Shulsky v. Shulsky

• Decision Date: 06 May 1916
• Docket Number: 20,147
• Parties: ALEX B. SHULSKY, Appellee, v. MARY E. SHULSKY, Appellant
• Court: Kansas Supreme Court

157 P. 407

98 Kan. 69

ALEX B. SHULSKY, Appellee, v. MARY E. SHULSKY, Appellant

No. 20,147

Supreme Court of Kansas

May 6, 1916

Decided, January, 1916.

Appeal from Doniphan district court; WILLIAM I. STUART, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILL--Reference to Extrinsic Existing Deeds--Incorporated as Part of Will. If a properly executed will incorporates in itself, by reference, a deed not so executed, the deed so referred to, if it was in existence at the time of the execution of the will and is so accurately described therein as to assure its identity, takes effect as part of the will.

2. SAME--Will and Extrinsic Deeds--Constitute One Transaction--No Delivery of Deeds--Deeds and Will Subject to Revocation. A will devised to each of six children of the testator a specific tract of land, each devise followed by the words, "for which a deed has already been made." At the same time the testator executed the six deeds referred to in the will, placed them in one envelope with the will, and handed the envelope to a banker with instructions to deliver the deeds at his death to the grantees, and to deposit the will in the probate court. Five years thereafter he took the papers from the bank, destroyed the will and some of the deeds, and made a new will and new deeds in place of those destroyed. He then placed the new will and the deeds in an envelope and handed them to the banker with the same directions as before. Held, that the deeds were parts of the will and testamentary in character; that the execution of the will and the deeds constitutes one transaction; that the intention of the testator was that the deeds should not operate until his death, and that, being parts of the will, they were subject to revocation.

C. A. Magaw, T. M. Lillard, and F. E. Smith, all of Topeka, for the appellant.

S. M. Brewster, of Topeka, and J. J. Baker, of Troy, for the appellee.

Porter, J. Marshall, J., dissents.

OPINION

PORTER, J.:

On July 18, 1901, R. P. Shulsky, who owned a large tract of land in Doniphan county, made a will devising to each of his six children a separate piece of land. The first clause of his will devised eighty acres to the plaintiff herein, and reads as follows:

"First, I will and devise to my son, Alex B. Shulsky, the west half of the southwest quarter of section fifteen (15), township four (4) south, range nineteen (19) east, in Doniphan county, Kansas, for which a deed has already been made."

In substantially the same language, the will made provision for each of the other five children. At the same time the testator executed six deeds referred to in the will, conveying to each child the land mentioned in the will. The deeds and the will were placed in one envelope and handed by him to John Morley, a banker at Severance. On the outside of the envelope was a notation which Mr. Morley testified was in substance as follows:

"It instructed me to, shortly after I had knowledge of Mr. Shulsky's death, to hand to the parties named in these deeds, the deeds, to hand them in person to the parties named, and to mail by registered mail to the probate court of Doniphan county, Kansas, the will."

On June 27, 1906, Mr. Shulsky, the testator, called at the bank, asked for and received the envelope containing the instruments, took them away, and destroyed the deed to the plaintiff, the will and the envelope. On the same day he returned to the bank and handed to Mr. Morley an envelope which contained a new will, three of the same deeds he had taken away with him, and three new deeds. One of the new deeds conveyed to the plaintiff a life estate in the same tract of land described in the former deed, with remainder to the children of plaintiff. The former deed conveyed the title to the plaintiff in fee simple. The first clause of the new will reads:

"First: I will and devise to my son, Alex B. Shulsky, the west half of the southwest quarter of section fifteen (15), in township four (4) south, range nineteen (19) east Sixth P M in Doniphan county, Kansas, as per deed made to the same by me and dated June 26, 1906."

Robert P. Shulsky died February 22, 1913. Thereafter plaintiff brought this suit against his daughter, Mary E. Shulsky, to quiet his title to the eighty acres of land, basing his claim of title under the deed of July 18, 1901, on the theory that the deeds placed in the envelope and handed to Mr. Morley were delivered by Robert P. Shulsky with the intent to make a present transfer of title to the grantees named in the deeds. Mary E. Shulsky, the defendant, claims under the second will, dated June 27, 1906. The trial court found for the plaintiff and rendered judgment quieting plaintiff's title as against the defendant, who appeals.

The burden rested upon plaintiff "to prove the absolute unconditional delivery of the deed." (Shattuck v Rogers, 54 Kan. 266, 270, 38 P. 280.) The defendant's contention is that the deeds placed in the original envelope were testamentary in their nature. The sole question is whether the instruments were intended to pass a present interest in the lands with only the right to possession and enjoyment deferred until the maker's death, or were intended to pass an interest only upon the death of the maker. The general rule is that where the instrument discloses the maker's intention that it shall not operate until his death, it is testamentary in character and may be revoked. (Hazleton v. Reed, 46 Kan. 73, 26 P. 450.) In our view of the case, the intention of the...