Miller v. Talbott

I dissent. I think the majority has reached an erroneous conclusion when it reverses the finding of the district court in these cases. In holding as it has, the majority has completely overlooked the requirement of the rule so well established in Montana that it needs no citation that this court will presume that the judgment of the district court is correct and will not reverse such judgment if there is any substantial testimony in support of it. Further, the majority, in reaching the conclusion it has, has seized upon certain small portions of the testimony of the principal witness, deceased's attorney, and has ignored completely the major part of his testimony and all of the other evidence in the case.

Orpha Talbott, in her lifetime, owned the property we are here dealing with. She had a right to dispose of this property as she chose. She attempted to make disposition of it while she was still able to and while she was on her death bed, by word, act and deed. She made this disposition with the aid and advice of an able, experienced member of the bar of the State of Montana. Orpha Talbott is now dead. The decision of the majority completely defeats her will. Her property is now disposed of in a way that she did not intend, and Orpha Talbott is no longer able to undo what has been done by this court and give this property as she wished, either by deed or will.

While it is true as we said in Carnahan v. Gupton,109 Mont. 244, 96 P.2d 513, that certain things must be done before any intention to convey, no matter how clearly expressed, may become effective, this court, in considering this case, should and as we did in Plymale v. Keene, 76 Mont. 403,247 P. 554, 556, examine the facts and apply the law so as to give effect to Orpha Talbott's intention and not to defeat it if at all possible. It is not the province of this court to determine to whom Orpha Talbott owed her largess and substitute our views as to what should be done with this property. The testimony shows that her mind was keen, that she had given a great deal of thought to this matter and that she had consulted those interested, and that these instruments were executed only after very careful thought and consideration on her part.

The majority opinion in general states the rule correctly to be applied in determining the intention on the part of the grantor to deliver the deed to a third person for the benefit of the grantee, but it has expressly overruled the settled law in the State of Montana as announced by Mr. Chief Justice Callaway in 1926 in the case of Plymale v. Keene, supra, and in applying the general rule I feel that it has completely disregarded the policy of this court and has gone contrary to all the authorities dealing with fact situations similar to the one obtaining in this case.

It may be well to state again and in a little more detail the rule obtaining in a situation like the one now before us. "Delivery to a third person is sufficient if made for, and on behalf of, the grantee, to one acting solely as the grantor's agent, with express or implied instructions to the depositary to deliver the deed to the grantee." (26 C.J.S., Deeds, sec. 43, p. 242.) And as is said in Plymale v. Keene, supra, "if a deed, fully executed and so drawn as to convey a present title, is deposited by the grantor with a third person with directions to deliver it to the grantee after the death of the grantor, and the grantor in making such deposit reserves no power to recall or modify the same, or thereafter to control in any manner the disposition of the deed, the delivery will be deemed complete as of the date when the deed is deposited."

The only question in this case is whether or not the grantor intended the physical delivery to her attorney to be an irrevocable delivery for the purpose of divesting herself of title, and with directions, express or implied, that her attorney as depositary of the deed and assignment deliver them upon her death to the grantees named. The majority seem to take the view that such intention to make the irrevocable delivery must be expressed in so many words and it overruled what we said inPlymale v. Keene, supra, to the effect that unless the grantor expressly reserved the right to the control of the instrument the court must deem the delivery irrevocable. It seems to me that as to the latter point, the rule in the Plymale case is sound and supported unanimously by the authorities.

As to how the grantor's intention as to the delivery is to be determined, the rule is settled that "The grantor's intent may lawfully be expressed to the custodian of the deed either orally or in writing or by recitals in the deed or by his acts and conduct at the time of or subsequent to delivery." (16 Am. Jur. 519.) And it is said in the same work on page 521, "* * * No * * * particular act or form of words is necessary to establish the delivery of a deed. The controlling factor is the intention to make delivery and this intention may be inferred from the grantor's words and acts and from the circumstances preceding, attending and subsequent to the execution of the instrument." (See, also, Murrer v. Murrer, 106 Ind. App. 304,19 N.E.2d 494; Anderson v. Mauk, 179 Okla. 640, 67 P.2d 429;Saltzsieder v. Saltzsieder, 219 N.Y. 523, 144 N.E. 856;Hinshaw v. Hopkins, 37 Cal.App.2d 230, 99 P.2d 283.)

