Stuehm v. Mikulski ( 1941 )

Tewell, District Judge.

Nine children of George Mikulski, Sr., deceased, brought this action in equity in the district court for Sarpy county against Lillian Danford Mikulski, widow of said George Mikulski, Sr., to set aside a deed executed by said George Mikulski, Sr., to himself and said defendant. This deed, dated March 7, 1938, and recorded the second day thereafter, purports to convey the south half of the southeast quarter of section 6 and the north half of the northeast quarter of section 7, all in township 13 north, range 13 east of the 6th P. M., in Sarpy county, Nebraska, to George Mikulski, Sr., and the defendant, Lillian Danford Mikulski, husband and wife, “as joint tenants, and not as tenants in common.” Among the reasons assigned for cancelation of this deed by the plaintiffs in their petition are that such deed was procured by undue influence exercised by the defendant upon said George Mikulski, Sr., and that such deed, even if not procured by undue influence, failed to convey any title to the grantees therein on account of its form and substance. The trial court found and decreed that the deed was not procured by undue influence, and that its legal effect was to convey to each of the two grantees an undivided one-half interest in fee as tenants in common with no right of survivorship. The defendant has perfected an appeal to this court and the plaintiffs have perfected a cross-appeal.

Several members of the bar have filed briefs amici curise solely upon the question of what estate, if any, the deed involved would create in the grantees. The form of this deed, when executed without consideration and without reference to, and not for the purpose of carrying out, any contract that specified the characteristics of the estate intended to be created, raises a question new to this jurisdiction. Its decision is appropriate.

Long prior to the execution of this deed and at the time of its execution, George Mikulski, Sr., was the sole owner of the fee title to the land involved. The sole grantors in the deed as well as the sole grantees were the fee owner and his wife. Both the conveying clause and the habendum clause recite that the land is conveyed to the grantees as joint tenants and not as tenants in common. Furthermore, the deed recites, in effect, that it is the intent of the parties that in the event of the death of one grantee the other shall become invested with the fee simple title. That the parties to the deed intended to create a joint tenancy with right of survivorship as such estate was known at common law cannot logically be questioned. Is a deed of such a character capable of conveying an estate in joint tenancy with right of survivorship as such estate existed at common law is the question involved.

A solution of this question involves a consideration of the exact nature of such an estate. An attempt to define such an estate by the words of one sentence would be of little aid to an understanding of its nature. To detail some of the factors that must exist while such an estate exists will be of more aid. The law books seem to define such an estate as hereafter stated. Such an estate must be created in two or more persons at the same time by the same conveyance, and the holders of such an estate must be given an equal and like interest therein and be given equal and like right to possession of the corpus of the estate. That there must be a unity of possession, a unity of interest, a unity of time and a unity of title in the holders of such an estate in order for it to exist is one statement that is often used in law books to express its nature. Any act which divests the interest of a portion of the holders of their estate during their lifetime, such as a conveyance by such portion, or a sale of the interest of such portion under execution, operates as, what in the law is called, a severance of the estate of such portion. The four unities heretofore listed must not only come into being with the creation of such an estate, but must also continue to exist while the estate exists, and the destruction of any one of them as to all holders will destroy the estate, even though all holders still live. For cases dealing generally with the nature of a joint tenancy, see 33 C. J. 904; Fleming v. Fleming, 194 Ia. 71, 174 N. W. 946; Staples v. Berry, 110 Me. 32, 85 Atl. 303; 2 Blackstone, 180; 1 Tiffany, Real Property (2d ed.) 625.

In line with statements made in the above discussion of the nature of an estate in joint tenancy as known at common law with right of survivorship, it has been held that one of the owners of such an estate may acquire the interest of the others by adverse possession (Smith v. Hogg, 195 Ky. 265, 242 S. W. 354) ; that upon the death of one of two cotenants holding such an estate, the survivor takes the entire fee free from the debts of the deceased co-tenant (Wood v. Logue, 167 Ia. 436, 149 N. W. 613, Ann. Cas. 1917B, 116). We do not intend that any statement made in the above discussion of the nature of such an estate shall be a holding that any one statement therein contained is the law of this state. Such discussion is merely for the purpose of considering- the nature of the estate under discussion, as such estate was known at common law.

