Papke v. Pearson
| Decision Date | 17 June 1938 |
| Docket Number | No. 31684.,31684. |
| Citation | 203 Minn. 130,280 N.W. 183 |
| Parties | PAPKE v. PEARSON. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; L. W. Youngdahl, Judge.
Suit by Gust Papke against Anna Pearson, as administratrix of the estate of Rose Tillman, deceased, to reform a deed conveying an undivided one-half of his home to Rose Tillman. From an adverse order, the defendant appeals.
Order modified and, as so modified, affirmed.
W. L. Hursh and Homer R. Kinney, both of Minneapolis, for appellant.
Child & Child, of Minneapolis, for respondent.
In February, 1929, plaintiff, who was then 63 years of age and employed by a railroad, executed a deed conveying an undivided one-half of his home to Rose Stella Tillman, who lived in his home with her niece, the defendant. Miss Tillman died in 1933. Plaintiff sues to reform the deed so as to create a joint tenancy between Miss Tillman and himself and to cancel the deed as reformed. Miss Tillman made arrangements for the drawing of the deed. She went to a stenographer in a real estate man's office and told her that plaintiff wanted to give her one-half of his property and to draw a deed for that purpose. The stenographer drew a warranty deed by which plaintiff conveyed an undivided one-half interest in the property to Miss Tillman. Plaintiff came to the office later and signed it. The testimony of plaintiff and Miss Tillman's statements to the stenographer and the real estate man show that the intention of the parties was that she should have the property if plaintiff died and that he should have it if she should die. Plaintiff testified "those were my only intentions." Miss Tillman stated that the intention was that the deed should grant her title and possession after plaintiff's death, and when told that the deed was not so drawn, stated that it was not what the parties wanted. Plaintiff had a room in the house and boarded with Miss Tillman when he was in town. He expected to continue in the possession and control of the premises and to have Miss Tillman and her niece live with him. There is no testimony to show that he intended to convey to Miss Tillman any right of possession or control during his lifetime, or that either plaintiff or Miss Tillman ever referred to a joint tenancy or any other particular estate in terms to describe the estate which they intended to create.
Defendant did not testify and submitted the case upon the evidence of plaintiff and his witnesses. Findings were made that the parties intended to create a joint tenancy but that through mistake the plaintiff by warranty deed conveyed an undivided one-half of the property so as to make the parties tenants in common instead of joint tenants and as a conclusion of law the court ordered that the deed be reformed so as to express the intention to create a joint tenancy and that as reformed it be cancelled.
1. Defendant urges that it was error to permit plaintiff to testify as to his intention in making the deed. This alleged error cannot be reviewed on appeal because the admission of the evidence was not excepted to on the trial nor assigned as error in the motion for new trial. Dunnell, Minn. Dig.(2 ed. & Supps.) § 388a; Cincinnati Time Recorder Co. v. Loe, 152 Minn. 374, 188 N.W. 1011.
2. The admissions of Miss Tillman that the parties intended to provide only for survivorship and that the deed executed by plaintiff did not express their intention were properly received. Hayes v. Hayes, 126 Minn. 389, 148 N.W. 125; Dunnell, Minn.Dig.(2 ed. & Supps.) §§ 3306, 3409; 2 Wigmore on Evidence, § 1048.
Nor is such evidence objectionable upon other grounds urged by defendant. It is contended that the evidence relates only to the secret and unexpressed intention of plaintiff but this is overcome by the testimony as to Miss Tillman's admissions relating to the intention of both plaintiff and herself. Further, it is urged that the testimony relates not to the time of the execution of the deed but to the desires of the parties subsequent thereto. It is quite clear from the testimony that Miss Tillman's admissions relate to the intention of the parties prior to and contemporaneous with the execution of the deed. It is also claimed that there is no evidence to show a preliminary or antecedent agreement which the deed failed to express. This contention is without merit since the evidence relates to the intention of the parties prior to and at the time of the execution of the deed.
