Chapin v. Nott

Mr. Justice Ricks

delivered the opinion of the court:

In this case the proof indisputably shows that Isaac Berry, the grantor, was seized of the land in question, subject to an inchoate right of dower of his daughter, Florence Chapin, appellant here, in a small portion of it; that he was seventy-four years of age, a widower, and that appellant was his only child; that he was seized of an estate consisting of the land in question and other real estate and about §10,000 in money; that appellant resided at Pine Bluff, North Carolina, with her husband, and that Isaac Berry resided at Lewiston, in Illinois; that appellant had one child, named Maud, and that appellant and her child were the only direct heirs of Isaac Berry; that a portion of the time the appellant and her daughter spent at Lewiston, and when there, lived with the grantor; that the property in question was called the “home farm;” that on January 13, 1900, Isaac Berry concluded to convey most of his real estate to his daughter and grand-daughter, and to that end caused two deeds to be prepared, one to the daughter, the appellant, for certain lands, and the other to his- grand-daughter, Maud Chapin; that these deeds were made in contemplation of a visit to his daughter and grand-daughter at their home in North Carolina, and were properly acknowledged and filed for record on January 16,1900; that when they were filed for record the grantor learned that he could not get them in time to take them with him on his contemplated visit, and directed that they be recorded, he paying the fee therefor, and mailed to him at the home of his daughter, which was done; that while there he delivered the two deeds to appellant, who retained the same until they were produced by her at the hearing of this case, pursuant to notice for that purpose. The evidence further discloses that on his return from his visit to his daughter the grantor told a number of persons that he had conveyed his real estate to his daughter and grand-daughter; that he had conveyed to his grand-daughter, Maud, the “home farm.”

Appellant now urges and relies upon three grounds for reversal of the decree of the circuit court. The first ground is, that there was no sufficient delivery of "the deed to effect a conveyance of the land to Maud Chapin. In view of the condition of the grantor’s family, and the extent of his estate and the manner of the conveyances made, at the time the deed in question was made and delivered to the persons to whom and for whose benefit it was made, it would seem the only reasonable inference that can be drawn from the transaction is, that it was a voluntary settlement of Ms property upon Ms nearest of kin, and when the question involved is one of voluntary settlement on those standing in close relationship, the same formality and strict compliance with the rule as to delivery is not required. The law has a regard for the relationship of the parties and the motives that are presumed to dictate such conveyances, and the degree of confidence which the parties, standing in such relation, as donors and donees of valuable property, are presumed to have, and in such case the presumption of law is that there was a delivery, and when brought in question the burden is upon the grantor, or those claiming adversely to the donee or beneficiary, to show clearly that there was no delivery. (Bryan v. Wash, 2 Gilm. 557.) When Isaac Berry delivered these deeds to appellant, Maud Chapin, the first taker in the deed made to her, was an infant of thirteen years, and resided with her mother, appellant. There is not the slightest evidence even tending to show that at the time the deed was placed of record and delivered to appellant it was with any understanding that the delivery was temporary or for any other purpose than to vest title in the donee therein named, or that there was any reservation on the part of the grantor of the right to re-possess it or in any manner to have any further or future control over it, and in view of the infancy of Maud Chapin, and the further fact that the terms of the deed were beneficial to her, conferring a benefit without imposing any burden, the law would presume that she assented to such conveyance and accepted, the terms thereof, and such presumption would prevail until the contrary was proven. (Robbins v. Roscoe, 120 N. C. 79; 38 L. R. A. 238. f In the case last cited it is said: “The principle is, that when the maker of a deed delivers it to some third party for the grantee, parting with the possession of it, without any condition or direction to hold it for him and without in some way reserving the right to re-possess it, the delivery is complete and the title passes at once, although the grantee may be ignorant of the facts, and no subsequent acts of the grantor or any one else can defeat the effect of such delivery. * * * When the maker of a deed parts from the possession of it to anybody there is a presumption that it was delivered as a deed for the benefit of the grantee, and it is for the maker to show that it was on condition, as an escrow. Such a delivery to a third person is good and the deed presently operates, and infants may assent to such a deed to themselves, and their assent is presumed until the contrary appears. * * * A delivery of a deed is, in fact, its tradition from the maker to the person to whom it is made, or to some person for his use, * * * for his acceptance is presumed until the contrary is shown. It being for his interest, the presumption is, not that he will accept, but that he does.”

