White v. Reading

• Decision Date: 07 April 1922
• Parties: MARGARET DECHERD WHITE v. GEORGE W. READING et al., Appellants
• Court: Missouri Supreme Court

239 S.W. 90

293 Mo. 347

MARGARET DECHERD WHITE v. GEORGE W. READING et al., Appellants

Supreme Court of Missouri, Second Division

April 7, 1922

Appeal from Pike Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.

Reversed and remanded (with directions).

David A. Ball, Guy M. Wood and Pearson & Pearson for appellant.

(1) By his reference to the deeds, in his will, each having been executed at as near the same time as possible -- the deeds first, then the will -- each executed for one and the same purpose, the deeds should be incorporated, and read in, and as a part of, the will. His intention should be made to prevail. Harvey v. Choteau, 14 Mo. 595; Allen v DeGroodt, 105 Mo. 451; Willard v. Darrow, 168 Mo. 668, 672; Murphy v. Clancy, 177 Mo.App. 429; Tonelle v. Hall, 4 N.Y. 144; Brown v Clark, 77 N.Y. 377; Fesler v. Simpson, 58 Ind 82; Copeland v. Summers, 35 N. E. (Ind.) 514; Trust Co. v. Moore, 50 N. E. (Ind.) 73; Bryan's Appeal, 68 L. R. A. 353; 40 Cyc. sec. 5, p. 1421, Note 66. (a) Ordinarily all documents made at the same time, and relating to the same transaction should be read and construed together. Jennings v. Todd, 118 Mo. 304; Realty Co. v. Geren, 185 Mo.App. 454; Waldemeier v. Loebig, 222 Mo. 552; Agan v. Shannon, 103 Mo. 669; Mercer v. Railroad Co., 54 Mo. 512; Priest v. Chouteau, 85 Mo. 409-10. (b) When several instruments are executed at the same time, in relation to the same subject-matter, to accomplish a common purpose, and the execution of all is known to every party to either instrument, they should be construed as one contract, though the parties to each instrument are not the same. McDonald v. Wolff, 40 Mo.App. 302, 309; Advertising Co. v. Publishing Co., 146 Mo.App. 98; Morey v. Clopton, 103 Mo.App. 379-80; Sexton v. Anderson, 95 Mo. 382; Houck v. Frisby, 66 Mo.App. 19-20. (c) The Pole Star of interpretation of a will is the intention of the testator; and, it should be so construed as to carry out the intention of the maker. To discover the latter, courts are not limited to the four corners of the instrument, but may be enlightened aliunde as to the conditions surrounding the testator. McCune v. Goodwille, 204 Mo. 337; Church v. May, 201 Mo. 369; Briant v. Garrison, 150 Mo. 667-8; Hewitt v. Steele, 118 Mo. 573. (d) In determining the intention and meaning of the testator, courts will consider the will as a whole, giving to each and every part of it due and proper consideration; and, so far as possible, put themselves in the place of testator, and will read all the directions in the place of the testator, and will read all the directions in the light of his environments at the time the will was executed. Tisdale v. Prather, 210 Mo. 407-8; Tebow v. Dougherty, 205 Mo. 320; Jennings v. Todd, 118 Mo. 304; Willard v. Darrah, 168 Mo. 668-9, 672. (2) One of the cardinal rules invoked by courts in the construction of wills is, that a testator intended to dispose of his entire estate, and not to die intestate either as to the whole or any part thereof; and the will should be so construed. McMahan v. Hubbard, 217 Mo. 637-8; Miniers v. Miners, 279 Mo. 617; Carr v. Dings, 58 Mo. 406-7; Watson v. Watson, 110 Mo. 171-2; Farish v. Cook, 78 Mo. 220-1; Scott v. Etling, 224 Mo. 48-9; Gaines v. Fender, 57 Mo. 346-7; Hurst v. VondeVelt, 158 Mo. 250; 40 Cyc. sec. B. p. 1409. (3) When, by mistake in drawing deeds, they do not convey the estate intended by the parties, they may be reformed to accomplish their intention. Bramhall v. Bramhall, 215 S.W. 769; Corrigan v. Tierney, 100 Mo. 281; Maze v. Boehm, 220 S.W. 953-4; Wilhite v. Wilhite, 224 S.W. 449; Williamson v. Brown, 195 Mo. 331; Creasey v. Alverson, 43 Mo. 22. (a) The court erred in excluding the proffered testimony of the scrivener as to what the grantor said at the time he instructed him to write the deeds, or what directions he gave him as to how he wanted the deeds written. Brown v. Tuscoff, 235 Mo. 459; Bryant v. Garrison, 150 Mo. 669; Terry v. Glover, 235 Mo. 547; Wilhite v. Wilhite, 244 S.W. 450; 20 Am. & Eng. Ency. Law, sec. B. p. 821; Creasey v. Alverson, 43 Mo. 22; Riggs v. Meyers, 20 Mo. 244. (b) Every deed must, if possible, be made operative. This is an elementary principle in the construction of deeds. Peter v. Byrne, 175 Mo. 247; Hubbard v. Whitehead, 221 Mo. 681; Thompson v. Thompson, 115 Mo. 64; Wimpey et al. v. Ledford, 177 S.W. 303-4. (c) The evidence shows conclusively, that the respective deeds were all delivered. Crites v. Crites, 225 S.W. 992-3. (4) The deeds in question are not, in the ordinary sense, a gift. They are in a broader sense, a division of grantor's property; and, are in every particular as solemn an act and obligation between the parties, as if there was, and had been, a contract and sale for a valuable consideration. Hutsel v. Crews, 138 Mo. 5; Crawley v. Crafton, 193 Mo. 431; Partridge v. Partridge, 220 Mo. 325.