3. The contention that the evidence does not sustain a finding of joint tenancy must be sustained. It is not necessary now to decide whether plaintiff could by conveyance to Miss Tillman create in the parties an estate in joint tenancy. Some cases hold that this cannot be done upon the ground that a party cannot make a valid deed to himself. Deslauriers v. Senesac, 331 Ill. 437, 163 N.E. 327, 62 A.L.R. 511. Others disapprove this doctrine and hold that the grantor may constitute himself a joint tenant with his grantee; Edmonds v. Commissioner of Internal Revenue, 9 Cir., 90 F.2d 14, disapproving Deslauriers v. Senesac. supra; In re Horler's Estate, 180 App.Div. 608, 168 N.Y.S. 221; that husband and wife may by deed from one to both create an estate by the entirety, Matter of Klatzl's Estate, 216 N.Y. 83, 110 N.E. 181; Boehringer v. Schmid, 133 Misc. 236, 232 N.Y.S. 360, affirmed 254 N.Y. 355, 173 N.E. 220, comment 13 Minn.L.R. 618; and that the parties may create an estate in joint tenancy by mere agreement, Murphy v. Whitney, 140 N.Y. 541, 35 N.E. 930, 24 L.R.A. 123. But since decision on this point is not necessary, we do not decide the question. Forney v. Farmers' Mutual Fire Ins. Co., 181 Minn. 8. 231 N.W. 401.
A joint tenancy does not result merely because of the right of survivorship. Some authorities hold that a conveyance to two or more persons with right of survivorship creates a joint tenancy. Weber v. Nedin 210 Wis. 39, 242 N.W. 487, 246 N.W. 307, 686; 18 Minn.L.R. 79. Laying aside the fact that this is not a deed to two or more persons, such authorities should not be followed. The language in Weber v. Nedin, supra (246 N.W. page 309), that "survivorship is an incident of an estate in joint tenancy and of no other under our law" and similar expressions in other cases give support to the view that such survivorship necessarily means a joint tenancy. They are not an accurate statement of the rule of law applicable to such a situation. Estates by the entirety, which have been abolished in Minnesota and Wisconsin, have the right of survivorship as an incident. Wilson v. Wilson, 43 Minn. 398, 45 N.W. 710. Estates may be held by tenants in common with the benefit of survivorship. 1 Chitty's Blackstone, Book II, p. 156, § 194, note 27; Freeman on Cotenancy and Partition, 2 ed., § 12; Taaffe v. Conmee [1862] 10 H.L. 64; Doe d. Borwell v. Abey [1813] 1 Maule & Selwyn 428; Haddelsey v. Adams [1856] 22 Beavan 266; Truesdell v. White, 13 Bush 616, 76 Ky. 616. There are other situations in which the right of survivorship is allowed without a joint tenancy. Dutton v. Buckley, 116 Or. 661, 242 P. 626; Finch v. Haynes, 144 Mich. 352, 107 N.W. 910, 115 Am.St.Rep. 477; Earle and McNier v. Dawes, 3 Md. Ch. 230; McKee v. Marshall, 5 S.W. 415, 9 Ky.Law Rep. 461; Bartholomew v. Muzzy, 61 Conn. 387, 23 A. 604, 29 Am.St.Rep. 206; Arnold v. Jack's Executors, 24 Pa. 57; Redemptorist Fathers v. Lawler, 205 Pa. 24, 54 A. 487.
What the parties really contemplated was a grant to Miss Tillman of a contingent future estate in fee simple. She was to have the property upon the contingency that she survived plaintiff. Estates in expectancy are by Mason's Minn.St.1927, §§ 8032-8072, divided into future estates and reversions. Section 8042 defines reversions as they were at common law. Section 8043 defines future estates as follows:
Included in the statutory definitions of future estates are all limitations which at common law were denominated remainders, vested or contingent, springing and shifting uses and executory devises. The classification of estates under the statute is without respect to their nature, the mode of conveyance by which they are created and their relation to the estate of the grantor, or to other granted estates. Thomas v. Williams, 105 Minn. 88, 91, 117 N.W. 155, involved a situation exactly like that in the instant case. We held that it was the intention to convey a "present contingent right in the land in the nature of a contingent fee." (page 156) Such grants are sustained under statutes similar to ours as contingent future estates and at common law as contingent springing uses. Fraser, Future Interests in Property in Minnesota, 4 Minn.L.R. 307 at 321; Tiffany, Outlines of Real Property, §§ 115, 116; 21 C.J. 927, § 26; Id. 1025, § 210; 2 Washburn, Real Property (6 ed.) §§ 1368-1370.
A joint tenancy was not only inappropriate to effect but would have defeated the intention of the parties by granting a vested estate in praesenti instead of a contingent estate in futuro, and by incidents thereof which would have enabled Miss Tillman to defeat the survivorship. Any one of the tenants can destroy the other's right of survivorship by conveyance to a third person. 2 Thompson, Real Property, p. 929, § 1714. In 1 Chitty's Blackstone, Book II, page 151, § 187, it is said:
"In general it is advantageous for the joint-tenants to dissolve the jointure * * *."
Plaintiff did not intend to place it in the power of Miss Tillman to defeat the survivorship and change the nature of the estate granted. Where the intention of the parties is to create an estate by survivorship...
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