Now let us look at the testimony that the majority has ignored and which clearly supports the judgment of the district court. On cross-examination, deceased's attorney, who is the scrivener of the instruments and their depositary, stated that he could not recall the exact "words, directions, or instructions" on the part of the grantor Orpha M. Talbott that she intended delivery of these instruments within the rule to him as depositary with instruction to deliver to the grantee upon her death, and this testimony is relied upon by the majority in reaching the conclusion it has. But this overlooks the balance of his testimony. He testified that he was called to the house of the deceased while she was lying on her death bed with full knowledge on her part that she had but a short time to live, that they discussed at some length the disposition of her property, that she explained to him "that she wished to dispose of" her property and told him that she wished to give it to the parties afterwards named grantees in the deed and assignment. She vetoed the suggestion on his part of a will. He stated that her instructions to him on the day of this first visit were that he "prepare the necessary instruments so that upon her death the property would go to her husband and her nephew, the real estate, and the assignment of the contract should go to her sister and to this board of Foreign Missions of the Nazarene Church." He prepared the instruments according to these instructions and awaited a call from her to return with them so that she might execute them. He stated that at the time of the execution of the instruments she said nothing indicating any desire on her part to retain and exercise any control or authority over the instruments while in his possession. He was then asked, "Q. Will you tell us whether the substance of her instructions to you were to effectuate and complete the transfer of the property referred to in Exhibits 1 and 2, or to make simply a provisional one which was subject to her control and reservation at any time. A. I will answer your question in this way: that there were no definite instructions with regard to these instruments from Mrs. Talbott. If I may be permitted to digress, Mrs. Talbott was very sick when I saw her. They had arrangements there for eating, sleeping and living completely in that room. I was a little reluctant about speaking to her of the matter of death. I think I felt, from observation of her, that it couldn't have been very far away. Consequently, I didn't say, ``Shall I hold these until you die?', but the impression was that I should keep these instruments, and upon her death deliver them to the grantees. That's about the sum and substance of the whole transaction. * * * The entire purpose ofthis business was to fix up this property. That's what I wentthere for. That's what I attempted to do." Later, on cross-examination, the witness stated, "The impression was gained very largely from the fact that I was called there to prepare the necessary instruments for disposal of her property; that we discussed the making of a will to dispose of it; and her statement that she wanted it divided in certain ways; and in theassignment itself, it providing for the disposal of the balanceafter her death. To repeat the conversation in detail would be impossible for me to do at this time, because I don't remember. That's the general nature of the whole transaction. It was such that that was the only conclusion I could come to." He was asked, "The impression which you gained as to your duties with respect to Exhibits 1 and 2, I take it, was gained from the general tenor of the discussions, her physical condition, and your understanding of each other's impression of the matter that you had during the conversation? A. That's correct, yes." He was further asked, "Will you tell us whether the discussion centered around some means of making an effective disposal of her property? A. Yes, it did, of this particular property. Q. You were instructed by her to do that for her? A. That's right."

When all of the testimony of deceased's attorney is considered it is very clear that from his testimony alone the district court was warranted in finding that there had been a compliance with the rule as to delivery. He did not testify, when all of that he said is considered, that she expressly directed him to take and keep the deed for her for safekeeping as the majority assumes. The transaction was a great deal more than that as the quoted testimony shows. The grantor's attorney could properly testify as to what he understood Mrs. Talbott's intentions were when she had the instruments executed and turned them over to him. His testimony shows that he understood that it was Mrs. Talbott's intention to make an effective delivery of the instruments and his conduct both at that time and subsequent to her death shows that he clearly understood that she intended a complete delivery without reserving in herself any power to revoke that delivery. His understanding of what his instructions were and his conduct, in view of his standing before the bar of the state of Montana, is entitled to great weight in this court.

