Blaine v. Blaine , 202 Ill. App. 453 ( 1916 )

Mr. Justice Eldredge

delivered the opinion of the court.

By the stipulation of facts it is conceded that the grantor parted with all control over said deeds when they were delivered in escrow.- Under the repeated decisions of the Supreme Court this constitutes a delivery of the deeds, and that question is not involved in this case.

At common law where a tenant for life gives a lease rendering a yearly rent, and dies in the course of the year before the date appointed for the payment of the rent, the rent cannot be apportioned. The tenant may quit the premises, if he chooses, on the death of the lessor, and pay no rent to any one for the occupation since the last day appointed for the payment of the rent. Wilson v. Hagey, 251 Ill. 452. In the ease of Hoagland v. Crum, 113 Ill. 365, it was held that section 15, chapter 10, of the Statute of George II, which gave the executor or administrator of the life tenant on whose death determined the right to recover of the tenant a ratable proportion of the rent from the last day of payment to the death of the lessor, had never been adopted in this State and that the rule at common law was then still in force. The Act of 1897 was passed for the purpose of abrogating the rule at common law, and applies to all cases where a life tenant demises premises and dies either before or after the rent becomes due, and includes rent payable in grain not yet harvested. Wilson v. Hagey, supra.

The determination of the question at issue in the case at bar depends upon what title, if any, passed from the grantor to the grantees in these deeds upon their delivery in escrow, and this largely depends upon the intention of the grantor when he executed and delivered the deeds.

In the case of Stone v. Duvall, 77 Ill. 475, Washington Duvall and Mary, his wife, each had a small amount of real estate when they were married and they executed a deed conveying the property owned by Duvall to his daughter by a former marriage, Mrs. Mary Stone. By another deed the wife’s real estate was conveyed to her son by a former marriage, Allen ’Agnew. These deeds were acknowledged before a justice of the peace who was directed by the grantors to have them recorded and to hold them until the death of the parties and then deliver them to the respective grantees. Subsequently Mary Stone died leaving her husband and several minor children surviving her'. The deeds had been recorded by the justice of peace as directed and held by him until after Mrs. Stone’s death, when Duvall took the deed which had been executed to her from the justice. Duvall and his wife then filed a bill in chancery making the children and husband of Mrs. Stone defendants, for the purpose of having the deed which he and his wife had executed to her set aside on the ground that it was not made in pursuance of their intentions and had never been delivered to the grantee. The court held that there had been a good delivery, and then discusses the effect of the delivery of a deed as an escrow and said: “But in such a case, the delivery only relates back to the first delivery so as to carry out the intention of the grantor, and to vest the title. It would not give the grantee a right to intervening rents and profits. So in this case, the deed is an escrow, that will not take effect until Duvall’s death, when it may be delivered to the heirs of the grantee, and it will be held to have taken effect so as to have vested such a title in the mother as to pass the fee to them. Until that time, Duvall will be entitled to the use of the property as though he had, a life estate, and the children of Mrs. Stone the remainder.” The deed in the Duvall case, supra, was a straight deed of conveyance without the reservation of any life estate, and it was held that Duvall would have the use of the property, “as though he had a life estate, and the children of Mrs. Stone the remainder.” In the case of Shackelton v. Sebree, 86 Ill. 616, the deed was a warranty deed containing the provision: “This deed not to take effect until after my decease—not to be recorded until after my decease. ’ ’ In discussing the rights acquired under this deed it was said: “Was this deed void, or did it operate to convey the fee at the death of the grantor? Had he conveyed a life estate to another, or had he conveyed to another to hold in trust for him during his life, then it would have been free from all doubt. Or had he in the same instrument reserved a life estate to himself, we apprehend that it will be conceded that the title would have passed to the grantee. Then* in substance, and, if not, in form, in what does this differ from the last two supposed casesf Had the life estate been conveyed to another for the use of the grantor, without creating an active trust, the life estate would, under the statute of uses, have vested in the grantor precisely as it did u/nder this deed. Witham v. Brooner, 63 Ill. 344. And had he expressly reserved in this deed a life estate, he would have held in the same manner. If, then, in either of these cases, the grantor could thus hold the title necessary to support a remainder, why not when, by operation of law and construction of the deed, he holds a life estate in legal effect the same?

