Ritchie v. Davis
| Citation | 26 Wis.2d 636,133 N.W.2d 312 |
| Parties | Gordon RITCHIE, Jr., Plaintiff-Respondent, v. Lorraine E. DAVIS, Defendant-Appellant, Andrew P. Cotter, et al., Impleaded Defendants-Respondents, Lorraine E. Davis, Exrx., etc., et al., Impleaded Defendants-Appellants. |
| Decision Date | 02 March 1965 |
| Court | United States State Supreme Court of Wisconsin |
McLeod, Donohue & Colwin, Fond du Lac, for appellants.
Callahan, Arnold & Van Metre, Columbus, for respondents.
Appellants' brief states that the sole issue on this appeal is whether the June 7, 1955, deed from Davis to the two Cotters and to Ritchie constituted an irrevocable conveyance or an attempted testamentary disposition. It is appellants' contention that the delivery to Cotter was as agent for Davis, was revocable, and, therefore, was an ineffective testamentary disposition. The trial court, however, found it was Davis' intent at the time of delivery of the deed to Cotter that title then pass to the grantees.
There are many cases which have been decided in this and other jurisdictions involving the delivery of a deed by the grantor to a third person with instructions to deliver it to the grantee or to record it after the death of the grantor. Here, however, we have the unusual circumstance that the person to whom the grantor made the delivery was also named as one of the grantees. We will first consider the problem as if the plaintiff Ritchie had been the sole grantee. It was clearly Davis' intention that Ritchie should have the hotel property after Davis' death and the naming of Cotter and his wife as co-grantees was merely a device which Davis thought would insure that result.
The general rule is that the deposit of a deed with a third person for delivery to the grantee on the grantor's death will operate as a valid transfer as of the time of the first delivery, provided the grantor intends irrevocably to vest title in the grantee and surrenders control over the deed. 3 American Law of Property, p. 318, sec. 12.67; 8 Thompson, Real Property (1963 Replacement), p. 50, sec. 4232; 4 Tiffany, Real Property (3d ed.), pp. 246, 247, sec. 1054; 16 Am.Jur., Deeds, pp. 517, 518, sec. 143; Kerchner, Delivery of Deeds to be Effective on Death of Grantor, 43 Dickinson Law Review (1939), 188, 190; and Anno. 52 A.L.R. 1222. Wisconsin cases which have applied this general rule and have found the deed was effective as of the time of delivery to the third person are: Prosser v. Nickolay (1946), 249 Wis. 75, 23 N.W.2d 403; Lawrence v. Children's Home & Aid Society (1939), 231 Wis. 44, 285 N.W. 415; Kolber v. Steinhafel (1926), 190 Wis. 468, 209 N.W. 595; Albright v. Albright (1888), 70 Wis. 528, 36 N.W. 254. However, where it is agreed that the third person custodian is to hold the deed subject to the control of the grantor, title does not pass at the time of deposit with the custodian. Padden v. Padden (1920), 171 Wis. 212, 177 N.W. 22.
In the instant case the instructions given by the grantor, Davis, were not to record the deed until after his death. Other cases in which the grantor's instructions to the third party to whom the deed was delivered were not to record until after the grantor's death are: Keating v. Augustine (1932), 213 Iowa 1336, 241 N.W. 429, and Heinecke v. Portus (1941), 299 Mich. 668, 1 N.W.2d 32. Both cases held that an irrevocable delivery occurred upon the grantor handling the deed to the third party which inured to the benefit of the grantee. As authority for this holding, the Iowa and Michigan courts cited cases involving delivery to a third person with instruciions not to deliver to the grantee until after the death of the grantor. We likewise have cited authorities dealing with instructions to hold and deliver to the grantee after grantor's death as being apposite on the issue of delivery presented in the instant case.
The test of whether the deed is effective upon delivery to the third person is not whether the grantor has retained possession or control of the property, but rather, whether he has retained possession or control of the deed. Estate of Hulteen (1951), 170 Kan. 515, 519, 227 P.2d 112. Therefore, it is immaterial that the grantor continues in possession and control of the conveyed real estate, as did Davis, from the time of delivery of the deed to the third person until the grantor's death. The deed operates as a conveyance in praesenti although the enjoyment is postponed until the grantor's death. Hered v. Nemethy (1962), 15 App.Div.2d 791, 792, 224 N.Y.S.2d 723. Some courts hold that the grantor retains an implied reserved life estate in the premises. 3 American Law of Property, p. 318, sec. 12.67, and cases cited in footnote 3; 4 Tiffany, Real Property, p. 247, sec. 1054, and cases cited in footnote 62. It was held in the inheritance tax case of Estate of Ogden (1932), 209 Wis. 162, 168, 244 N.W. 571, that an effective life estate may be reserved by the grantor by oral agreement even though the deed is absolute on its face and has been delivered to the grantee.
The intention of the grantor at the time he makes the delivery of the deed to the third person controls as to whether the deed is revocable or irrevocable. There are several facts in the instant case which tend to establish that Davis intended an irrevocable conveyance. Nothing was said between Davis and Cotter at the time of the delivery of the deed to Cotter. This in itself is more consistent with an intention that the deed was irrevocable rather than revocable. Davis made no attempt thereafter to revoke the delivery. When the subject of the joint will was discussed between Davis and Cotter, Davis remarked to Cotter, 'What she 'Mrs. Davis doesn't know won't bother her.' This tends to support the inference that he considered the deed an accomplished fact and not...
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Estate of Read v. Kronberg, 2013AP2416.
...within the four corners of the quit claim deed. To support this argument, Millen and Kronberg rely on Wynhoff, Ritchie v. Davis, 26 Wis.2d 636, 133 N.W.2d 312 (1965), and Herzing. This argument fails for at least three reasons.¶ 41 First, Millen and Kronberg rely on a passage from Wynhoff, ......
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