Wilson v. Wilson

• Decision Date: 25 March 1907
• Docket Number: 1804
• Court: Utah Supreme Court
• Parties: WILSON v. WILSON et al

89 P. 643

32 Utah 169

WILSON v. WILSON et al

No. 1804

Supreme Court of Utah

March 25, 1907

APPEAL from District Court, First District; W. W. Maughan, Judge.

Action by Catherine D. Evans Wilson against Robert K. Wilson, Jr. and others. From a judgment for plaintiff, both parties appeal.

AFFIRMED ON PLAINTIFF'S APPEAL. REVERSED ON DEFENDANT'S APPEAL.

John A Street and W. H. Bramel for plaintiffs.

APPELLANT'S POINTS.

A man about to marry a second time may lawfully convey to his children by a former marriage a reasonable portion of his property. No other consideration than love and affection and natural duty is required to support the deed. (Kinne v Webb, 54 F. 34; Hamilton v. Smith [Ia.], 10 N.W. 276.)

But what of a case where, in addition to love and duty, there is a valid, valuable consideration practically amounting to ownership of the property? The exact situation is presented in Champlin v. Champlin, 16 R. I. 314, 15 A. 85. (Firestone v. Firestone, 2 Ohio St. 415; Chapman v. Chapman, 24 S.E. 225 [Va.]; Doniher v. Doniher, 66 N.E. 239 [Ill.]; Beckwith v. Beckwith, 28 N.W. 116 [Mich.;] Gaines v. Gaines, 9 B. Mon. 295, 298; Littleton v. Littleton, 1 Dev. & B. 327, 331; McIntosh v. Ladd, 1 Humph. 459; Miller v. Wilson, 15 Ohio 108; 1 Scrib. Dower, 591-595; Thayer v. Thayer, 14 Vt. 107; 39 Amer. Dec. 211 and note.)

Such being the law, it is immaterial whether she had notice or no notice of a deed or conveyance based on a valid consideration or obligation. (Blood v. Blood, 40 Mass. [23 Pick.] 80; Richardson v. Skapfield, 45 Me. 386; Black v. Hoyt, 33 Ohio State 203; 14 Cyc., pp. 911-912 and notes.)

C. C. Richards and J. D. Call for defendant.

RESPONDENT'S POINTS.

The case of Hayes v. Boylan, 141 Ill. 400, 30 N.E. 1041, 1042, is very similar to the one at bar. It is a case where a father who had executed a deed to his adult children, handed it to one of them, telling him to put it in a box in the bank, used by both father and son for keeping valuable papers, and the son did so. The father retained possession of the land conveyed until his death. Held that the deed was inoperative for want of delivery. (Bovee v. Hinde, 135 Ill. 137; 25 N.E. 694; Jordan v. Davis, 108 Ill. 336; Cline v. Jones, 111 Ill. 563; Byers v. Spencer, 101 Ill. 429; 13 Cyc. 562 and notes 94, 95. 9 Am & Eng. Enc. Law, 154-155.)

"No special form or ceremony is necessary to constitute a sufficient delivery. It may be by acts or words, or both; but something must be said or done showing an intention that the deed shall become operative to pass the title, and that the grantor loses all right of control over it. The delivery need not necessarily be made to the grantee, but may be made to another in his behalf and for his use; but it is indispensable that the grantor shall part with control over the deed, and shall not retain a right to reclaim it. (Hayes v. Boylan, 141 Ill. 400, 30 N.E. 1041; Provart v. Harris, 150 Ill. 40, 36 N.E. 958; Wilson v. Wilson, 158 Ill. 567, 41 N.E. 1007; Shults v. Shults, 159 Ill. 654, 43 N.E. 800; Hawes v. Hawes, 177 Ill. 409, 53 N.E. 80; Stephens v. Ins. Society, 16 Utah 22; Nelson v. Nebo Co., 25 Utah 37; 6 Enc. of Ev. p. 155, also note under "Rule stated" p. 156; Bank v. McDonald [Ala.], 9 L. R. A. 646; People v. Brotherton, 47 Cal. 400; Place v. Minster, 65 N.Y. 105; Benjamin v. McElwaine, Richards Co. [Ind.], 37 N.E. 363; Tucker v. Finch [Wis.], 27 N.W. 817, 1 Jones on Ev., sec. 246.)

The common fraudulent design may be shown by subsequent participation in the fraud and its fruits, with a knowledge of the facts; and where there is proof of the common design to defraud, the declarations of one participant are admissible against the other, although made in his absence. (Lincoln v. Claflin, 74 U.S. 139, Book 19 Law Ed. 106; Rose's Notes on page 943 (inside page). Wiborg v. United States, 163 U.S. 656, Book 41: 298; People v. Hampton, 4 Utah 258; Snow v. Rich, 22 Utah 131.)

