Ashby v. Roles , 116 Va. 21 ( 1914 )

Haerison, J.,

delivered the opinion of the court.

This controversy involves the validity and, if valid, the effect of a deed dated February 28, 1903, from George R. Ashby to Katie Roles.

The court is of opinion that the attack on the validity of this deed, that it was not delivered, cannot be sustained. It appears that for many years prior to his death, George R. Ashby and Katie Roles, with her family, lived together in the same home, where Ashby was cared for and received at all times the kindest and most considerate attention. He owned certain real and personal property, and on the 28th of February, 1903, about eight years prior to his death, he had prepared the deed in question, conveying to Katie Roles all of the property real and personal owned by him at the time, in consideration of his maintenance and support by the grantee for and during his natural life. After this deed had been duly signed and acknowledge by the grantor, he in person delivered it into the hands of Katie Roles who retained the same in her exclusive possession until immediately after the death of the grantor, when she had the deed duly recorded. It satisfactorily appears from the record that the execution and delivery of this deed was in pursuance of a previously expressed purpose and desire of the grantor to make the grantee the object of his bounty. It further appears that the only son of the deceased, who now attacks the validity of this deed, was alienated from his father and did not treat bim with filial respect or kindness. The subsequent dealing by the grantor with the property conveyed, directing the farming, disposing of the crops, and selling and conveying portions of the land, does not, under the circumstances of this case, cast the slightest suspicion upon the bona fides of the transaction. The grantor had been for many years living with the grantee, who it is shown always treated him with affectionate consideration, and after the deed was made it was not unnatural that she should refrain from interfering with his dealing with the property as he had always done. The property, it is true, belonged, under the deed, to the grantee, but if she had no objection to the grantor dealing with it as he did, surely no one else had any concern in the matter or any right to object. The record furnishes no support to the suggestion that because the grantor and the grantee lived in the same house,' the latter may have abstracted the deed from the grantor’s private papers and in that way acquired its possession; on the contrary, as already pointed out, the record clearly shows that the deed was delivered to the grantee by the'grantor in person and accepted by her.

It is clear from the record that the deed was legally delivered to the grantee and constitutes a valid exercise by the grantor of his undeniable right to convey his property to whomsoever he might please. This being so, there is no question that the grantee in the deed under consideration took the estate passing thereby that was not disposed of at the time of the grantor’s death.

The court is further of opinion that the preponderance of evidence supports the conclusion reached by the lower court, that the mare “Nancy” was owned by the grantor at the time that the deed of February, 1903, was made, and that' she passed under that deed and became the property of the grantee, Katie Roles.

The court is further of opinion that the evidence does not support the conclusion reached by the lower court that the balance in bank of $566.66, to the credit of George R. Ashby at the time of his death, was part of his property when the deed of February, 1903, was made, and that it passed under that deed to the grantee therein.

The record shows that George R. Ashby kept a running bank account in his own name from the time the deed of February,. 1903, was made until his death in May, 1911, and that this bank account was exclusively under his control and showed, at the time of his death, a balance of $566.66 to his credit. It appears that at the date of the deed of February 28, 1903, there was a balance on this bank account to the credit of the grantor of $950.66, which balance was in a few days thereafter entirely.checked out by the grantor. After this.balance had been extinguished the grantor continued to make deposits, and to check on the same until his death, when the balance appeared to his credit which is now the subject of this controversy. _ The deed of February, 1903, limits the property thereby conveyed to that owned and possessed by the grantor at the time the conveyance was made, and-it is impossible to say that the cash ieft to his credit in bank at the time of his death was property owned by him eight years before when the deed was made. The grantee contends that the balance in bank is what remained from the proceeds of sale, after its execution, of property embraced in the deed which belonged to the grantee; that the grantor had no other resource by which he could have raised the money deposited by him in bank after the deed was executed.

This contention is not established by the ' evidence, which tends to show that the grantor, throughout the eight years that intervened between February, 1903, and May, 1911, when he died, was actively engaged in conducting his business affairs. It further appears that much the larger part of the money deposited by him in bank after the execution of the deed of February, 1903, was so deposited before a sale was made of any part of the property embraced in the conveyance of February, 1903. In the light of the record it would be but an assumption to hold that George R. Ashby had no other resource than the property conveyed by him to Katie Roles from which he could have supplied the deposits made by him in bank after February 28, 1903. The presumption is that the money to the personal credit of a party in bank at the time of his death is his property and passes to his estate, and the burden is upon the party making an adverse claim to such a fund to establish such claim by clear and convincing proof. This has not been done in the case before us, and therefore the $526.66 to the credit in bank of George R. Ashby belongs to his estate and is not part of the property which passed to Katie Roles under the deed of February, 1903.

The circuit court having taken a different view as to this last-mentioned item, the decree complained of must be reversed and the cause remanded for further proceedings not in conflict with the views herein expressed.

Reversed.