Masquart v. Dick

• Citation: 310 P.2d 742,210 Or. 459
• Parties: Charles MASQUART, George Masquart, Nick Mason, Clifton E. Brewer, Bessie Prother, Claude N. Brewer, Warren C. Brewer, Nellie Payne, Florence Oades, Charles Howell, Nellie Mae Fryman, Eva Norris, Arthur Howell, Asa Howell, Benjamin Howell, and Mildred Ellett, Respondents, v. William G. DICK, Executor of the Estate of Joseph A. Masquart, deceased, and the Shriners' Hospitals for Crippled Children, a Colorado corporation, Appellants.
• Decision Date: 17 April 1957
• Court: Supreme Court of Oregon

Page 742

310 P.2d 742

210 Or. 459

Charles MASQUART, George Masquart, Nick Mason, Clifton E Brewer, Bessie Prother, Claude N. Brewer, Warren C. Brewer Nellie Payne, Florence Oades, Charles Howell, Nellie Mae Fryman, Eva Norris, Arthur Howell, Asa Howell, Benjamin Howell, and Mildred Ellett, Respondents, v. William G. DICK, Executor of the Estate of Joseph A Masquart, deceased, and the Shriners' Hospitals for Crippled Children, a Colorado corporation, Appellants.

Supreme Court of Oregon.

Argued and Submitted Oct. 29, 1956.

Decided April 17, 1957.

Clarence D. Phillips, Portland, argued the cause for appellant Shriners' Hospitals for Crippled Children. On the briefs were Phillips, Coughlin, Buell & Phillips, Portland.

Sam Van Vactor, The Dalles, argued the cause for appellant William G. Dick, executor. On the brief were Dick & Dick and Brown & Van Vactor, The Dalles.

Edwin J. Welsh, Portland, argued the cause and filed a brief for respondents.

Before WARNER ^*, C. J., and ROSSMAN, LUSK, PERRY ^** and McALLISTER, JJ.

LUSK, Justice.

This suit was commenced as a suit for the partition of real property, and developed into a controversy over the ownership of such property. The decree was for the plaintiffs and the defendants have appealed.

Plaintiffs are heirs at law of John Masquart, deceased. The defendants are the executor of the estate of Joseph A. Masquart, deceased, who was a brother of John Masquart, and Shriners' Hospitals for Crippled Children, a Colorado corporation, the beneficiary under Joseph's last will and testament.

Prior to January 14, 1943, the Masquart brothers, who had never married, held title as tenants in common to four parcels of land in Wasco County, Oregon, referred to in the record as Parcels A, B, C and E. On that day they executed reciprocal general warranty deeds to these lands, Joseph conveying his undivided one-half interest to John, and John conveying his one-half undivided interest to Joseph. Each of the deeds expressed a consideration of $1. They were acknowledged, but not witnessed. They were executed in the office of the late Frank G. Dick, a practicing attorney at The Dalles, and were left with Mr. Dick with oral instructions of the grantors to hold them until the death of one of the grantors, whereupon the deed to the survivor was to be placed of record. The record is not clear as to what was to be done with the other deed in those circumstances. Neither deed was to be recalled during the lifetime of the brothers without their mutual consent. The deeds were placed in an envelope by Mr. Dick and kept in the office safe until the death of John on January 13, 1950. In the meantime the brothers continued in the possession and control of the lands in the same manner as before the execution of the deeds, except as to Parcel E, which, on June 10, 1943, they conveyed to a third party.

John died intestate. Mr. Frank G. Dick predeceased him, and the evidence of the instructions which accompanied the deposit of the deeds was given by his son and law partner, William G. Dick, who had been informed of the transaction by his father, and after his father's death was advised by the Masquart brothers that his understanding of the instructions was correct. After John's death William G. Dick caused his deed to be placed of record and destroyed the other deed. Joseph died on January 31, 1953, leaving a last will and testament executed on January 23, 1950, by which he devised and bequeathed all his property to the defendant Shriners' Hospitals for Crippled Children. In the meantime, however, on October 18, 1951, Joseph had conveyed Parcel C to a third party and used a portion of the proceeds received from this sale to purchase certain real property in Wasco County referred to in the record as Parcel D.

On January 6, 1954, the plaintiffs commenced this suit. Their contention is that at the time of his death John was the owner of an undivided one-half interest in Parcels A, B and C, and that they succeeded on his death to ownership of a 5/12 interest in the lands so designated while Joseph in like manner inherited from John a 1/12 interest. The defendants contend, on the other hand, that the deed from John to Joseph of January 10, 1943, operated as a present conveyance to Joseph of John's interest in the lands, and that on John's death Joseph came into the full enjoyment of that interest and was thereafter sole owner of all the lands involved. The defendants further contend, as alleged in their answers, that the brothers entered into an oral agreement whereby the first to die would leave all his property to the survivor, and that the survivor would at his death give, devise and bequeath all his property to the Shriners' Hospitals for Crippled Children, that the brothers executed the reciprocal deeds in January, 1943, and gave the instructions concerning them to effectuate this agreement, and that pursuant thereto Joseph made and executed his last will and testament, and 'that pursuant to the agreement the said real property was constructively held and resulted in a trust by the said John Masquart and Joseph Masquart for the use and benefit of the Shriners' Hospital for Crippled Children in Portland, Oregon * * *.'

