Barker v. Smith ( 1892 )

Grant, J.

Complainant and bis wife were married January SO, 1839. In 1845 lie purchased 40 acres of land, and shortly after, with his wife, settled upon it, and lived there until her death, November 9, 1889. They were possessed of but little property aside from this 40 acres. She was an invalid, and was practically helpless for the last 35 or 40 years of her life. A large portion of his time was spent in taking care of her, even doing the household work. This statement is material only as showing that she did not contribute to the accumulation of the property. Both were zealous members of the New Jerusalem Church, which had a college in Ohio known as the “Urbana University." In July, 1876, she was seriously ill, and neither she nor her friends expected that she would live long. July 1, 1876, complainant wrote out a deed to his wife of the premises in question. The deed was acknowledged July 6 and recorded July 7 of the same year. July 11, 1876, she executed her last will and testament, devising the premises to Urbana University. On the same day that he wrote the deed he also wrote a letter to the president of the university, in which he stated that his wife was gradually failing, and would probably leave this world at no very distant day; that she had property — real estate— in her own right, worth, in his judgment, $10,000 or $12,000, which she intended to bequeath to the New Church, to apply towards some of its many uses; that Bhe would like very much to help the university, but wanted first to see that women had the same privileges there that men had. July 5 an answer was sent, saying that it was the intention of the trustees to afford equal facilities and privileges to both sexes. In 1878 she executed a codicil to this will, devising to complainant a life-estate. Both the will and the codicil were in the handwriting of the complainant. After her death the will was presented for probate by the university. It was contested by the defendants, and probate was denied on account of the failure to prove by the witnesses that it was signed by Mrs. Barker in their presence and in the presence of each other.

Mrs. Barker left seven heirs, aside from her husband, four of whom voluntarily released their interest to him. The defendants refused to do this, and the bill in this case is filed to set aside the deed from complainant to his wife, on the ground of the total failure of the consideration thereof. The defendants in their answer set up (1) the laches of complainant; (2) the lapse of time; (3) the statute of frauds; and (4) the statute of uses and trusts. The cause was heard in open court, and the substance of the decree is as follows:

1. That complainant on July 1, 1876, was the owner of the premises.

2. That about the same time he and his wife were desirous of making a gift to Urbana University, and thereupon entered into an agreement whereby, in consideration that she would devise the premises to that university, he would convey them to her, she being then daily expected to die, whereby she would have the pleasure and credit of the gift which both desired to make to said university.

3. That on or about July 6, 1876, he executed said agreement, by making, executing, and delivering to her the deed.

4. That on July 11, 1876, she made her last will and testament in accordance with the agreement.

5. That she died November 9, 1889, said agreement having never been abrogated, and that the will was refused probate for the reason already given.

6. That, by reason of the failure to probate said will, the consideration moving complainant to make such conveyance to his wife had wholly failed.

7. And that the deed be canceled and held for naught.

The deed to Mrs. Barker was an ordinary quitclaim deed, expressing a mere .nominal consideration, and containing the usual habendum, clause:

“To have and to hold the said premises to the said party of the second part, and to her heirs and assigns, to the sole and only proper use, benefit, and behoof of the said party of the second part, her heirs and assigns forever.”

Under this record three questions are presented, one of fact and two of law, viz.:

1. Was this property conveyed by Mr. Barker to his wife with the distinct understanding and agreement that she would devise it to the Urbana University, and did she execute a will in accordance with that agreement?

3. Was such agreement, if made, void by the statute of frauds and the statute of uses and trusts?

3. Is the right of the complainant to relief barred by laches?

1. I think the finding of the court upon the question of fact is sustained by the evidence. One witness testified positively that Mrs. Barker told him that her husband had deeded the land to her for the purpose of giving it to the university, that they were agreed upon it, and that it was the wish of both. At the time he wrote to the president of the university the deed had not been executed, though written out, and both evidently awaited the reply to that letter before consumating the agreement. Upon the receipt of the letter from the president |avorable to the terms upon which she desired that the university should ultimately receive the property, the deed and will were executed. On July 21 Mr. Barker replied to the letter of July 5, evidently written for both himself and wife, stating that they thought that the female department should be placed on the college ground, and that she would gladly do what she could to help it forward. To this letter she added a postscript. It is evident, therefore, that she knew the contents of that letter. It is contrary to human experience and to reason that he, in anticipation of her death, should convey the property to her absolutely. Neither was under any obligations to her relatives, and neither contemplated the ultimate transfer of any interest in the land to them.

2. The only doubtful and difficult question in the case is whether the parol evidence, together with the letters, was admissible to connect the deed and the will, and to show the consideration upon which the deed was made. If the university were attempting to establish a trust, without any will or written declaration on the part of Mrs. Barker, or if complainant were seeking to show that he deeded the property to her to be held in trust for himself or some other person, parol evidence would be incompetent, both under the statute of frauds and the statute of uses and trusts. Such are the cases cited by the defendants. Dean v. Dean, 6 Conn. 285; Titcomb v. Morrill, 10 Allen, 15; Gerry v. Stimson, 60 Me. 186; Taylor v. Sayles, 57 N. H. 465; Shafter v. Huntington, 53 Mich. 310.

I think the agreement was fully executed by both Mr- and Mrs. Barker, and that it was sufficiently, evidenced? in writing by the letters written by Mr. Barker with the-knowledge and assent of his wife, if not by her express; direction, and by the will executed contemporaneously with the deed. I also think that the parol evidence of the declarations of Mrs. Barker at the time was admissible for the purpose of connecting the will and the deed! together as one transaction, and to show the consideration and the agreement. Carmichael v. Carmichael, 72 Mich. 76. In that case, pursuant to a mutual agreement, resting partly in parol, a husband and wife made mutual wills. The wife accepted the provisions made in her favor by her husband’s will. After the death of the husband; the wife executed a deed in violation of her will and the» agreement between her and her husband, which rested. partly in parol. My Brother Morse, speaking for the Court, said:

“We have no doubt, from the two wills and their terms, and the oral evidence connecting them, that the father and mother came to a mutual understanding and agreement as claimed by the complainants.'”

It was also held that, if the contract were an oral one, a sufficient performance had been shown to take it out of the statute.

In my judgment, the present case is within the rule of that case. Both performed the agreement, and rested for many years content with it, and supposing the will to be valid. It failed of probate only because the witnesses thereto could not testify to the formalities of its execution which the law requires. The consideration for the deed has therefore failed, and in equity the land must be considered as belonging to the grantor, rather than to the heirs of Mrs. Barker, to whom neither ever intended it should go.

3. Complainant has been guilty of no laches. He had no right of action until the death of Mrs. Barker and the failure to probate her will. He moved within reasonable time after that event. He sought to obtain what he considered his just rights by negotiation. Having failed in this, he immediately filed the bill in this cause.

Decree affirmed, with costs.

Long, J., concurred with Grant, J.