Pinkham v. Pinkham

• Decision Date: 23 September 1898
• Docket Number: 8219
• Parties: MARTHA J. PINKHAM, APPELLANT, v. JOHN H. PINKHAM ET AL., APPELLEES
• Court: Nebraska Supreme Court

76 N.W. 411

55 Neb. 729

MARTHA J. PINKHAM, APPELLANT, v. JOHN H. PINKHAM ET AL., APPELLEES

No. 8219

Supreme Court of Nebraska

September 23, 1898

APPEAL from the district court of Otoe county. Heard below before CHAPMAN, J. Reversed.

REVERSED AND REMANDED.

Ricketts & Wilson, for appellant:

An instrument which takes effect only upon the death of the maker is testamentary in character. (Haberghan v Vincent, 2 Ves. Jr. [Eng.] 204; Turner v Scott, 51 Pa. 126; In re Lantenschlager's Estate, 45 N.W. 147 [Mich.]; Hitchcock v Simpkins, 58 N.W. 47 [Mich.]; Singleton v. Bremar, 17 Am. Dec. [S. Car.] 699; Conrad v. Bell, 61 N.W. 673 [Minn.]; Blackman v. Preston, 15 N.E. 42 [Ill.]; Donald v. Nesbitt, 15 S.E. 367 [Ga.]; White v. Hopkins, 4 S.E. [Ga.] 863; Sperber v. Balster, 66 Ga. 317; Hazelton v. Reed, 26 P. 450 [Kan.]; Brown v. Bronson, 35 Mich. 415; Leaver v. Gauss, 17 N.W. 522 [Ia.]; Nichols v. Emery, 41 P. 1089 [Cal.]; Hannig v. Hannig, 24 S.W. 695; Bowdoin College v. Merritt, 75 F. 480.)

John C. Watson and F. E. Brown, contra:

A conveyance, otherwise perfect in form, is not converted into a will by inserting in it a clause declaring that it is to go into effect after the death of grantor, and that he claims to hold the land so long as he lives. (Seals v. Pierce, 83 Ga. 787; Evans v. Smith, 28 Ga. 98; Cable v. Cable, 146 Pa. St. 451; Wall v. Wall, 30 Miss. 91; Phillips v. Thomas Lumber Co., 94 Ky. 445; Bassett v. Budlong, 77 Mich. 338; Sharp v. Hall, 86 Ala. 110; Robertson v. Dunn, 2 Murph. [N. Car.] 133; Burlington University v. Barrett, 92 Am. Dec. [Ia.] 383; Williams v. Tolbert, 66 Ga. 127; Owen v. Williams, 114 Ind. 179; Graves v. Atwood, 52 Conn. 512; Bunch v. Nicks, 50 Ark. 367; Shackelton v. Sebree, 86 Ill. 616; Barber v. Milner, 43 Mich. 248; Warren v. Tobey, 32 Mich. 45; Jackson v. Cleveland, 15 Mich. 94; Wallace v. Harris, 32 Mich. 380; Gale v. Gould, 40 Mich. 515; Wilson v. Carrico, 49 Am. St. Rep. [Ind.] 213.)

OPINION

The opinion contains a statement of the case.

NORVAL, J.

This action was instituted in the court below by Martha J Pinkham, widow of Calvin Pinkham, deceased, for the assignment of dower in the southwest quarter of section 8, township 7, range 11, Otoe county, claiming that her husband died seized of said premises. The defendant John H. Pinkham asserts that he is the absolute owner of the real estate, and the trial resulted in a decree quieting the title to the land in him.

