property described." At the close is the clause, "But it is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after the said William Logan shall depart this life, and not sooner." This writing was signed, acknowledged, and delivered to L. N. Logan at its date. William Logan died, and the deed was put on record a few days after his death. Later, Sarah E. Lauck and Laura L. Downing brought suit in chancery against L. N. Logan to annual said deed, which resulted in a decree annulling it, from which L. N. Logan appeals. All said parties are children of William Logan. The plaintiffs rested their bill on three grounds, namely, the incompetency of William Logan to make the conveyance, undue influence used to induce him to make it, and invalidity of the conveyance itself. There is no basis under the evidence to sustain the charges of incompetency and undue influence. Indeed, virtually, they were not relied upon in argument. The sole question is the validity of the deed. It is claimed by plaintiff's that it is neither a deed nor a will effectual to convey the property; that it is not a deed valid to pass property, because it conveys no present estate, vests no title in the grantee in presenti (at present), but vests it in futuro (in future), and therefore is not a deed passing estate, but is testamentary in character, operating, like a will, to vest estate only at the death of its grantor; and that it is not a will because not shown to have been wholly written by Logan, or executed with witnesses, as required by law to make it a good will. I will remark that it is no objection that a deed vests estate in futuro, for that a deed may now do under our statute law; but the objection made against this deed is that it vests title only at the death of William Logan, and is thus not an act of alienation operative between living persons (inter vivos). In Roberts v. Coleman, 37 W.Va. 143, 16 S.E. 482, this court held that "an instrument transferring property intended to operate only after the death of its maker is testamentary in character, and cannot operate as an instrument inter vivos." Further examination upon the subject made by me in this case, and the able brief of appellees' counsel, confirm me in the opinion that the said statement of law is borne out by the decided weight of authority in many well-considered cases. I may safely say under them that, if a writing passes a present interest, though the right to its possession and enjoyment may not accrue till the grantor's death it is a good deed or contract; but, if it does not pass an interest or right till the death of the maker, it is a will or testamentary paper, and not good as a deed or contract. No matter that the paper is in name or form a deed, a bond, a note, or an agreement, if it is to pass title only at death, and vest no manner of estate till then, it is not a deed, bond, note, or agreement, but a will or testamentary paper; no matter what its maker called the paper, or believed it to be. What does it say? What is its effect in law? That is the question. The intention of the maker as to the character of the estate conveyed is the criterion by which the court determines whether it is a deed or will, and, if the intention gathered from the whole paper is that no estate is to pass until his death, it is a will, not a deed. It may confer a present vested estate, though the right of possession and enjoyment under it may be in the future, and it is a good deed; but if it vests no estate whatever till death it is a will. 29 Am. & Eng. Enc. Law, 145, 149; Burlington University v. Barrett, 92 Am.Dec. 376, note, 383; McBride v. McBride, 26 Grat. 476; Hazleton v. Reed (Kan. Sup.) 26 P. 450; Turner v. Scott, 51 Pa. St. 126; Deiz's Case, 50 N.Y. 88; Brewer v. Baxter, 5 Am.Rep. 530; Watkins v. Dean, 31 Am.Dec. 583; Babb v. Harrison, 70 Am.Dec. 203; Carey v. Dennis, 13 Md. 1. The eminent Judge Baldwin said in Pollock v. Glassell, 2 Grat. 457: "The very reason which prevents this assignment from taking effect as a deed requires that it should be treated as a will. A deed is an instrument which must operate inter vivos; and here the instrument cannot operate in that way, it having no legal effect till the death of the party by whom it was executed." The theory upon which this doctrine seems to rest is that the paper does just what a will does,--that is, it gives the property at the death of the maker, a thing which the law says can only be done by a will; and therefore, if of any effect, it is as a will, not as a paper operative between living people. The law says that property can be passed by the act of the parties only by the deed or, will, and when a paper is a will it is not a deed. That is the sole reason for denying it effect as a deed. If it were an open question, I would say that the law ought to give a paper not so executed as to be good as a will effect as a deed if good as a deed, and a paper so executed so as not to be good as a deed effect as a will if good as a will. If A. grant land to B., reserving a life estate, all agree that the deed is valid, because it instantly passes a vested estate to B. in remainder, only postponing its possession and enjoyment till the death of A. (Hurst v. Hurst, 7 W. Va. 289; Trawick v. Davis, 85 Ala. 342, 5 So. 83); and yet if A. "doth grant a certain tract of land to B. at A.'s death," it would be no deed, because passing no title of estate till A.'s death. How technical the difference! How unsubstantial! In both the grantor means the same thing,--that is, to reserve the possession and enjoyment in himself during life, and then give them over to B.,--and his intent ought to prevail. If a man make a deed, and deliver it to another in escrow, to be delivered to the grantee after the death of the grantor, it is a good deed, though we know that a deed is ineffective without delivery. The courts struggle to make the act execute the intent. Lang v. Smith, 37 W.Va. 734, 17 S.E. 213; Davis v. Ellis, 39 W.Va. 230, 19 S.E. 399. But the rule stated above, though seeming to me to be unreasonable, is intrenched behind many decisions through many years, and we cannot repeal it, especially as it is a rule of property, not a mere rule of court practice. But, as it defeats intention, it should be applied only in the plainest cases. Such is the general rule. Its application is often difficult. Each instrument must stand on its own feet, be judged by its language and circumstances. In the first place, in the construction of both deeds and wills we must seek the intent of their makers; and in doing so the whole paper, and all its parts, must be considered together. Hurst v. Hurst, 7 W. Va. 289, 339. "In determining whether the paper is testament or deed or contract, courts do not allow the use of language peculiar to either class of instruments, nor even the belief of the maker as to the character of the instrument, to control inflexibly the construction; but, giving due weight to these circumstances, courts look further, and, weighing all the language, as well as facts and circumstances surrounding the parties attending the execution of the instrument, give it such construction as will effectuate the manifest intention of the maker." Burlington University v. Barrett, 92 Am.Dec. 376.

Now let us look into the deed before us. Without the...