Pass v. Stephens

• Decision Date: 16 June 1921
• Docket Number: Civil 1902
• Citation: 22 Ariz. 461,198 P. 712
• Parties: BLOSSOM PASS, Personally and as Special Administratrix of the Estate of MARTINA S. KELLY, Deceased, Appellant, v. JOHN C. STEPHENS, Personally and as Trustee, Appellee
• Court: Arizona Supreme Court

198 P. 712

22 Ariz. 461

BLOSSOM PASS, Personally and as Special Administratrix of the Estate of MARTINA S. KELLY, Deceased, Appellant, v. JOHN C. STEPHENS, Personally and as Trustee, Appellee

Civil No. 1902

Supreme Court of Arizona

June 16, 1921

APPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweeney, Judge. Affirmed.

Messrs O'Sullivan & Morgan and Mr. R. B. Westervelt, for Appellant.

Messrs Anderson, Gale & Nilsson, for Appellee.

OPINION

BAKER, J.

The appellant brought this suit in the superior court of Yavapai county, as the special administratrix of the estate of Martina S. Kelly, deceased, and personally, as the adopted daughter and sole heir at law of said deceased and her predeceased husband, William N. Kelly, to cancel and set aside a deed executed by Martina S. Kelly on her deathbed and to recover certain real and personal property described in said instrument.

One of the inquiries much contested in the case is whether the paper executed by the deceased, Martina S. Kelly, is a deed or an attempted testamentary disposition of property. The solution of the question involves the proper construction of the instrument. The superior court held it was a deed.

The instrument executed by the deceased had the caption "Deed." It contains apt words of conveyance. It purports to be made to the appellee, John C. Stephens as trustee, in consideration of $10, and in the further consideration of certain trusts therein named. It contains this clause:

"This conveyance being made by the grantor and accepted by the grantee, upon the following trusts:

"That the grantor shall be provided and cared for and maintained in suitable condition during her natural life; and the debts, costs, charges and expenses of her last sickness and funeral shall be paid, and an appropriate granite monument erected at her grave.

"That Charles Lauby shall be paid the sum of three thousand dollars ($3,000.00) in full for his past faithful services.

"That the remaining property shall be divided as follows: John C. Stephens to receive an undivided one-half thereof; Josephine S. Potts to receive an undivided sixth thereof; Edith W. Baehr to receive an undivided sixth thereof, and Pearl W. Wilson to receive an undivided one-sixth thereof."

It contains two other clauses as follows:

"In order to carry out the terms of the trust hereby imposed, the said grantee shall have full and complete charge of and authority over all of the property hereby conveyed, with absolute power to sell and dispose of or to mortgage the same in order to procure the necessary funds, or to pay and satisfy existing liens and taxes against any of the property hereby conveyed, and to preserve the same, all such matters to be determined by him according to his own best judgment.

"Within a reasonable time after the death of the grantor the grantee shall settle all outstanding indebtedness imposed by the above trustee and shall sell and dispose of all remaining property and divide the proceeds of sale among the parties entitled thereto in proportion to their several interests as hereinabove stated."

It purports to have been signed by the deceased on the fourth day of March, 1920. In the appropriate place for acknowledgement of the paper is this: "State of Arizona,

County of Yavapai -- ss:

"This instrument was acknowledged before me this 4th day of March, A.D. 1920, by Martina S. Kelly.

"My commission expires Feb. 28, 1924.

"[Notarial Seal.]

"ZIBA O. BROWN,

"Notary Public."

In Sharp et. al. v. Hall, 86 Ala. 110, 11 Am. St. Rep. 28, 5 So. 497, the distinction between wills and deeds is tersely stated as follows:

" Deeds, once executed, are irrevocable unless such power is reserved in the instrument. Wills are always revocable, so long as the testator lives, and retains testamentary capacity. Deeds take effect by delivery, and are operative and binding during the life of the grantor. Wills are ambulatory during the life of the testator, and have no effect until his death."

See, also, monographic note to Burlington University v. Barrett, 92 Am. Dec. 383-389.