The husband can make no disposition of his property by deed or will that would deprive his wife of this statutory interest. It is an interest which she acquired by reason of her marriage with her husband, and an interest which the law should protect. (Smith v. Smith, 22 Colo. 480, 46 P. 129, 130; Manikee v. Beard, 85 Ky. 20, 2 S.W. 546; Smith v. Smith, 12 Cal. 226; Peck v. Brummagin, 31 Cal. 447; De Godey v. De Godey, 39 Cal. 164; Tucker v. Andrews, 13 Me 128; Young v. Carter, 10 Hun 196-201; 14 Am. & Eng. Enc. of Law [2nd Ed.], 252.)

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This action was brought by the respondent and cross-appellant to have declared void certain conveyances of various parcels of land, so far as affecting her rights therein as the widow of R. K. Wilson, deceased. The realty consists of residence and business properties in Brigham City, and farm, meadow, and orchard lands near by. The conveyances are referred to in the record as Exhibits A, B, C, D, E, F, G, H, and I. The respondent was the second wife of the deceased. The defendants and appellants are his sons, who at the time of the conveyances were from twenty-seven to forty-two years of age, and nearly all of whom were married and had families. The first wife of the deceased, Agnes Wilson, died September 1, 1899. The defendants are children by the first wife. The deceased married the respondent November 10, 1900. He was then seventy years of age as testified to by respondent, and seventy-seven years of age as testified to by his sons. The respondent was fifty-five. The deceased died intestate February 27, 1902. In January, 1899, the deceased and his first wife, Agnes Wilson, conveyed to the appellants the realty described in the Exhibits A, B, C, D, E, and F; and in August, 1899, the realty described in Exhibit G. The realty A and B was business property on which the deceased and his sons carried on a saloon business under the firm name of R. K. Wilson & Sons. G was the residence property of the deceased and his wife. The legal title to A, B, and G was in the name of Agnes Wilson. G is a lot adjoining the residence property. D is twenty-five acres of pasture land. E is farm land, and F meadow land. The legal title to C, D, E, and F was in the name of the deceased. H and I were conveyances of orchard lands made by the deceased to his sons Robert and Charles November 8, 1900, after the death of his first wife and two days before his marriage with the respondent. Respondent's action sought to have declared a widow's interest in all these lands. Her claim is based on allegations that, while the legal title to A, B, and G was in Agnes Wilson, nevertheless R. K. Wilson, deceased, was the equitable owner of those properties; that there was no sufficient delivery in 1899 of any of the deeds A, B, C, D, E, F, and G to pass title; that the deeds were unrecorded until two days before her marriage, and that she had no knowledge of their existence until after her marriage; and that on the eve of the marriage the deceased and the defendants entered into a conspiracy to defraud her of her marital rights, and in pursuance thereof effected a complete delivery of the deeds A, B, C, D, E, F, and G, and caused the execution and delivery of the deeds H and I for the same fraudulent purpose. Upon findings made by the trial court judgment was rendered in favor of respondent awarding her a widow's interest in fee to all the realty except A, B, and G. From this judgment both parties have appealed; the defendants contending that respondent is entitled to no interest in any of the lands, and the respondent contending that she is entitled not only to what the court awarded her, but also to an interest in A, B, and G.

Holding as we do, that there was a sufficient delivery of deeds A, B, C, D, E, F, and G at the time of their execution in 1899 to pass title, it is not necessary to determine whether the equitable title to A, B, and G was or was not in R. K. Wilson, deceased. The deeds having then been delivered, the deceased divested himself of all title possessed by him, both legal and equitable. The evidence, without conflict, substantially shows the following facts: The defendants before and after they attained their majority worked in common with their father, and through their labors and services for many years aided in the accumulation of the properties. Some of them worked and assisted about the saloon business; some of them worked on and looked after the farm; others looked after and attended to the cattle and stock business in which they were all jointly interested and engaged. A joint bank account was kept by them under the firm name of R. K. Wilson & Sons. The proceeds of the farm and stock business were all turned over to R. K. Wilson, deceased, or to Peter Wilson, and were placed and kept with the saloon account. Some of the defendants also contributed cash to the general fund; Peter contributing $ 5,000 which was obtained by him from the sale of a mining claim. All worked together as one family, and all lived from the property. When money for necessaries or pleasure was needed, it was taken from the business. All proceeds were placed in the general fund and used in the business. The father was the head of the firm, and all business was transacted in the name of R. K. Wilson & Sons. Under this partnershiplike arrangement, or co-operative plan, the father and sons carried on the business and used the properties for many years without dividing earnings or proceeds, or accounting among themselves. For many years the father had declared to divers persons his intention of deeding the realty to his sons. About thirty or forty days before the deeds were made, he stated to the banker with whom they did business that he and his wife were getting old, and that he...