Hostetter & Haley for respondent.

(1) The deeds are void for the following reasons: (a) Where the instrument contains a clause (as in the case at bar) providing that the property is to pass to the grantee after the death of the grantor, this shows an intent not to convey a present interest and it is testamentary, and not being executed in accord with the statute relating to wills, it is invalid. Goodale v. Evans, 263 Mo. 219; Terry v Glover, 235 Mo. 545; Murphy v. Gabbert, 166 Mo. 596; Griffith v. McIntosh, 176 Mo. 398; Coles v. Bedford, 232 S.W. 728; Aldridge v. Aldridge, 202 Mo. 565; Givens v. Ott, 222 Mo. l. c. 411; 1 Alexander's Commentaries on Wills, p. 68; Frederick's Appeal, 52 Pa. 338; 2 Devlin on Deeds, p. 1582, note 2; Sneathen v. Sneathen, 104 Mo. 201; Thompson on Wills, sec. 9; 1 Alexander's Comm. on Wills, p. 63, sec. 56. (b) Delivery during the lifetime of the grantor is essential to the validity of a deed even though the instrument be in proper form and contains no nullifying reservation or destructive clause with a hand pointing it out and emphasizing it. Allen v. De Groodt, 105 Mo. 449; Griffith v. Miller, 188 Mo. 327; Peterman v. Crowley, 226 S.W. 944; Wren v. Sturgeon, 184 S.W. 1036; Coles v. Bedford, 232 S.W. 728. (c) We concede the rule to be that a deed delivered to a third person by the grantor, to be by such third person delivered to a grantee, even after the death of the grantor, may constitute good delivery. Terry v. Glover, 235 Mo. 552; Sneathen v. Sneathen, 104 Mo. 201; Allen v. DeGroodt, 105 Mo. 442. (d) But in order to make such delivery good the grantor must part with dominion over it when he places it in the hands of such third person; the deed must thereafter be beyond the power of recall by the grantor; his right to control or interfere with the deed must cease. Coles v. Bedford, 232 S.W. 728; Mudd v. Dillon, 166 Mo. 119; Hamerslough v. Cheatam, 84 Mo. 20; Abbe v. Justus, 60 Mo.App. 300; Wren v. Sturgeon, 184 S.W. 1038; Burkey v. Burkey, 175 S.W. 624; Peterman v. Crowley, 226 S.W. 944; Huey v. Huey, 65 Mo. 689. (2) The deeds cannot be reformed for the following reasons, to-wit: (a) "Void instruments, where there is no evidence of accident or mutual mistake in the execution thereof, courts of equity have no power to reform so as to make them valid." Hedges v. Dixon County, 150 U.S. 192; Litchfield v. Ballow, 114 U.S. 192; Parrish v. Camplin, 139 Ind. 1; Bragoria County v. Bridge Co., 80 F. 10; Dickens v. Glenny, 27 Conn. 111; White v. Railroad Co., 13 Mich. 356. (b) Equity will not reform a voluntary conveyance at the instance of the grantee; the latter is merely the recipient of a bounty, which the grantor was not bound to make and not being bound to make he is not bound to perfect. 23 R. C. L., p. 344, sec. 38; Willey v. Hodge, 104 Wis. 81; Partridge v. Partridge, 220 Mo. 325; Anderson v. Scott, 94 Mo. 637; Brownlee v. Fenwick, 103 Mo. 428; Hutsell v. Crewse, 138 Mo. 1; Crawley v. Crafton, 193 Mo. 432; 23 R. C. L. p. 346, sec. 40; Mudd v. Dillon, 166 Mo. 110. (c) A mistake as to the legal effect of a deed is not sufficient ground for its reformation. Fowler v. Black, 136 Ill. 363, 11 L. R. A. 670; Atherton v. Roche, 192 Ill. 252, 55 L. R. A. 591, 54 L. R. A. 354; Norton v. Heighleyman, 88 Mo. 621; St. Louis v. Priest, 88 Mo. 612; Nelson v. Betts, 21 Mo.App. 219; Tesson v. Ins. Co., 40 Mo. 33; Parker v. Vanhoozer, 142 Mo. 621; Miller v. Powers, 4 L. R. A. 483, note; Griffin v. Miller, 188 Mo. 327. (d) In conveyances capable of being reformed (the deeds in the instant case not falling in that class), the mistake must be a mutual one in order to entitle the proper party seeking it to obtain reformation. Atkins v. Tomlinson, 121 Mo. 487; Bartlett v. Brown, 121 Mo. 353; Meek v. Hurst, 223 Mo. 688; Steinberg v. Ins. Co., 49 Mo.App. 255; Bracking v. Straat, 17 Mo.App. 305; Benn v. Pritchett, 163 Mo. 572; Griffith v. Miller, 188 Mo. 327; Parker v. Vanhoozer, 142 Mo. 621. (e) Equity will never relieve against the consequence of a mistake of law unmixed with mistake of fact. St. Louis v. Priest, 88 Mo. 614; Price v. Estill, 87 Mo. 386; Kleimann v. Geiselmann, 114 Mo. 445; Hendrix v. Wright, 50 Mo. 315. (3) A court of equity has no jurisdiction to reform a will on the ground of mistake by the draughtsman in drawing the same. Goode v. Goode, 22 Mo. 518. (4) If the testator had, as he did in the instant case, selected a means or method of transmitting title which was ineffective and made no attempt to devise the remainder interest in the lands by the will, the court cannot supply the clauses necessary to make the will carry the title instead of the broken-down deeds. In other words, the court cannot make the will for the testator; the court can only interpret and construe the instrument as made by the testator. Now, to arrive at the intent of the testator the instrument itself must be resorted to and all...