The facts are substantially as follows: On and prior to March 13, 1885, one Calvin Pinkham was the owner in fee of the real estate in controversy. On that day, while dangerously ill, he executed to his grandson, the defendant John H. Pinkham, an instrument, in form a warranty deed, covering said premises, which contained this provision: "This deed is to take effect and be in full force from and after my death. The further and additional consideration of this conveyance is that the said John H. Pinkham shall pay to Ella P. Reiddell, my great-granddaughter, fifty dollars ($ 50) per annum for ten years from the date this deed is in full force and effect; that is to say, fifty dollars each and every year for ten years from the taking effect of this deed." This instrument was acknowledged and duly filed for record. Subsequently, on November 4, 1886, plaintiff married said Calvin Pinkham and they lived together as husband and wife until May 30, 1893, when Calvin died leaving plaintiff, his widow, him surviving. John H. Pinkham did not acquire possession of the property during the lifetime of Calvin, but did so immediately upon the death of the latter, asserting title in himself by virtue of the instrument already mentioned, and has since refused to recognize any interest in the land in plaintiff. The defendant Lilly P. Reiddell is the great-granddaughter of Calvin Pinkham, deceased, and is the person designated in the clause of the instrument quoted as "Ella P. Reiddell." Said Calvin Pinkham, deceased, left him surviving two children, the defendant Anna Babcock and Calvin Pinkham, Jr., the latter being the father of the defendant Emma E. Ryan. The interest of Calvin Jr. in the premises has been conveyed to said daughter. John H. Pinkham is the son of Anna Babcock. The said Emma E. Ryan claims an undivided half of the lands in fee simple, while said Lilly P. Reiddell asserts that she is entitled to $ 500 under the clause in the instrument set out above, and that the amount should be made a lien upon the premises.

By virtue of section 1, chapter 23, Compiled Statutes, the widow is entitled to dower in all lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she has been lawfully barred thereof. (Butler v. Fitzgerald, 43 Neb. 192, 61 N.W. 640.) If Calvin Pinkham, deceased, held title to the real estate in dispute at the time of his death, his widow has a dower interest in the property, and is entitled to have the same assigned. The proper solution of this question calls for an interpretation of the instrument under which John H. Pinkham asserts title, or rather, the clause of the instrument already quoted. If that instrument acted as a conveyance of the lands in praesenti, then it is patent that plaintiff cannot recover herein. We are satisfied that the instrument was not effective as a deed. It did not purport to be effective as a conveyance until the death of Calvin Pinkham, so that the absolute legal title to the premises was in him at the time of his death. A deed must pass a present interest in the property, even though the right of possession and enjoyment may not accrue until some future period. A will passes no title until after the testator's death, and this marks the essential difference between a deed and a will. The great weight of authority sustains the proposition that an instrument, in the form of a deed, which takes affect and becomes operative alone upon the death of the maker, is testamentary in character, and is not a deed. (Devlin, Deeds sec. 309; Habergham v. Vincent, 2 Ves. Jr. Ch. Rep. [Eng.] 204; Bigley v. Souvey, 45 Mich. 370, 8 N.W. 98; Singleton v. Bremar, 15 S.C. L. 12, 4 McCord 12; Conrad v. Douglas, 59 Minn. 498, 61 N.W. 673; Blackman v. Preston, 123 Ill. 381, 15 N.E. 42; Donald v. Nesbit, 89 Ga. 290, 15 S.E. 367; White v. Hopkins, 80 Ga. 154, 4 S.E. 863; Sperber v. Balster, 66 Ga. 317; Hazleton v. Reed, 46 Kan. 73, 26 P. 450; Nichols v. Emery, 109 Cal. 323, 41 P. 1089; Hannig v. Hannig, 24 S.W. 695; Leaver v. Gauss, 62 Iowa 314, 17 N.W. 522; Turner v. Scott, 51 Pa. 126.)

In the last case a father executed a warranty deed to his son, reserving the lands described to the grantor for his life, and containing a provision that "this conveyance in no way to take effect until after the decease of the grantor." The court held this clause rendered the instrument testamentary in character. Woodward, C. J., in delivering the opinion of the court, observed: "As these words were expressly limited to take effect only after the death of the grantor, they were necessarily revocable words. The doctrine of the cases is, that whatever the form of the instrument, if it vest no present interest, but only appoints what is to be done after the death of the maker, it is a testamentary instrument. It signifies nothing that the parties meant to make a deed instead of a will. If they had used language which the law holds to be testamentary, their intention is to be gathered from the legal import of the words they have employed, for all parties must be judged by the legal meaning of their words."

In Singleton v. Bremar, 15 S.C. L. 12, 4 McCord 12, it was held that a deed to take effect at the death of the grantor is void. The same principle was recognized and applied in ...