It will be remembered that this court has held that estates in joint tenancy as they existed at common law have not been abrogated by statute in this state. Sanderson v. Everson, 93 Neb. 606, 141 N. W. 1025. Under the common law, one could not convey real estate to himself. No statute of this state has changed such rule. In the absence of legislative enactment, we are not ready to say, even in order to appear “modernistic,” that one holding a fee title as an individual in real estate may effectively, and without the intervention of others, convey such real estate to himself as an individual with restrictions upon his right of alienation, or so as to change the nature of his estate. In order for an estate in joint tenancy as known at common law with right of survivorship to have been created by the deed involved in this case, George Mikulski, Sr., either had to convey to himself, and also in so doing to change the nature of his estate, or such estate must have come into being without the required unity of time or title. The defendant urges that the common-law rule that prevented one holding real estate in fee from conveying to himself and another and creating a joint tenancy is archaic, and that the reason for its existence has ceased to exist. To preserve the nature of various estates that the law allows to exist could not be archaic. To support this contention the defendant cites the following cases: Currier v. Teske, 84 Neb. 60, 120 N. W. 1015, and cases therein cited on the point under discussion. In each of these cases the question of the validity of a deed of land in fee direct from a husband to his wife without the intervention of a trustee was involved. Such a deed may convey a valid fee title, although it could not at common law, for the reason that the wife was restricted in her power of contract, and was regarded as one and the same person as her husband. The married woman’s act enlarged the rights of the wife and use of the trustee was no longer necessary. These cases do not support the defendant’s contention. The defendant cites the case of Neneman v. Rickley, 110 Neb. 446, 194 N. W. 447. In that case a right of survivorship was held to have been created by specific contract, but a joint tenancy as known at common law was not created. The property was subject to the debts of the deceased cotenant. The case is not in point. In this case, to preserve the four unities necessary in an estate in joint tenancy must defeat intent. To preserve those unities is the duty of the court. Courts should not create new kinds of estates, heretofore unknown. If any one of these four unities is to be declared unnecessary in certain cases, the enumeration of such “certain cases” and the scope and breadth of such enumeration must be by legislative act. Too many and varied are the acts of one common-law joint tenant that, under the law, may constitute a severance, and destroy the joint tenancy during the lifetime of all joint tenants, on account of the destruction of one or more of these four unities, to make it allowable for a court to say, without legislative enactment, that a joint tenancy as known at common law may exist, in certain cases, in the absence of one or more of these four unities. In this case it is well to remember that there is nothing in the deed involved, nor in any act out of which it arose, from which it may be said that the parties intended that the joint tenancy should be other than joint tenancy as known at common law with all the attributes and incidents inherent therein.

The defendant urges that to declare that the deed involved did not create a joint tenancy would defeat many hundreds of such deeds now of record in the various counties of Nebraska, and says in her brief that an investigation has disclosed that 55 such deeds have been placed on record in Dodge county since the decision in Neneman v. Rickley, supra. As heretofore pointed out, that case did not hold that the facts involved created a joint tenancy. The question presented by the form of the deed involved is now before this court for the first time. No doctrine of stare decisis is involved. The rule herein announced will cause far more certainty in real estate titles containing conveyances that purport to creat a joint tenancy, than would a rule that allowed a court to say that in “certain cases” a joint tenancy may exist in the absence of one of the four required unities. Under such a rule an examiner of such titles would wonder whether the facts presented to him was one of those “certain cases,” and send his client to court to find out.

