Westover v. Harris.

• Decision Date: 21 May 1943
• Docket Number: No. 4744.,4744.
• Citation: 47 N.M. 112,137 P.2d 771
• Parties: WESTOVERv.HARRIS.
• Court: New Mexico Supreme Court

47 N.M. 112

137 P.2d 771

WESTOVER

v.HARRIS.

No. 4744.

Supreme Court of New Mexico.

May 21, 1943.

Appeal from District Court, Fifth District, Chaves County; Compton, Judge.

Action by Mallie Westover against Elsie Harris to cancel deed and to recover sum of $600 paid to defendant in trust. From the judgment rendered, the plaintiff appeals, and the defendant cross appeals.

Affirmed.

In action to cancel deed on theory that it was intended as a will, construction by trial court of plaintiff's testimony that deed was executed to re-enforce the will, as meaning that grantor was making certain that her benevolence could not be questioned or diverted to a controversy over terms of the will when she made the deed, was within power of trial court.

Frazier & Quantius, of Roswell, for appellant.

E. E. Young, of Roswell, for appellee.

MABRY, Justice.

Plaintiff-appellant, Mallie Westover, brought suit against defendant-appellee, Elsie Harris, her daughter, seeking the cancellation of a certain deed purporting to convey certain property in Chaves County, New Mexico. The complaint was based upon the contention that defendant had agreed with plaintiff, her mother, in consideration of the deed so conveying the property in question, that she would take care of and support plaintiff during the remainder of her life; that after the contract was entered into and after plaintiff had lived in the home with said daughter for a number of months defendant failed and refused to take care of, support and maintain plaintiff, as she had covenanted and agreed to do, and thereby breached her contract and agreement with plaintiff.

Plaintiff further urged in the court below, and here urges, that the instrument referred to by which the property in question was so conveyed was intended to be and was in fact nothing more than a testamentary disposition which plaintiff undertook to make of her property in question. It was, however, upon the theory that defendant, by her course of conduct toward plaintiff, had breached the contract to so keep and support plaintiff that counsel for plaintiff largely, though not entirely, relied in the court below. The deed was executed by plaintiff, recorded by her attorney at her direction, and later returned to her as requested. This deed plaintiff thereafter destroyed. Defendant contends that the deed constituted an actual conveyance of the property from her mother to her and was not subject to recall or cancellation. The trial judge gave judgment for defendant, holding the deed to be a deed in fact and not to represent an attempted testamentary disposition by plaintiff of her property, and plaintiff appeals.

The deed was a warranty, absolute in form except that it contained a clause reserving a life interest in the grantor, plaintiff. This clause reads: “Reserving, however, to the party of the first part a lifetime interest in the above described property, together with all rents, issues, and profits, and full possession and control thereof during the natural lifetime of the party of the first part.”

The trial court made the following findings of fact, appellant's challenge going to findings numbered 4 and 7:

“1. That the Defendant, Elsie Harris, is the daughter of the Plaintiff and John Westover, Deceased; that at the time of the death of the said John Westover, the Plaintiff and the Deceased were separated and divorced.

“2. That by the terms of the Last Will and Testament of the said John Westover, Deceased, he devised and bequeathed a substantial portion of his estate to Florine Stevens, his daughter, and likewise a substantial portion of his estate to his son J. B. Westover; that the said Decedent, John Westover, left two other children, namely, Elsie Harris and Jay Westover.

“3. That on and prior to February 17th, 1940, the said J. B. Westover and the said Flor ence Stevens were indebted to the Plaintiff herein in the sums of $3,176.66 and $3,000.00 respectively.

“4. That on February 17th, 1940, Plaintiff made, executed and delivered to the Defendant Elsie Harris a deed to the property in question, thereby intending that the title thereto should then pass and become vested in the said Elsie Harris, and likewise on said date Plaintiff made, executed and delivered to her son, Jay Westover, a deed for a house and lot, which is not in litigation herein, reserving, however, a life estate in both properties, with the right to receive, collect and use all rents, issues and profits therefrom of any kind and character, arising or that which might be produced from the said properties for her own use and benefit.

“5. That since the execution and delivery of said deed the Plaintiff has had the exclusive and uninterrupted right to receive, and has received all of the rents, issues and profits from the said properties for her sole benefit.

“6. That there was no contract between the Plaintiff and the Defendant, as alleged in the complaint, by the terms of which the Defendant agreed to keep the Plaintiff for and during her natural life in consideration of the said conveyance.

“7. That some time subsequent to the time the deed was made by the Plaintiff to the Defendant, the Defendant went into the home of the Plaintiff and lived with the Plaintiff for some nine months, during which time the Defendant expended considerable sums of money in improving and repairing said property, in approximately the sum of $200.00.

“8. That no suit has been instituted by the Plaintiff against the said Jay Westover to cancel the deed to him.

“9. The Court further finds that the conveyances aforesaid were made by the Plaintiff for the purpose of equalizing, as nearly as possible, the amounts which her four children might receive from the estate of her deceased husband, John Westover, and her own estate.

“10. That the money involved in the second cause of action is the property of the Plaintiff, and was never intended to be or become the money of the Defendant, and that no trust was established between the Plaintiff and the Defendant concerning the said money.”

Finding number 10 aforementioned goes to the second cause of action involved in the suit whereby plaintiff sought to and did recover of defendant $600 in money. The question with which this last finding deals will be hereafter noticed when we treat of the cross-appeal herein. Upon these findings the court concluded as a matter of law as follows:

“1. That the Defendant, Elsie Harris, is vested with the title to the real estate in question, subject only to the life estate of the Plaintiff.

“2. That Plaintiff is estopped from attempting to set aside said deed.

“3. That the Defendant has no right, title or interest in or to the postal certificates, and should assign the same to the Plaintiff.

“4. That judgment should be for Defendant on the first cause of action, and for the Plaintiff on the second cause of action.

“5. That the costs should be divided equally between the parties hereto.”

The main question which this appeal presents is whether the trial court properly held the deed in question a deed in fact as distinguished from a testamentary document over which plaintiff would have control. If it be a will, rather than a deed absolute with the reservation of a life estate, obviously plaintiff would have full control over it and could have required its cancellation or destruction at any time.

[1] We hold that there was evidence to support the court's findings that the document was executed as, and was at all times intended to be, a deed and not a will; and thus the conclusions of law based upon the findings were properly made. We do not feel that an exhaustive review of the evidence will be either necessary in explanation of our opinion or beneficial as an aid to the bench and bar, and hence we will touch upon the evidence rather superficially.

Even assuming appellant could, under the circumstances relied upon, by her oral testimony show the document was not intended as a deed but that it was a will, she did not use very apt language in her testimony to show such intention. Her own testimony, to say nothing of the contrary evidence, might fairly bear an interpretation which would support the court's finding; an interpretation that it was only after she had difficulty with her daughter that she “changed her mind” and wanted to cancel and destroy the deed which had been made without suggestion at the time that she reserved any such control.

It is deducible from all the testimony that appellant would have the deed considered a will, rather than a deed, only after she felt that her daughter had mistreated her. Up to the time of the break in relationship, and when all was going well, plaintiff herself testified that she wanted “to let it go like it was”, but added that because of the treatment accorded her by the daughter thereafter, “I changed my mind-I had to have...