It is next urged that if the delivery to appellant can be held good so far as the deed purported to convey an interest in the land to Maud Chapin, still, as to the remainder-men, to whom the title now passes by virtue of the deed, it was not a delivery, as, it is said, they had no knowledge of it and had no opportunity to accept or reject. This latter insistence is more especially applied to appellees Charles Nott and Mary Fluke, who take in right of their mother, Elizabeth Nott. It is the. assertion of a new and strange doctrine that a deed properly delivered to the first taker would not be a sufficient delivery for the benefit of all remainder-men. It seems hardly possible that appellant can be in earnest in the insistence that if a conveyance is made to A for life with remainder to twenty or thirty other persons named in the deed, before a sufficient delivery is made each remainder-man must be sought and his assent thereto obtained. Upon this question the text books are agreed, and Mr. Wash-burn, in his work on Real Property, (5th ed. vol. 3, p. 316,) says: “Where the deed conveys an estate to one which is defeasible upon contingency, and the same is thereupon to go over to another as a contingent limitation, or there is a contingent remainder limited after the expiration of a particular estate, a delivery of the deed to the first taker is a delivery as to all who may be to take under it, and a remainder-man may take under a deed poll delivered to the tenant of the particular estate though a stranger to the deed.”

The next contention is, that the court erred in construing the deed in question and finding that the complainants in the bill, the appellees Fluke and Nott, had each a one-sixth interest in the land, or had any interest therein. The language of the deed is: “In the event that the said Maud Chapin dies without issue, then the lands herein described are to revert to Jasper Berry, of, etc., Mrs. Sadie Miller, of, etc., and Mrs. Elizabeth V. Nott, etc., to be divided in three equal shares between the above mentioned Jasper Berry, Mrs. Sadie Miller and Mrs. Elizabeth V. Nott.” Appellant says there are no words indicating the intention of the grantor to pass a present interest in the land to Elizabeth V. Nott or that her heirs could represent her. It is true that the deed does not contain the statement that the interest of Elizabeth V. Nott was or should be a vested interest, and if she did take any interest in the land at the delivery of the deed that interest must be found as a matter of construction of the deed. In construing deeds or conveyances the intention of a grantor is to be looked to, and it must be found in the deed, and in doing so well known rules of interpretation are applied. Elizabeth V. Nott died before the grantor but after the delivery of the deed, and if she was vested with an interest in the land that interest passed to appellees Nott and Fluke as her heirs-at-law, as they were her only children and only heirs. The question then presented is, what was the effeet of the deed as to conveying any present interest in the land to Elizabeth V. Nott,v1 or was her interest merely a contingent interest? Appellant says that she was to have an interest only in the event that Maud Chapin died without issue.'

