Mason's Guardian v. Soaper

• Decision Date: 24 January 1930
• Citation: 232 Ky. 525
• Parties: Mason's Guardian et al. v. Soaper et al.
• Court: United States State Supreme Court — District of Kentucky

232 Ky. 525

Mason's Guardian et al. v. Soaper et al.

Court of Appeals of Kentucky.

Decided January 24, 1930.

1. Wills. — If grantor intended deed to take place of will in making testamentary provision for grantees, and deed was conditionally delivered and intended to take effect only after grantor's death, deed would be void, where formalities required for execution of will were not followed.

2. Wills. — Whether instrument is testamentary in character depends upon intention of maker.

3. Deeds. — Where deed is delivered to third person with direction to hold it during grantor's lifetime and upon his death to deliver it to grantee, and grantor at same time intended to part forever with all right to recall or control deed, delivery is valid and passes present interest, though enjoyment thereof is postponed.

4. Deeds. — Where grantor, in lieu of provision in will, executed deed to nephew and niece, had his attorney deliver it to nephew, who gave it to his lawyer, who kept it until grantor's death, and

delivered it to nephew and had it recorded, but grantor gave no directions regarding recording, deed held delivered during grantor's lifetime and to convey present interest to grantee.

5. Descent and Distribution. — Where deed to nephew and niece was delivered before grantor's death and conveyed present interest at time of delivery, nephew and niece, though deed was made in lieu of provision in will, held not required to contribute ratably with devisees to payment of testator's general debts.

Appeal from Henderson Circuit Court.

JOHN C. WORSHAM for appellants.

HENSON & TAYLOR for appellees.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

This appeal involves the right of the devisees under the will of Richard H. Soaper to require the grantees under a deed executed by the testator during his lifetime to contribute ratably with the devisees under the will to the payment of the testator's debts.

Richard H. Soaper died testate on January 1, 1926. He had never been married and his estate was left to his brothers and sisters and their children. In 1909 he made a will by the thirteenth clause of which he devised 500 acres of land, known as the "Anderson Farm," to his nephew and niece, William H. Soaper and the latter's wife, Lucy S. Soaper, for life, and upon the death of either to the survivor, and upon the death of the survivor to their son, Richard H. Soaper, Jr. On February 23, 1921, he executed a deed conveying to William H. Soaper and Lucy S. Soaper 552.93 acres of land known as the "Home Farm." This land was conveyed to them for life, with remainder to their children. The deed was not recorded until after the grantor's death nearly five years later. The deed contains this clause: "But this deed is in lieu and instead of any provision that I have made for my said nephew, William H. Soaper and his wife, my niece, Lucy S. Soaper, or either of them in my will bearing date of February 7, 1909." On February 24, 1921, the day after the deed was executed, he executed a codicil to his will, by the fifth clause of which he annulled the thirteenth clause in the original will in these words: "5th. By the 13th clause of my said will I give and devise to William H. Soaper and his wife, my niece, Lucy S. Soaper, certain property therein described. I have since provided for my said nephew and niece by deed and I therefore cancel and annul the said 13th clause of my said original will."

At the time the codicil and deed were executed, Richard H. Soaper owned an estate valued by him at more than $500,000. He was out of debt, and had a considerable sum in cash. At the time of his death he was heavily in debt, and in order to pay the estate's indebtedness it will be necessary to abate each of the testator's specific legacies and devises.

The executor filed suit for the settlement of its decedent's estate and alleged that it would be necessary to sell a portion of the real and personal property devised and bequeathed to pay its decedent's debts. All of the testator's devisees and legatees and William H. Soaper and his children, grantees under the deed, were made parties. Lucy S. Soaper had died prior to the death of the testator. The appellants, who were testator's devisees and legatees, made their answer to the petition a cross-action against William H. Soaper and his children, and asked that the property conveyed to them by the deed be adjudged ratably liable with the decedent's property disposed of by will for the payment of his debts. The lower court adjudged that the property conveyed to William H. Soaper and Lucy S. Soaper and their children was not liable for any contribution to the payment of decedent's debts, and the legatees and devisees under the will have appealed.

No direct attack is made on the validity of the deed, but appellants insist that since the deed was voluntary and on the same plane with the testamentary gifts, the property conveyed should contribute ratably with the property bequeathed and devised to the payment of decedent's debts. Appellants contend that the testator intended the deed, so far as the grantees were concerned, to take the place of his will in making testamentary provision for them; that it was of a testamentary nature, was not unconditionally delivered, and was intended to take effect only after his death.

If this contention is sound, then the deed is void, as the formalities required for the execution of a will were not followed. Rawlings v. McRoberts, 95 Ky. 346, 25 S. W. 601, 15 Ky. Law Rep. 771; Ison v. Halcomb, 136 Ky. 523, 124 S.W. 813. Cf. Parker v. Archibald, 212 Ky. 567, 279 S.W. 979; Siter v. Hall, 220 Ky. 43, 294 S.W. 767.

Whether or not an instrument is testamentary in character depends upon the intention of the maker. The general rule almost universally followed is that, when a deed is delivered to a third person or depositary with the direction to the latter to hold the deed during the lifetime of the grantor, and upon the latter's death to deliver it to the grantee, and the grantor intended at the time of the delivery to the third person or depositary to part forever with all right to recall or control the deed, such delivery is effectual and valid and passes a present interest in the property, though the enjoyment of it be postponed. Colyer v. Hyden, 94 Ky. 180, 21 S.W. 868, 15 Ky. Law Rep. 101; Haydon v. Easter, 24 S.W. 626, 15 Ky. Law Rep. 597; Nuckols v. Stone, 120 Ky. 631, 87 S. W. 799, 27 Ky. Law Rep. 1043; Kirby v. Hulett, 174 Ky. 257, 192 S.W. 63; Loomis v. Loomis, 178 Mich. 221, 144 N.W. 552; Horn v. Horn (Neb.) 224 N.W. 857; Kolber v. Steinhafel, 190 Wis. 468, 209 N.W. 595; 26 Harvard Law Review, 565; Snodgrass v. Snodgrass, 107 Okl. 140, 231 P. 237, 52 A.L.R. 1213. See annotation to last-cited case in 52 A.L.R. 1222.

A correct statement of the law will be found in 18 C.J. 208, where it is said: "The delivery of a deed by the grantor to a third person to be held by him and delivered to the grantee upon the grantor's death will operate as a valid delivery, where there is no reservation on the part of the latter of any control over the instrument, and under such circumstances it is usually held that the deed takes effect from the first delivery."

In Standiford v. Standiford, 97 Mo. 231, 10 S.W. 836, 3 L.R.A. 299, a deed from a father to his minor child was handed to a third party, who was directed...