Nolan v. Otney

Citation89 P. 690,75 Kan. 311
Decision Date09 March 1907
Docket Number14,896
PartiesBRIDGET NOLAN et al. v. JOSEPH OTNEY et al
CourtUnited States State Supreme Court of Kansas

89 P. 690

75 Kan. 311


No. 14,896

Supreme Court of Kansas

March 9, 1907

Decided January, 1907.

Error from Washington district court; WILLIAM T. DILLON, judge.

Judgment affirmed.



1. CONVEYANCES--Deed Delivered to a Custodian--Enjoyment Postponed until after Grantor's Death. Where an instrument, executed and placed in the hands of a third person to be delivered to the grantee on the death of the grantor, being otherwise in the form of an ordinary warranty deed, provides that it shall not take effect until the death of the grantor, such provision will, in the absence of some controlling reason to the contrary, be construed to mean that the title is to vest at once, only the enjoyment being postponed until the death of the grantor.

2. CONVEYANCES--Grantee to Care for Grantor During Latter's Lifetime. The recital in such a deed that it is understood that the grantee is to care for the grantor during the remainder of his life is not inconsistent with such an interpretation.

3. CONVEYANCES--Control Relinquished by Grantor--Custodian Directed to Hold Instrument until Grantee Performs Conditions. Where the owner of land executes an instrument in the form of a deed, and places it beyond recall in the hands of a third person to be delivered at his death, the delivery thereof, if otherwise sufficient, will not be held ineffectual at the instance of the heirs of the grantor merely because the instructions given to the custodian included a direction to hold the instrument until the grantee had performed certain conditions, all of which were capable of performance within the lifetime of the grantor.

George W. Day, Charles Smith, and Frederick J. Chase, for plaintiffs in error.

E. A. Berry, J. W. Rector, and Gregg & Gregg, for defendants in error.

MASON, J. GREENE, BURCH, SMITH, PORTER, GRAVES, JJ., concurring. JOHNSTON, C. J., concurs in the judgment, but not in all said in the opinion.



Martin Dolan executed an instrument purporting to be a warranty deed conveying property to Joseph Otney, but containing these words immediately [75 Kan. 312] following the granting clause, which was in the usual form:

"This deed is made with the understanding that the same is not to take effect or be in force until the death of the grantor, and upon the death of the grantor is to take effect and at said time to vest in the said grantee the absolute title in fee simple of the property above described.

"And it is further understood that the said Joseph Otney is to take care of and maintain the said M. Dolan, a single man, during the balance of his natural life."

The instrument was placed in the hands of a third person, to be delivered after the grantor's death to the grantee. Dolan died and the delivery was made. The heirs brought a suit against Otney to have the deed set aside. The court sustained a demurrer to their evidence, and they prosecute error.

Some months before his death Dolan handed the deed to one John Grimes, with directions after his death to give it to Otney. On the same occasion, however, Dolan said to Grimes: "Of course, if I ask you for the deed you would give it to me." Grimes answered that he certainly would, and Dolan responded: "Martin will never ask for it." The day before he died, however, he gave Grimes instructions in the presence of Otney to deliver the deed after his death, provided Otney should haul some corn, pay a sum of money, and give a note for $ 100. These conditions were fully complied with, and, after the death of Dolan, Grimes handed the deed to Otney.

The question which has been discussed by counsel is whether the language of the deed, in connection with the circumstances attending its delivery, shows the grantor to have intended that no title should pass until his death, in which case it would be testamentary in its character and therefore inoperative. The plaintiffs in error rely largely upon the first paragraph above quoted as having this effect, arguing that such explicit language admits of no other construction. If we assume [75 Kan. 313] that the words employed were used with technical exactness it would be difficult or impossible to escape from this conclusion. Nevertheless we are persuaded that what the grantor intended was no more than that the possession and enjoyment of the property by the grantee should be postponed until his death. This view can be justified under the authorities by reason of the place in the deed in which the provision occurs. As it follows the granting clause it must be deemed not to overthrow it. ( Durand v. Higgins, 67 Kan. 110, 72 P. 567.) We are not disposed, however, to attach controlling importance to this consideration. The real intent of the grantor being the object of our search, the inquiry is, not what do his words mean in strict legal contemplation, but in what sense did he use them--what idea did he employ them to convey. The decisions are not in harmony on the subject, but a well-defined tendency clearly appears in the more recent cases to uphold the deed if possible, and if necessary to that end to regard it as speaking with colloquial freedom rather than with formal accuracy.

"In deeds the first clause prevails generally over the later, and surely a later clause of mere further assurance would not emasculate and predominate over the prior granting clause, but just the reverse. As to wills the rule has ever been that, regardless of form or orderly parts, we must look at the real intention; but this has not been the case [89 P. 691] in the construction of deeds. Deeds have orderly parts, technical words of precise legal signification, and in times gone by those parts and words, and the strict rule of construction of them, have been rigorously observed, often defeating the manifest intention. Modern construction, however, has leaned towards the intention, overriding mere form and technical words, and nowadays it may be said that the intention must rule the construction in deeds as well as in wills." (Uhl v. Railroad Co., 51 W.Va. 106, 114, 41 S.E. 340.)

"There is a tendency, however, in the modern decisions to uphold conveyances when not clearly repugnant to some well-defined rule of law." (Love v. Blauw, [75 Kan. 314] 61 Kan. 496, 501, 59 P. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334.)

"The original tendency was toward holding that papers indicating an intention to postpone enjoyment by the persons claiming to be grantees till after the death of the persons executing the papers should be classed as wills. This tendency in' time yielded to another, namely, that it was the sounder policy in a case of doubt to declare that the instrument was a deed and thus make it effectual, when holding it to be testamentary would, for want of the requisite number of witnesses, render it nugatory. The true test, of course, is the intention of the maker, which is to be gathered from the terms of the paper. . . . Why should even the most ignorant man adopt the form of a deed if he intended to make a will? Almost any person, however illiterate or uninformed, would, if he desired to execute a real will, adopt for expressing his purpose language altogether unsuited for a present conveyance. Where the form of a deed is actually employed, such phrases as, 'after my death,' 'vest at my death,' 'take effect at my death,' and the like, may well be construed as merely designed to postpone possession or enjoyment by the grantee till after the death of the grantor." (West v. Wright, 115 Ga. 277, 41 S.E. 602.)

The syllabus of the case last cited reads:

"An instrument attested as a deed, and in all respects in the form of a deed, should, though it contains the...

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