The rule as established in this State is: “A vested remainder is ah estate to take effect after another estate for years, life or in tail, which is so limited that if that particular estate were to expire or end in any way at the present time, some certain person who was in esse and answered the description of the remainder-man during the continuance of the particular estate would thereupon become entitled to the immediate possession, irrespective of the concurrence of any collateral contingency. * * * A remainder limited upon an estate tail is held to be vested, though it must be uncertain whether it will ever take place.” (Boatman v. Boatman, 198 Ill. 414.) By the deed under consideration a life estate was given to Maud Chapin with a remainder to her bodily heirs, if any, and in default thereof to the three persons named in the deed as remainder-men. At the making and delivery of the deed these three persons were in esse, were specifically named and were entitled to the immediate possession of the estate upon the termination of the life estate, irrespective of the concurrence of any collateral contingency. In the case of Boatman v. Boatman, supra, the residuary clause of the will provided that Emery Boatman, a son of the donor, should have certain lands for his life, and if he died leaving any child or children surviving him, then said land should go to such child or children, and if he should die leaving no child or children surviving him, then said lands should go to his brothers and sisters. Emery Boatman died without issue him surviving. Clarence Boatman, another son, died before Emery and after the death of the testator. He left no will an<| left no children, but left a widow him surviving. The question was whether the widow, as heir under our statute, took an undivided half of the share of land that would go to Clarence under the will. We there held that the interest of Clarence in the land was a vested interest, and that by his death his widow inherited one-half of that interest. If the grantor in the deed in question had not disposed of the remainder beyond the children that should be born of the body of Maud Chapin, the fee would have remained in the grantor until his death and then would have descended to his heirs, subject to the possibility of being divested by the birth of issue to Maud; (Harrison v. Weatherby, 180 Ill. 418; Peterson v. Jackson, 196 id. 40;) but as the grantor designated certain persons to take the estate that would have reverted to him or his heirs-at-law in the event of the failure of issue of the body of Maud Chapin, and those so designated being in esse, the fee in the land vested in the remainder-men in esse and named, subject to defeasance by the birth of such issue, (Harrison v. Weatherby, supra,) and while so vested, Elizabeth Nott, one of the remainder-men, having died, her interest passed to her children, appellees Fluke and Nott.

Appellant further says that if the deed in question shall be held to pass a present interest in the land to Elizabeth Nott, then it contravenes the rule that a fee cannot be limited upon a fee by deed. We think it clear that this deed does not attempt to limit a fee upon a fee, but that it contains an alternative limitation of two fees upon the life estate. There is no fee to be determined before the other fee shall take effect. The fees are concurrent, and the determination of which shall take effect is dependent upon a single event, namely, the death of the life tenant, Maud Chapin. Of such conveyances Mr. Washburn, in his treatise on Real Property, (5th ed. vol. 2, p. 625,) says: “Notwithstanding" a remainder lim- . ited after a remainder in fee would be void, as has been often repeated, yet two remainders may be so limited, though each a fee, as to be good, provided this is so doue that only one is to take effect, the one being a substitute for and not subsequent to the other. The consequence is, that if the first takes effect and becomes vested, the other at once becomes void. Such limitation is said to be of a fee with a double aspect. A case illustrative of this proposition is that of Luddington v. Kime, 5 Ld. Raym. 203, where the devise.was to A for life, and if he had male issue, then to such issue and his heirs, but if A died without issue male, then to T. B. in fee. Here are two remainders contingent in their character and both in fee, dependent upon the same particular estate, and to take effect, if at all, upon the determination of that estate, and only one of these can take effect.”

Appellant, doubtless relying upon the above expression, “here are two remainders contingent in their character,” appearing in the above illustration, insists that if it be held that the provision of the deed in question comes within the rule authorizing a fee with a double aspect to be conveyed by deed, then it must necessarily follow that both the remainders in the deed in question were contingent, and cites in support thereof City of Peoria v. Darst, 101 Ill. 609. We do not think that case decisive of the question here presented. In that case there was a grant to Mary Clark for -life, with remainder* to Helen and George Morton in fee simple. The deed contained the further provision that if both George and Mary Morton should die before the life tenant and leave no child or children, then at the death of the life tenant the title should vest in the city of Peoria, or if George and Mary Morton, or either of them, should survive the life tenant without making any disposition of the property, by will or otherwise, the property should go to the city of Peoria. The contention there was that the grant, by its terms, to George and Mary Morton was in fee absolute and that the other provision of the deed could have. no effect. That was the question then before the court but whatever was said in that case, this court is now committed to the doctrine that when there is a person in being, specifically designated, who would have a right to the possession of the lands upon the ceasing of the intermediate or precedent estate, in such case the re-

mainder is a vested one. Smith v. West, 103 Ill. 332; Cheney v. Teese, 108 id. 473; Scofield v. Olcott, 120 id. 362; Lehndorf v. Cope, 122 id. 317; Haward v. Peavey, 128 id. 430; Siddons v. Cockrell, 131 id. 653; Boatman v. Boatman, supra.

The circuit court of Pulton county properly.construed the deed and determined the rights of the parties, and its decree is affirmed. 5ecree affirmed.