Phillips v. Phillips

• Decision Date: 12 January 1903
• Parties: PHILLIPS et al. v. PHILLIPS.
• Court: Colorado Supreme Court

71 P. 363

30 Colo. 516

PHILLIPS et al. v. PHILLIPS.

Supreme Court of Colorado

January 12, 1903

appeal from district court, Arapahoe county.

Consolidated actions by Alice V. Phillips against Julia M. Phillips Mattie C. Oswald, and Grace J. Anderson. From judgments in favor of plaintiff, defendants appeal. Reversed talbot, Denison & Wadley, for appellants.

N. Q. Tanquary, C. F. Miller, and Lucius W. Hoyt for appellee.

STEELE J.

Actions were commenced by Alice V. Phillips against Julia M Phillips, Mattie C. Oswald, and Grace J. Anderson, respectively, to set aside certain deeds executed by Sidney Phillips in his lifetime, upon the ground that the said deeds were executed for the purpose of defrauding her, Alice V. Phillips, of her right as widow to a distributive share of said property. The causes were consolidated, and from judgments rendered in favor of the plaintiff the defendants have appealed to this court.

It was shown upon the trial that several years prior to his death Sidney Phillips executed and acknowledged certain warranty deeds, and put them, with letters, in envelopes addressed to the appellants, who are his daughters, in a tin box in the cellar of his residence. Later, and in the month of November, 1899, the said deeds were delivered to the grantees therein named, and were duly recorded in the office of the recorder of Arapahoe county. It was admitted that in the years 1898 and 1899 Sidney Phillips filed a schedule of property with the county assessor of Arapahoe county, wherein the property described in the deeds mentioned was returned for taxation as his property. And in the decree this finding appears: 'The intention of Sidney Phillips was to treat every one alike in the disposition of his property, but in 1888 he made three deeds to his three daughters, defendants in the consolidated causes, and buried the same in the cellar, where they remained several years; that plaintiff discovered these deeds, but said nothing to her husband touching them, and that she knew of the existence of these deeds for years. But the court finds this makes no difference, and that it does not change the character of the husband's act. The court finds that when the said Sidney Phillips made these deeds to his daughters he intended they should be testamentary in character, and not to be effective until his death; that he changed his mind, but did not change the letters to the daughters; that the daughters put the deeds on record, and paid the recording thereof, and then took them away; and that the daughters turned the deeds back to Sidney Phillips, who kept them a month, and returned them again to the daughters. But the court finds that he collected the rents and paid the taxes and paid the insurance and treated the property in all respects thereafter as though it were his own property, and that these deeds were testamentary in character and nature, and that Mr. Sidney Phillips could not deed away this property in contemplation of defeating his wife out of what she would have under the law of descent in this state.' The finding of facts is clearly supported by the evidence, except, perhaps, that portion thereof which finds that Sidney Phillips collected the rents, and paid the taxes, and paid the insurance, and treated the property in all respects thereafter as though it were his own property. Sidney Phillips died July 1, 1900. While the testimony shows that Mr. Phillips kept and retained general supervision of the property after the deeds were delivered to his daughters, it was shown that one of the daughters paid her wages to her father, and contributed toward the payment of taxes; that another daughter collected and retained some of the rents; that the daughters authorized their father to collect the rents. Mrs. Oswald testified that, after her father came to her house to live, shortly before his death, she collected the rents from the property conveyed to her, and used the money for her support and that of her father. It is shown by the testimony that at the time of Sidney Phillips' death he was about 67 years of age.

The plaintiff relies chiefly upon the cases of Smith v. Smith, 22 Colo. 480, 46 P. 128, 34 L.R.A. 49, 55 Am.St.Rep. 142, and Id., 24 Colo. 527, 52 P. 790, 65 Am.St.Rep. 251, to sustain the judgment. While the facts in the case mentioned are somewhat analogous, they are so different in essential particulars that we feel that the decision of that case is not decisive of this. There was no proof of the delivery of the deeds in the Smith Case until the day before the grantor died, and the court found that the deeds...