Turner v. Warren , 160 Pa. 336 ( 1894 )

Opinion by

Mr. Justice Geeen,

This action was an ejectment for thirty-four acres of land in Delaware county. Both plaintiff and defendant claimed title from John H. Irwin. The plaintiff gave in evidence a deed for the land in dispute dated October 12, 1885, to Rebecca J. Elder, who died intestate and without issue, and the title to the land described in the deed passed under the intestate law to her two sisters Sarah C. Turner and Ella N. Heuckeroth. Mrs. Pleuckeroth subsequently conveyed to Mrs. Turner her undivided one half interest in the land, thus vesting in the plaintiff the whole estate. John H. Irwin, the grantor in the deed to Rebecca J. Elder, died in 1890, leaving a last will in which he devised all his estate, real and personal, to the defendant. The question is, which title shall prevail, that of the grantee in the deed or that of the devisee under the will ?

At the time the deed was executed Irwin was engaged to be married to Rebecca J. Elder, and in view of the approaching marriage conveyed this land to her on the agreement that after their marriage she should make a will devising the land to him in case he survived her. In about four months after the execution of the deed they were married, and in less than two years thereafter she died leaving no children. There is no evidence that she ever made the will contemplated by both when the deed was made.

It is objected by the defendant that there was no sufficient evidence of the delivery of the deed. As to this the testimony showed that the’ deed was prepared by Mr. Darlington, Irwin’s counsel, at his, Irwin’s, request, and sent by him to Irwin by mail; that on the day it bears date, Irwin, in company with Charles F. Heuckeroth, husband of Miss Elder’s sister, went before a notary of Philadelphia and duly acknowledged the deed in the presence of Heuckeroth, to whom he then handed it to be by him delivered to Miss Elder, and on the same day he did deliver it to her. About a month or six weeks after this Irwin handed this deed with others in a package of papers to Heuckeroth, with directions to place them in his, Irwin’s, safe, for Miss Elder, Heuckeroth being a manager for Irwin and having the combination to the safe. They remained in this safe until after Mrs. Irwin’s death, when, at the request of Irwin, Heuckeroth took them out and delivered them to him. The deed was then in the same condition as when put in; the signature was untouched. Mr. Irwin put the deed with other of his deceased wife’s papers, soon after, in the hands of his counsel, Mr. Darlington, where they remained until after Mr. Irwin’s death in 1890. On examination then Mr. Darlington discovered that the grantor’s signature to the deed had been erased. If Mr. Darlington and Mr. Heuckeroth were competent witnesses, certainly their evidence proved a delivery of the deed to the grantee, and, in view of the marital relation which soon after commenced between them, the possession of the deed was not inconsistent with such delivery. That a husband should place his wife’s papers in his safe, and that they should remain there until her death, needs no explanation, for it is entirely free from suspicion or doubt. As between strangers it would be improbable that the grantee in a deed would permit it, after delivery, to remain in the possession of the grantor. It is not so however where the grantee is the wife of the grant- or, and he has a safe for the keeping of valuable papers. Care would in such case prompt the wife to deposit the deed in her • husband’s safe.

As to the objection to the competency of Mr. Darlington as a witness on the ground that the communications of Irwin to him after his wife’s death were privileged, being his counsel, we do not think it can be sustained. Irwin consulted him with a view of taking out letters of administration on his wife’s estate, and handed him the papers belonging to her, among them this deed. There was no communication made which is protected by the confidential relation ; the delivery of the papers, the date of the delivery, and by whom delivered and in what condition they were found after Mrs. Irwin’s death. No professional confidence was violated in testifying to these facts. As administrator of his wife’s estate he and his counsel were representatives of that estate and not of Mr. Irwin individually.

Then as to the objection to Heuckeroth’s testimony on the ground of interest as the husband of Mrs. Irwin’s sister, who had by intestacy an interest in the land, we can only say the act of May 23,1887, clearly makes him competent on an assignment of his interest. Whether such assignment be in good faith is a question for the court. Heuckeroth testified absolutely that it was in good faith, that there was to be no reconveyance. The court permitted him to be sworn, leaving his credibility to the jury. In effect this was determining the good faith of the assignment by the court.

The evidence tending to show delivery of the deed was fairly submitted to the jury under proper instructions, and they found it was delivered. This vested the estate in the future wife from the moment of delivery. To revest it in the husband the mere erasure of his signature by himself, after his wife’s death, was wholly ineffectual.

It seems very clear the negotiations preceding marriage culminated in an agreement that he would immediately convey the land to her by deed, and after marriage she would devise it to him, and she did not do so. But her failure or neglect to make a will could not divest her legal title to the land, unless there were proof of fraud, and there is no such proof in the ease. At the time the deed was made, by his direction it was termed a marriage portion for his intended wife. The marriage was consummated and to that extent the purpose of the grantor was not disappointed. He knew his wife might not make a will, or if she made one might revoke or destroy it. He therefore assumed the risk that every expectant of benefits under a will runs, a change of mind in the donor.

Besides, the relation of this man and woman was wholly different after marriage from what it was at the time of the agreement. It was of a more confidential nature. Who can say that her neglect to make a will was not the result of an agreement between them after marriage, that an ante-nuptial arrangement was not abandoned by mutual consent.

We see nothing in any of the assignments of error that calls for a reversal of the judgment.

Judgment affirmed.