“We are unable to perceive any reason in law or in fact. * * *; but be that as it may, here the remainderman was in being, named as grantee, and no reason is seen, since livery of seizin has been abolished, why the fee in remainder did not vest on the delivery of the deed, which has been adopted as a substitute for livery.” In the case of Harshbarger v. Carroll, 163 Ill. 636, the deed in controversy was a warranty deed and contained this clause, “only to take effect at the death of the grantor.” The court said: “By the act of delivery the title to the fee in the lands in controversy vested in Sylvia Harshbarger, reserving a life estate in the grantor.” In the case of Latimer v. Latimer, 174 Ill. 418, the case of Shackelton v. Sebree, supra, was quoted and approved upon this question. In the case of Bowler v. Bowler, 176 Ill. 541, one of the deeds in question contained the following clause: “This deed not to be of any force and effect until after the death of' said William P. Bowler.” The court said: “That this instrument was a present conveyance of a remainder after the death of William P. Bowler is too well settled by previous decisions of this court to need extended discussion.” In Hathaway v. Cook, 258 Ill. 92, the deed provided: “It being understood that this deed is to go into effect upon the death of the grantor, Ann Jane Cook.” From the opinion this danse is apparently treated by the parties and the court as a reservation of a life estate. In the case of Thurston v. Tubbs, 257 Ill. 465, the deed there under discussion contained the following clause: “This deed is to be delivered to the grantee after the death of the grantor.?’ This deed was executed and delivered to William Jones to hold as an escrow until the death of the grantor. The decision after reviewing a great many cases uses the following language: “Such a deed, in fact, takes effect, not at the death of the grantor, but immediately upon being delivered in escrow, if such act is attended with circumstances clearly evincing such intention on the part of the grantor. (Latimer v. Latimer, supra; Harshbarger v. Carroll, 163 Ill. 636.) We think it clear, under the evidence, that Viekerman Robinson intended these deeds to operate as a complete divestiture of his title at the time they were executed and delivered to J ones. If this be true, the title passed out of him upon the delivery of the deeds, and hence he had no interest in the premises in controversy at the time of his death, and the inclusion of such premises in his last will constitutes a cloud upon the title of appellees, which a court of equity has jurisdiction to remove.” In the case of Hill v. Kreiger, 250 Ill. 408, the deeds provided that possession was to be given at the death of the grantor, and the court held: “The grantor’s intention to presently vest title in the grantee in the case of a voluntary settlement is regarded as of more importance than the mere manual possession of the deed.” In the case of Vaughn v. Vaughn, 272 Ill. 11, the court held: “A deed made as a voluntary settlement may be effected to vest title in the grantee although it is retained by the grantor in his possession until his death, if other circumstances do not show an intention contrary to that expressed on the face of the deed. The grantor may deliver the deed either to the grantee or to a stranger for his use, and an acceptance by the grantee will be presumed from the fact that the deed is for his benefit, especially if the grantee is an infant. The test in all cases is the intent with which the act or acts relied upon as equivalent or a substitute for actual delivery were done, and in determining the question whether a deed of voluntary settlement has been delivered, the grantor’s intention to vest title in the grantee is regarded as of more importance than the mere manual possession of the deed.—Rivard v. Walker, 39 Ill. 413; Cline v. Jones, 111 id. 563; Miller v. Meers, 155 id. 284; Baker v. Hall, 214 id. 364; Henry v. Henry, 215 id. 205; White v. Willard, 232 id. 464.”

From an interpretation of these cases and the language used in the written directions delivered with the deeds, we think it clear that it must be held in the case at bar that it was the intention of the grantor to presently convey a title in fee to the respective grantees, the enjoyment of which to be postponed until his death, or, in other words, that the effect of the deeds was to reserve a life interest in the grantor with the remainder in fee to the grantees. There can be no question under the facts in this case but that some title or interest was conveyed to the grantees and that some title or interest remained in the grantor. There can be no question but that upon the death of the grantor, the grantees become seized in fee of the property. The only estate that the grantor could retain would be that of life tenant. Under the circumstances no other estate is known at law. It was held in the case of Stone v. Duvall, supra, that the grantor “will be entitled to the use of the property as though he had a life estate.” We can see.no distinction between this and a life estate itself. In any event considering the purpose and object of the Statute of 1897, the grantor having been entitled to the use of the property as though he had a life estate, brings this case within the provisions of the act, and the executor should account to the estate for the proportionate share of the corn rents accrued at the time of the death of the grantor.

The judgment of the Circuit Court is reversed and remanded with directions to sustain the objections to the report and order the executor to account for said rents.

Reversed and remcmded with directions.