Pentico v. Hays

• Decision Date: 05 January 1907
• Docket Number: 14,826
• Parties: ELLEN PENTICO et al. v. A. J. HAYS
• Court: Kansas Supreme Court

88 P. 738

75 Kan. 76

ELLEN PENTICO et al. v. A. J. HAYS

No. 14,826

Supreme Court of Kansas

January 5, 1907

Decided January, 1907.

Error from Rice district court; JERMAIN W. BRINCKERHOFF, judge.

STATEMENT.

ON June 13, 1889, Mary A. Smith owned eighty acres of land in Rice county, and had two children, Mrs. Ellen Pentico, who is one of the plaintiffs in error, and Pearly M. Smith, then a child between nine and ten years of age. Mrs. Smith made and acknowledged a deed on that day, purporting to convey to Pearly one forty-acre tract of the land. The deed, after being immediately recorded, seems to have been kept in the possession of the mother, and never to have passed into the physical possession of the little daughter. It was seen in a certain satchel, in which the mother kept her valuable papers, soon after it was recorded, and was found in the same satchel after the mother's death, in 1904.

The instrument was in the usual form of a warranty deed, except in the habendum clause there was this: "Except a lifetime lease on said land, in three days after the said party of the first part is deceased this deed shall be in full force and that she will warrant," etc.

Mrs Smith continued in the possession of the entire eighty-acre tract of land until her death. In 1902 the daughter Pearly then of age and married to one Wilson, sold and with her husband quitclaimed the forty acres described in the deed to her to the defendant in error, A. J. Hays. Thereafter Mrs Smith made a will, by the terms of which she devised to Mrs Pentico the entire eighty acres of land; and after the mother's will had been probated Mrs. Pentico and her husband took possession of the land, and soon thereafter Hays commenced this action against them to recover possession of the forty acres deeded to him by Pearly Wilson and her husband. The case was tried without a jury, judgment was rendered in favor of Hays, and the Penticos bring the case here.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONVEYANCES--Written Instrument Construed to be a Deed, and Not a Will. An instrument in writing in the usual form and with all the content of an ordinary warranty deed, but with this reservation in the habendum: "except a lifetime lease on said land, in three days after the said party of the first part is deceased this deed shall be in full force," is, upon its face, when signed, a warranty deed of the fee to the land therein described, with a reservation of a life-estate in the grantor, and is not a will.

2. CONVEYANCES--Estate Conveyed--Delivery and Acceptance of the Deed. Such a deed, when signed, acknowledged and recorded by a mother, conveys a present estate to her child between nine and ten years of age, who is named as the grantee therein, in fee to the land therein described, subject to the life-estate, though the deed be not actually delivered to the child but is retained by the mother until her death; provided, that the circumstances, considered in connection with the deed, indicate that such was the intention of the mother at the time, and such conveyance is beneficial to the child.

3. CONVEYANCES--Declarations of the Grantor--Hearsay Evidence. In such a case, on a trial to determine the title to the land, had after the death of the mother, statements made by her after the recording of the deed may not be proved in derogation of the title of the child or its grantee.

Prigg & Williams, for plaintiffs in error.

Samuel Jones, and C. F. Foley, for defendant in error.

OPINION

SMITH, J.:

Two principal questions are involved herein: (1) Was the instrument which was executed and acknowledged by Mrs. Smith in the form of a deed to Pearly from her, and which was recorded in the office of the register of deeds of the county wherein the land was situated, really a deed which conveyed a present interest in the land, or was it a will, designed only to convey the land to Pearly after the death of her mother? The instrument was not drawn in the form of, nor witnessed as, a will, but in the form of a deed, although it was evidently written by one who had some knowledge of legal forms. It was acknowledged and recorded as a deed. It is to be presumed that the mother caused it to be recorded and paid the fees therefor, as the child could not be presumed to have done this, and she could not have delivered the deed for record if it had not previously been delivered to her. All these facts, while not conclusive, were entitled to some weight with the court.

The first consideration, however, is the instrument itself. The granting clause is complete, in the usual form of a conveyance of a present interest in fee simple; the exception is of a lifetime lease on the land. The mother was then in the possession of the land, and continued so thereafter for about fifteen years and until her death. No third party ever claimed any rights thereto under a lease. This exception, therefore, should be construed as the reservation of a life-estate in the mother. In the same sentence with this reservation, and separated therefrom only by a comma, is this clause: "In three days after the said party of the first part is deceased this deed shall be in full force." We think this should be construed as an extension of the life-estate, or as defining when the grantee in the deed should be entitled to possession of the land, rather than as a contradiction of the immediate grant of the fee. ( Lauck et al. v. Logan, 45 W.Va. 251, 31 S.E. 986; Wilson v. Carrico, 140 Ind. 533, 40 N.E. 50, 49 Am. St. Rep. 213; Shackelton v. Sebree et al., 86 Ill. 616. See, also, Wyman v. Brown, 50 Me. 139; Abney et al. v. Moore, Admr., 106 Ala. 131, 18 So. 60; Spencer et al. v. Robbins et al., 106 Ind. 580, 5 N.E. 726; Turner v. Scott, 51 Pa. 126; Bunch v. Nicks, 50 Ark. 367, 7 S.W. 563; Hunt v. Hunt [Ky.], 82 S.W. 998, 68 L. R. A. 180; Durand v. Higgins, 67 Kan. 110, 124, 72 P. 567.)

In Powers v. Scharling, 64 Kan. 339, 67 P. 820, Mr. Justice Greene, speaking for the court, said:

"In determining whether an instrument be a deed or a will the question is, Did the maker...