Tuttle v. Raish

• Decision Date: 11 April 1902
• Parties: E. N. TUTTLE et al., v. JENNIE RAISH et al., Appellants, MARGERY WARDWELL (formerly TUTTLE), Intervener, Appellant
• Court: Iowa Supreme Court

90 N.W. 66

116 Iowa 331

E. N. TUTTLE et al., v. JENNIE RAISH et al., Appellants, MARGERY WARDWELL (formerly TUTTLE), Intervener, Appellant

Supreme Court of Iowa, Des Moines

April 11, 1902

Appeal from Plymouth District Court.--HON. F. R. GAYNOR, Judge.

THIS is an action in equity for the partition of certain real estate left by one Milo R. Tuttle, who died intestate and without issue. Plaintiffs are brothers and sisters of decedent. Jennie Raish was married to Milo R. Tuttle, and on his death was apparently his widow. She has since married one Raish. She claims, however, more than a widow's share of the estate, for she sets up a written instrument which she avers to be a conveyance made by Tuttle to her of the whole of his property. Acting upon her alleged rights under this instrument, she has, since her husband's death, made sales and conveyances of real estate to different persons who are made defendants herein. Margery Wardwell claims to have been married to Milo R. Tuttle many years before he contracted an alliance with the present Jennie Raish. She avers they were never divorced, and by petition of intervention she makes claim to a widow's share, viz one-half of the property. The trial court found against the validity of the alleged conveyance to defendant Jennie Raish but it confirmed her right to a widow's share, and held the purchasers from her respectively entitled to an undivided one-half of the property so conveyed by her to each. The defendants and intervener appeal.--Affirmed.

Decree AFFIRMED.

Zink & Roseberry and Geo. W. Argo for defendants, appellants.

M. J Sweeley for appellees and for intervener appellant.

OPINION

WATERMAN, J.

Naturally, the first question for our consideration is as to the effect of the written instrument through which Jennie Raish claims to have obtained title to all of this property. We set it out in full:

"Whereas, my wife, Jennie Tuttle, has been equally instrumental in the accumulation of our property with myself, and from time to time assisting me with money of her own individually, therefore, in the event of my death without children, after all our just debts and my funeral expenses are paid, and one hundred and fifty dollars for a monument at my mother's grave, I, Milo R. Tuttle, of Clinton, Iowa, do hereby make and constitute my wife, Jennie Tuttle, the sole owner in her own right (without regard to my next of kin) of all our property, whether real or personal, or wherever situated, that we may be possessed of, and I hereby invest her with full powers and rights to receive, receipt for, sell, dispose of, and give title to as valid as if done by both of us in my lifetime. Witness my hand and seal this March 1st, 1884, at Clinton, Iowa. Milo R. Tuttle. (L. S.) Geo. Haywood, Witness.

"State of Iowa, Clinton County--ss.: On the 1st day of March, 1884, by request of Milo R. Tuttle, I witnessed the execution of the within instrument, and he acknowledged it to be his free act and done for the purposes therein expressed. Witness my hand and notarial seal day and year last written. [Seal.] George Haywood, Notary Public."

On the tenth day of December, 1896, George Haywood, notary public, made an amended acknowledgment, or certificate of acknowledgment, of said instrument of conveyance, being in words and figures as follows, to wit:

"State of Iowa, Clinton county--ss.: To Whom This may Come: Be it known that I, George Haywood, notary public in and for Clinton county, Iowa, certify that Milo R. Tuttle, to me well known, did on the 1st day of March, 1884, request me to make a full conveyance in writing of his wish and desire, and ordered that for and in consideration that his wife, Jennie Tuttle, by her own exertions had accumulated the most of what they possessed, he in justice (having no children) assigned, transferred, and set over and conveyed to his wife, Jennie Tuttle, all his rights, titles, and ownership of and in and to all property, both real and personal, that they owned or should thereafter acquire, or wherever situated, she, Jennie Tuttle, to have and to hold in her own individual right without hindrance of any next kin all of which I done by his request in both his and his wife's presence, and without her expressing a wish for him to do; and I witnessed his subscribing thereto, also took his acknowledgment as a notary public of its being his full, free and voluntary act and deed; and furthermore, he, the same identical Milo R. Tuttle, did on or about the 15th day of April, 1896 (after a lapse of twelve years), call and to see me at Clinton, Iowa, and spoke to me of his financial situation, and said that whatever they had was mostly made by his wife's hard work, economy, and that it was justly and rightfully hers, and that he was glad that everything had been made over to her so that she held the full right to all that he possessed. Witness my hand, George Haywood, still being a notary public this December 10th, 1896, Clinton, Iowa."

The material matter for us to decide is whether this instrument is a deed or a will. If it is the latter, it is manifestly of no validity, for it is not executed in the form prescribed by statute. Is it a deed? If it operated to convey a present interest, although possession and enjoyment were reserved during life by the grantor, it would be effective as a conveyance. Burlington University v. Barrett, 22 Iowa 60; Craven v. Winter, 38 Iowa 471; Lippold v. Lippold, 112 Iowa 134, 83 N.W. 809. If it passed no present interest, but was to be operative only upon the grantor's death, then it is testamentary in character, and of no effect unless executed with all the formalities of a will. Leaver v. Gauss, 62 Iowa 314, 17 N.W. 522. In Bigley v. Souvey, 45 Mich. 370 (8 N.W. 98), the instrument before the court for construction contained this provision: "The land herein named shall be and continue the property of the first party during his lifetime, and the remainder to said second party immediately at the death of said first party; but, in the event of the death of the second party before the said first party, then the estate herein shall go to said first party. * * *" It was held that title did not pass, the court saying, "The instrument given by defendant was a deed in form, but was testamentary in its nature, and passed no title whatever." In Crocker v. Smith, 94 Ala. 295 (10 So. 258, 16 L. R. A. 576), an instrument quite similar in terms to the one before us was construed by the court. It was properly executed to be either a deed or a will. It was held to be a will, the court saying: "Though an instrument may be in form a deed of gift and designated as such, it is a will if its purpose be testamentary, and it cannot operate during life, but is only consummated by death." But without going into detail as to the language of the cases it is enough to say that the general rule, as we have stated it, has support in the weight of authorities. Barnes v. Stephens, 107 Ga. 436 (33 S.E. 399); Pinkham v. Pinkham, 55 Neb. 729 (76 N.W. 411); Turner v. Scott, 51 Pa. 126; Hazleton v. Reed, 46 Kan. 73 (26 P. 450, 26 Am. St. Rep. 86); Conrad v. Douglas, 59 Minn. 498 (61 N.W. 673); Roth v. Michalis, 125 Ill. 325 (17 N.E. 809). Devlin, Deeds, section 309. The cases cited by appellants do not antagonize the general doctrine stated. In some of them extrinsic facts were resorted to for interpreting the language of the instrument, and in all of them it was found that a present interest passed. It may well be that the instrument should be given some effect if consistent with well-established legal principles; but a man may intend to dispose of his property by will, and this intention be...