The evidence of the alleged agreement that the property should ultimately be willed to the Shriners' Hospitals is concededly meager. It consisted of statements made by either one or both of the brothers to several witnesses. The witness Leta Richardson, a neighbor of John and Joseph, testified that one evening in 1945 in her living room John said to her, 'Why do you work so hard?' and she said, "Well, why do you and Joe; you never go no place, you never do anything, what are you going to do with the money after you are dead?', and they said their money is all fixed, it goes to the Shrine Hospital.' Other witnesses told of similar conversations after 1945, but there is no evidence that such an agreement was in existence prior to 1945.

William G. Dick testified that in 1950 he drew Joseph's will for him, and that on one occasion in the year 1952, after they had obtained quitclaim deeds from various people to a portion of Joseph's land, he suggested to Joseph that he might wish to leave to each of these people who had cooperated in giving these deeds a small sum of money, but that Joseph had responded

'adamantly and firmly in the negative on that proposition stating to me that he and John had an understanding, that they had agreed that the survivor would take all of their property and upon his death give it to the Shrine Hospital for Crippled Children in Portland and that was my first, my first firm knowledge of that agreement between them and as I now recall that is the only time that we got into it in detail.'

On this subject it is said in the executor's brief:

'* * * Some time thereafter [i. e., after the deeds were deposited], probably in 1945 or 1946, John and Joseph Masquart orally modified the agreement by adding the requirement that the survivor would will all of his property to the Shriners' Hospital for Crippled Children in Portland, Oregon.'

The first question is upon the effect to be given to the deed from John to Joseph. Was it testamentary in character and, therefore, inoperative because not executed in accordance with the statute of wills; or was it a present conveyance of an interest in land, to wit, the right in Joseph to succeed on the death of John to the full and complete ownership in fee of Joseph's interest in lands theretofore held by the brothers as tenants in common?

The law upon this subject was enunciated by Mr. Justice Robert S. Bean, speaking for the court, in Hoffmire v. Martin, 29 Or. 240, 242, 45 P. 754, as follows:

'* * * The question as to when a deed, executed and deposited with a stranger, to be delivered to the grantee upon the death of the grantor, is effectual to pass title, has been the subject of much judicial controversy; but it is now substantially agreed that its solution depends on whether the grantor intends to and does retain dominion and control over it after such delivery, or parts with the possession and control of it absolutely at the time of the delivery. In the former case, by the great weight of authority,--although the decisions are not entirely harmonious,--there is no sufficient delivery, and the deed passes nothing. [Citing cases.] But if the grantor parts with all dominion and control over the deed, reserving no right to recall it or alter its provisions, it is a good delivery, and the grantee will, on the death of the grantor, succeed to the title.'

To the same effect see: Jobse v. U. S. National Bank, 142 Or. 692, 21 P.2d 221; Norton v. Norton, 105 Or. 651, 209 P. 1048; Dieckman v. Jaeger, 87 Or. 392, 170 P. 727; Foulkes v. Sengstacken, 83 Or. 118, 130, 158 P. 952, 163 P. 311; Thrush v. Thrush, 63 Or. 143, 125 P. 267, 126 P. 994; Foote v. Lichty, 60 Or. 542, 120 P. 398; Reeder v. Reeder, 50 Or. 204, 210, 91 P. 1075; Payne v. Hallgarth, 33 Or. 430, 54 P. 162. The Oregon decisions are in accord with those in most of the other states of the union. See 26 C.J.S. Deeds § 46, p. 699; 4 Tiffany, Real Property (3d ed.) 246, § 1054; 7 Thompson on Real Property (Perm. ed.) 582, § 4127; 2 Walsh, Commentaries on the Law of Real Property 472, § 214; III American Law of Real Property 318, § 12.67. In a few states it has been held that a reservation by the grantor of the right to recall the deed does not affect its validity if the right is not exercised during the lifetime of the grantor. 16 Am.Jur. 520, Deeds § 145. The Iowa court formerly so held, but overruled its prior decisions in Orris v. Whipple, 224 Iowa 1157, 280 N.W. 617, 129 A.L.R. 1.

The question whether a deed has been delivered is a 'question of fact rather than of law, depending upon the intent of the grantor to vest an estate in the grantee.' Jobse v. U. S. National Bank, supra, 142 Or. at page 696, 21 P.2d at page 222. And the weight of authority...