We hold that the deed in controversy was not capable of creating a joint tenancy as known at common law with right of survivorship in George Mikulski, Sr., and the defendant. In that view we are supported by the following authorities: Deslauriers v. Senesac, 331 Ill. 437, 163 N. E. 327; Breitenbach v. Schoen, 183 Wis. 589, 198 N. W. 622; Pegg v. Pegg, 165 Mich. 228, 130 N. W. 617. As supporting an opposite view the defendant cites among others the following cases: Colson v. Baker, 42 Misc. 407, 87 N. Y. Supp. 238; Saxon v. Saxon, 46 Misc. 202, 93 N. Y. Supp. 191; Lawton v. Lawton, 48 R. I. 134, 136 Atl. 241; Ames v. Chandler, 265 Mass. 428, 164 N. E. 616; Dutton v. Buckley, 116 Or. 661, 242 Pac. 626; Coon v. Campbell, 138 Misc. 567, 240 N. Y. Supp. 772; and Boehringer v. Schmid, 254 N. Y. 355, 173 N. E. 220. In some of these cases a statute had changed the common-law rule, and others are not in point or their logic untenable.

The defendant urges that section 76-109, Comp. St. 1929, is controlling. This section, commonly referred to as “the intent statute,” reads as follows: “In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice to carry into effect the true interest (intent) of the parties, so far as such intent can be collected, from the whole instrument, and so far as such intent is consistent with the rules of law.” This statute has been a prolific parent of errors, and at the same time has perhaps greatly encouraged and hastened the use of proper rules of construction of written instruments of conveyance that courts should have, and belatedly would have, adopted without its existence. This statute seems first to have appeared in Nebraska as one of the acts of the second territorial legislature in 1856 and to have been an exact copy of a section of the property code of New York in 1828, and upon casual search does not appear ever to have been amended. An interesting and helpful article upon this section by Dean Foster of University of Nebraska College of Law will be found in volume 8, Nebraska Law Bulletin, p. 148. If it were repealed today, it is very difficult, if not impossible, to conceive how either rules of construction or of substantive law would be in any manner changed. It does not stop with the word “parties” contained therein, nor does it purport to amend or in any manner modify any rule of substantive law existing or created in the future, as it has been many times erroneously assumed to have done. Its causing this false assumption is the secret of its powers as a parent of errors. Examples of such errors are found in the following cases: Albin v. Parmele, 70 Neb. 740, 98 N. W. 29; Moran v. Moran, 101 Neb. 386, 390, 163 N. W. 315, 1071. Following the word “parties” in this statute occur the words “so far as such intent can be collected from the whole instrument.” This clause admonishes the courts to consider the entire instrument, and not allow, for example, a direct and unqualified conveyance in the clause of conveyance and habendum clause to nullify superadded words that would, if given effect, create a legal limitation upon the clause of conveyance. This clause is still a rule of construction. The last, too often unnoticed, clause is “and so far as such intent is consistent with the rules of lato.” (Italics ours.) It has long been recognized that public policy demands that certain limits, such as the rule against perpetuities, the rule against certain restraints on alienation, be placed upon freedom in the conveyance of real estate, however clear the intent of the one making such conveyance may be. To enforce any of these legal restraints, the intent of the one making the conveyance must necessarily be defeated. To enforce the rule in Shelley’s Case, which, perhaps, the legislature should abolish, must defeat intent.

Regardless of any previous expressions of this court concerning this intent statute that may be considered at variance with the interpretation thereof as herein given, we adopt the interpretation above stated as the correct meaning of such statute so far as such interpretation extends.

