LaWrence v. Children's Home

• Decision Date: 11 April 1939
• Citation: 285 N.W. 415,231 Wis. 44
• Parties: LAWRENCE v. CHILDREN'S HOME AND AID SOC. et al.
• Court: Wisconsin Supreme Court

231 Wis. 44

285 N.W. 415

LAWRENCE

v.CHILDREN'S HOME AND AID SOC. et al.

Supreme Court of Wisconsin.

April 11, 1939.

Appeal from a judgment of the County Court of Richland County; L. H. Bancroft, Judge.

Affirmed.

In the action, commenced April 27, 1938, by the plaintiff, Floyd W. Lawrence, as administrator of the estate of Sarah Davis, deceased, against the defendants, Children's Home and Aid Society, a Wisconsin corporation, and Robert Barry, it was sought to have a certain deed executed by Sarah Davis in her lifetime, declared void and delivered into court for cancellation. At the time of the commencement of the action, the deed was in the possession of the defendant Barry, he having had it recorded and being about to deliver it to the society pursuant to oral instructions given him by the deceased. Trial was had to the court upon stipulated facts. From a judgment in favor of the defendants, entered July 19, 1938, the plaintiff appealed.Franklin E. Fogo, of Richland Center, for appellant.

Brindley & Brewer, of Richland Center (Lecher, Michael, Whyte & Spohn and Thomas S. Stone, all of Milwaukee, of counsel), for respondents.

NELSON, Justice.

So many of the stipulated facts as are necessary to an understanding of the nature of this controversy may be summarized as follows: On or about June 24, 1925, at the city of Richland Center, Sarah Davis, hereafter called the deceased, who was then of sound mind, freely, voluntarily and as her own act, made and executed a warranty deed in which certain premises which constituted her homestead were described and in which the defendant society was named as grantee. At that time the deceased caused a copy of said deed to be made. The original deed was deposited in a safety deposit box then rented by her from the Richland County Bank. On June 27, 1925, David A. Richardson, the superintendent of the Society for the Madison District, was in the city of Richland Center. While there he was notified by a Mr. Craig, the president of the Richland County Bank, that the deceased was arranging to make a gift of her home to the society. Mr. Richardson thereafter called on the deceased and discussed her plans regarding her homestead with her. She told him that she wished to donate her homestead to the society; that she was making out a deed of it to the society; that the deed was to be put in her safety deposit box; that the deed was to become effective at her death and that it was to be taken out at her death. During the interview she handed the copy of the original deed to Mr. Richardson who forwarded it to Mr. Hill, the superintendent of the society. The original deed, deposited by the deceased in her safety deposit box, remained there until after her death. In January, 1938, the deceased, who was then living alone in her home, sustained a fall. She was, at that time, eighty-eight years of age. From the time of her fall until her death, which occurred on February 8, 1938, she was confined to her bed. On or about January 20, 1938, believing that her last sickness was at hand and that death was imminent, she called to her bedside the defendant, her brother, and gave him the key to the safety deposit box. At the time of delivering the key to Barry she told him that she had made a deed of her home to the society; that the deed was in her safety deposit box in the Richland County Bank and that upon her death he was to open the box, take the deed therefrom, have it recorded and then deliver it to the society. The key so delivered to Mr. Barry remained in his sole and exclusive possession until after her death. Sarah Davis, after delivering the key to Mr. Barry and giving him the instructions just hereinbefore recited, continued to grow more feeble until the day of her death. At the time of her death, the deceased was a widow having no child and no one immediately dependent upon her for support. Promptly after her death the defendant Barry went to the bank, opened the lock box, procured the deed in question and delivered it to the register of deeds for record. The deed was recorded on February 12, 1938. Upon its being recorded, Barry intended to deliver the deed to the defendant society pursuant to the instructions given him, but was prevented from so doing by a restraining order issued out of the county court. Said order was thereafter vacated upon an agreement entered into between Barry and the administrator that the former would not deliver the deed until the rights of the parties had been determined in the action which the administrator then contemplated bringing. At the time the deceased delivered the key to the defendant Barry, and gave him the instructions respecting the deed, she was under no restraint or duress and her acts were free and voluntary. The premises described in the deed were free from any lien or incumbrance and her personal property and estate are sufficient to pay all claims, funeral expenses and expenses of administration.

The court concluded that the society was entitled to have the deed delivered to it by the defendant Barry, and that upon the delivery of the deed, the society would have a fee simple title to the premises described therein. The judgment entered so, provided.

While conceding that the deceased clearly intended that the deed in question should promptly be delivered to the society after her death, it is contended by the administrator that since the deed contained the following clause: “This deed shall become operative and in effect at the death of the grantor,” the transaction amounted merely to an attempted testamentary disposition of her real estate which was wholly invalid because she did not comply with the requirements of sec. 238.06, Stats., relating to the making of wills. It is further contended that since the intention of the deceased was clearly expressed in her deed parol evidence is inadmissible to change that clear and unambiguous intention so expressed. The administrator further contends that since no delivery of the deed was made in her lifetime, and since she did not intend the deed to have any present effect in her lifetime, Barry's agency authority to deliver the deed terminated upon her death.

If the deceased, after executing the deed in 1925, and placing it in her safety deposit box, had permitted it to remain there without turning the key over to Barry and instructing him upon her death to open the box, to take out the deed and after having it recorded, to deliver it to the society, the contention that the transaction amounted to nothing but an attempt to make a testamentary disposition would have merit. However, it clearly appears from the stipulation of facts that she did turn over the key to her safety deposit box to her brother, the defendant Barry, and at that time told him “that upon her death, he was to open the box, take the deed therefrom, have it recorded and then deliver it to the said Children's Home and Aid Society.”

It has been held in numerous cases where a grantor had executed a deed and placed it in the custody of a third person with instructions to deliver it to the grantee therein named, upon the...