The fundamental rule in the construction of both wills and deeds is to give effect to the intention of the party executing the instrument, and this is to be arrived at by the language used, as found in the entire writing. Bishop, Contracts, par. 380. Every clause, and even every word, should, when possible, have assigned to it some meaning. Bishop, Contracts, par. 384. It is only when the terms of the writing are not clear that collateral evidence may be received to ascertain its intent. In re Longer, 108 Iowa 34, 75 Am. St. Rep. 206, 78 N.W. 834. Otherwise the intent will be gathered from the instrument itself. Wilson v. Carter, 132 Iowa 442, 109 N.W. 886; Abbott v. Parker, 103 Ark. 425, 147 S.W. 70.

We think the law undoubtedly is that if the deceased intended the instrument in question as a testamentary disposition, to take effect only upon her death, and adopted the form of a deed for the purpose of evading the statute of wills, then doubtless it would be void, because not executed as a will, but if she, in good faith, intended it as a present disposition of the property, it is valid. Now, the instrument is in form a trust deed. While an instrument in form a deed may nevertheless be construed as a will, that it is in form a deed should receive some weight. It must be assumed that the maker had some understanding of the nature of the instrument. The instrument, in this case, clearly shows on its face that the grantor intended to convey to the grantee the property described, impressed with a trust, the terms of which are plainly stated and set out. It has but one reading. It contains no terms indicating an intention to postpone its operation until after the death of the grantor, nor are there any reservations made. It is plainly a deed. The intention of the grantor to divest herself of all title to the property is apparent on the face of the instrument.

But it is insisted by counsel for the appellant that the instrument is not a deed, but is testamentary in character. The contention is based upon the provision in the instrument:

"Within a reasonable time after the death of the grantor, the grantee shall settle all outstanding indebtedness imposed by the above trusts and shall sell and dispose of all remaining property and divide the proceeds of sale among the parties entitled thereto in proportion to their several interests as hereinabove stated."

It is obvious that this clause has no reference to the time when the instrument should take effect and become operative to pass title, and it affords no room for any inference of an intent to evade the statute of wills. It is but one of the terms of the trust, one of the duties imposed upon the trustee, thus deferred or postponed. The same observation is true as to the clause providing for the payment of the grantor's debts and the expenses of her last illness and placing a monument at her grave. These are only super-added duties of the trustee.

It is argued that the grantee did not take possession of the property until after the death of the grantor. This did not affect the title. We have no livery of seizin in this state. Even though possession of the property was dependent upon the event of the death of the grantor, the instrument would remain a deed and not a will. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533; Griffis v. Payne, 92 Tex. 293, 47 S.W. 973.

As to want of consideration, this is no contest by creditors. It is an attack on a transfer made by a sister to a brother, in which she transferred what she no longer needed, providing by the transfer what in her judgment she wished the grantee should receive direct to himself and what he should take in trust for the use and benefit of other relatives and a certain faithful employee. The covenant in the deed to care for and maintain the grantor in suitable condition during her natural life was a valuable consideration and not merely a nominal one. It was adequate if the grantor was satisfied with it, which she appears to have been. 13 C.J. 322. The confidence placed by the grantor in the grantee, and his undertaking to execute the trust, was sufficient consideration. 39 Cyc. 41.

It is insisted that there was no delivery of the deed. That is a question of fact. The superior court found there was a delivery of the instrument.

" No particular form or ceremony is necessary to constitute a 'delivery' of a deed. It may be by acts without words, or by words without acts, or both. Anything which clearly manifests the intention of the grantor and the person to whom it is delivered that the deed shall presently become operative and effectual, and that the grantor loses all control over it, and that by it the grantee is to become possessed of the estate, constitutes a sufficient 'delivery.' Baker v. Hall, 214 Ill. 364, 73 N.E. 351, 353; Webster v. Sherman, 33 Mont. 448, 84 P. 878, 881 (quoting Cady v. Zimmerman, 20 Mont. 225, 50 P. 553).

"The simplest mode of delivering a deed is by manual transfer of it by the grantor to the grantee, with the intention of relinquishing all control over the instrument and of passing title to the property. This delivery is defined an 'absolute delivery,' and undoubtedly it constitutes a consummation of the deed." 8 R.C.L. 983.

The clause in the paper, "in order to carry out the terms of the trust hereby imposed, the said grantee shall have full and complete charge of and authority over all of the property hereby conveyed, with absolute power to sell and dispose of or to mortgage the same, etc.," clearly expresses the intention of the grantor to give the grantee complete dominion and control over the property and to...