By their cross-appeal the plaintiffs raise the question whether the deed involved conveyed any interest in the property because of the exercise of undue influence in its procurement. To answer this question involves a consideration of all the evidence. George Mikulski, Sr., was married to Mary Schram in February, 1905, and to this union were born the nine children, who are the plaintiffs. On August 14, 1934, this first wife, who is hereinafter referred to as Mary Schram, died intestate. On June 1, 1935, the defendant, then named Lillian Danford, and theretofore unknown by any of the plaintiffs or their father, was employed as a housekeeper by said father. At the time of such employment George Mikulski, Sr., was living upon the farm involved, with four of his sons, all of whom were unmarried, and three of whom were minors. Prior to such employment and after the death of Mary Schram, the said father and his sons had employed a lady as a housekeeper a portion of the time, and for a portion of such time had “batched.” By about the middle of July, 1935, or about six weeks after the defendant first met George Mikulski, Sr., he and the defendant were engaged to be married. They were married on August 23, 1935. In September, 1935, George Mikulski, Sr., and his second wife were negotiating for a sale of all land involved with a view to moving to California. An action in equity was thereupon broug-ht by a portion of the plaintiffs against George Mikulski, Sr., and the defendant for the purpose of establishing a trust in their favor for what they alleged was their share of money advanced to George Mikulski, Sr., by their mother, Mary Schram, from money inherited by her from the estate of one of her parents. Such money is shown to have been upwards of $13,000 in amount. About $9,000 of it was used by George Mikulski, Sr., to pay mortgages upon the farm involved. About the time such action for the establishment of such trust was begun, a proceeding was started in the county court of Sarpy county to secure the appointment of John Mikulski, one of the adult plaintiffs herein, as guardian for his three minor brothers, the youngest of whom was then about 14 years of age. Such an appointment as guardian was made on October 26, 1935. In the proceedings to probate the estate of Mary Schram, of which George Mikulski, Sr., was administrator, pleadings were filed by a portion of the plaintiffs to secure an accounting by the administrator. About April 15, 1936, a settlement, expressed by written agreement, was reached between George Mikulski, Sr., and all his children, by which $5,750 was paid to the children in full settlement of the action to establish a trust and of said proceedings for an accounting as administrator, and by which all interest of the children in the estate of their mother was assigned to their father. About May 14, 1936, George Mikulski, Sr., executed a will by which he gave each of his children $1, provided for'the payment of his debts, and gave all the rest and residue of his estate to the defendant. In October, 1937, George Mikulski, Sr., became ill, a portion of the cause of which was diagnosed as cancer of the stomach. The defendant was then informed of the existence of such cancer. On March 7, 1938, when George Mikulski, Sr., was quite ill, the deed in controversy was executed. On March 17, 1938, he was taken to a hospital, and on April 3, 1938, was taken back to his home. On May 6, 1938, George Mikulski, Sr., died.

The facts above stated form only the skeleton of the tragedy reflected in the record. The bill of exceptions consists of 1,153 pages, each of which has been carefully read. To outline the evidence with greater detail than is herein done would serve no useful purpose. In addition to the skeléton of the facts above stated we mention a few of the salient conclusions that may be fairly deducted from the evidence. The deed in controversy recited a consideration of $1 and the record does not disclose any agreement by the defendant to pay anything for such deed. At the time of the defendant’s marriage to George Mikulski, Sr., she was about 47 years of age, he about 67 years of age. Prior to the defendant’s coming to the Mikulski home as housekeeper on June 2, 1935, no ill feeling had ever existed between George Mikulski, Sr., and any one or more of his children. Some of the older children had graduated from high school. The youngest child, then about 14 years of age, had been sent to high school as a' freshman the preceding winter, and application was made in June, 1935, to send him to high school the following winter. All of the four daughters were married and living in homes of their own. Four of the sons were not married and were living with their father. The oldest of these four, George, Jr., had farmed the land involved under lease from his father for the year 1935. Within about six weeks after the defendant’s arrival as a stranger she was engaged to be married to her employer, and shortly after such engagement began to refuse to wash the shirts and underclothing of the boys, to refuse to make their beds, and to object to a neighbor boy eating at the Mikulski home. This boy had played and eaten at the Mikulski home quite often for years. In all of this she was upheld by her employer. During August, 1935, a portion, at least, of the boys decided that Miss Danford should be discharged, and they told her to pack her belongings and they would take her to town. She replied “Oh Yeah,” and went into her room. They supposed she was preparing to leave. Instead she left the house through a window and a short time later entered the farm yard in a car driven by Georg*e Mikulski, Sr. That same day complaint was made to the county attorney by the defendant and her employer in an effort to obtain the arrest of the boys. A few days after this incident most of the plaintiffs gathered at the Mikulski home in an effort to talk matters over with their father. The defendant attended the conference, although asked by the children to let them talk with their father alone. During this conference the father informed the children that they had nothing coming from their mother’s estate, and that all money had been spent. The conference ended by George Mikulski, Sr., leaving the room with the defendant at her request. A few days after this conference the marriage of the defendant and the father occurred. No objection to this marriage is shown to have been voiced by the children or any of them. The boys continued to reside at their father’s home for a few weeks. Through some source the father was made to believe that the boys, or some of them, arranged to have a poisonous water moccasin placed in the house. Some cream merely foamed, and could not be made to produce butter, when churned, Through some source the father was made to believe that poison had been placed in this cream, and that Frank, the youngest boy, had been seen about the premises just prior to this incident. The boys left their father’s home in early September, 1935, the youngest going to live with his sister in Kansas City, as no arrangements to send him to school had been mentioned by the father.

At the time of the execution of the deed involved on March 7, 1938, the father gave instructions for drawing a will, and also for drawing a lease to the farm. Such a will was drawn and executed about March 8, or 9, 1938. It was of the same general nature as was the will of May 14, 1936, above mentioned, with the exception that it provided for $100 to be paid to one Father O’Hearn for masses. About this time George Mikulski, Sr., gave directions for. the preparation of written directions to an undertaker as to his funeral and place of burial. He directed burial in a cemetery other than, but near, the cemetery wherein his first wife and his father and mother were buried. He had several times expressed a wish not to be buried in the same cemetery as was Mary Schram.

The record clearly supports a finding to the effect that the defendant knew of the execution of each and all of the instruments above mentioned, and was active in making arrangements for the preparation of the. two wills mentioned above and of the deed in controversy. She was present at the execution of most of them. It is worthy of note that none of the children ever had heard of the poisonous snake incident or of the cream incident above mentioned until the trial of a contest of the validity of the second will above mentioned after the death of their father. One of the attorneys for George Mikuiski, Sr., in the negotiations to bring about the written settlement whereby the children assigned their interest in their mother’s estate, which has been mentioned above, and who testified as a witness for the defendant in this case, admitted, in effect, in his testimony, that the attorneys involved had much more difficulty in obtaining concessions from George Mikuiski, Sr., in negotiations for such settlement when the defendant was present than when she was absent. In a trial in the county court the defendant admitted she had never done anything in an effort to bring about more amiable relations between the children and their father, and when asked as to whether she would have allowed the minor boys to move back to her home, said “Why should I?”

That undue influence upon a grantor in a deed is a subtle thing, that it is usually exercised in secret, and that it is not usually susceptible of direct proof; and that it may be shown by circumstantial evidence alone are statements, the truth of which need not be substantiated by citation of authorities. It is useless to attempt to classify the various influences, even by groups, that may constitute undue influence. Its existence, arising usually from deceit or fraud, is established when it is clearly shown that the opportunity to exercise it existed, that an attempt to exercise it was designedly made, and that its effect upon its victim was such as to cause his act to be the result of such influence, and not to flow from the exercise of his free and deliberate will. Gidley v. Gidley, 130 Neb. 419, 265 N. W. 245. Hundreds of circumstances other than those mentioned above are shown in the evidence. That the affections of George Mikulski, Sr., for his children were completely alienated between the coming of Miss Danford as a stranger on June 2, 1935, and before any legal proceedings were begun by any of the children in September, 1935, is worthy of note. Many stories, quite apparently false, derogatory of some one or more of the children, had been told to George Mikulski, Sr., by the defendant, if one is to judge from declarations shown to have been" made by him prior to his death. We conclude from the record that the deed involved herein should be canceled on account of having been obtained through undue influence.

For reasons above stated, the decree of the trial court is reversed and the cause remanded, with instructions to enter a decree canceling and holding for naught the deed involved in this suit. Costs in this court are taxed to the defendant, Lillian Danford Mikulski.

Reversed.