Aside from the testimony of the principal witness there is abundant other testimony showing delivery under the rule stated above. Here we have a case where the grantor knew that she had but a few weeks at the most to live and she could have little purpose in wanting to maintain control over the deeds as is the case where death is not imminent. On many occasions prior to the time of the execution of these instruments, she communicated to those around her her desire to dispose of her property during her lifetime. Under the rule stated in 26 C.J.S., Deeds, section 42, supra, the acts and words of the grantor up to the time of the execution of the instrument, her subsequent conduct, and the circumstances surrounding the transactions may properly be considered by the court. After the delivery of the instruments to her attorney, Mrs. Talbott spoke of the matter to a number of the witnesses who testified that she spoke of the disposition of her property in the past tense as having been completed. For example, one witness testified, "She told me that she had it all fixed up as to disposition of her property," and "That she had gotten Mr. Worden [her attorney] to fix up the papers and she had disposed of her property according to her wishes. That was the substance of it." To still another witness she said, "The papers are made out and it is all settled. I am glad it is over with." And she told another witness, "I am so relieved and so happy that I have been given strength enough to go through this business today and it is settled." And, "I have made deeds because if I had made a will it will be probated and that will be a lot of expense and the deeds will be safer and I have made deeds." She lived some six weeks after the execution of the instruments and their delivery to her attorney. He did not again communicate with her nor did she make any attempt in any way to regain possession of the instruments. The testimony as to her statements made subsequent to the delivery and her conduct after that time until her death showed very strongly that Mrs. Talbott took the view that the instruments were final disposition of her property and that she no longer had control over them or any right to revoke what she had done. In the case of the assignment she reserved in herself a right to the income during her lifetime. If the delivery was not intended as final there would be no purpose in making this reservation.

It seems to me clear that the evidence is ample to support the judgment of the district court, and that it shows an intention on the part of the grantor to make an effective delivery to the depositary with the directions to deliver to the grantee on the death of the grantor and that the grantor retained no power of revocation. If I had any doubt on the latter score, I think this court should adhere to the rule announced in Plymale v.Keene, supra: "When one has the mental capacity to alter his intention with respect to a deed thus deposited, but dies without doing so, there is ``but little reason for saying that his deed shall be in-operative, simply because, during life, he might have done that which he did not do. It is much more consonant with reason to determine the effect of the deed by the intention existing up to the time of death than to refuse to give it that effect because the intention might have been changed.'" (Citing from Newton v. Bealer, 41 Iowa 334, and Martin v.Flaharty, supra.)

The following cases are comparable on the facts to this one. They show the general attitude of the courts throughout the land to make conveyances like these effective through express words of direction showing an intention to deliver without a reservation of the power to revoke is lacking.

In McNichols v. McNichols, 299 Ill. 362, 132 N.E. 448,450, after setting up the purpose for which the deed in question was executed and saying that the grantor knew the purpose, the court said: "With that understanding she simply signed the deed and acknowledged it, as already stated, and left it with Walker [the third party] without any directions whatever by words, but with the intent, as the evidence shows, of carrying out her part of the transaction. There was sufficient delivery of both deeds to pass title both upon the part of the widow and of Miss Johnson. No particular form is necessary to constitute a valid delivery of a deed. It may be by acts without words or by words without acts, or by both. Anything which clearly manifests an intention of the grantor and the person to whom it is delivered that the deed shall presently become operative and effectual constitutes a sufficient delivery."

In the case of White v. Chellew, 108 Wn. 628,185 P. 621, 622, the facts were that, at the time the deed and will were executed, Samuel Chellew had been informed that he was in extremis and could live but a short time. Mr. White, the executor, testified in substance that no directions whatever were given with reference to the delivery of the deed; that Samuel Chellew during the afternoon when the deed and will were made looked them over while they were lying on the table, and stated that they were all right. Upon the next day Samuel Chellew died. After stating the general rule that whether or not there was effective delivery depended upon the intent of the grantor, the court held that the circumstances showed the requisite intent and then said: "There is nothing in the record before us to show that Samuel Chellew, at the time he executed this deed, intended to reserve any interest in the property. According to Mr. White, who drew the deed and the will, the grantor made no reservation. This deed and will were made on the 8th day of December, 1916. * * * Upon the day following, or shortly thereafter, Mr. White, who drew the deed and the will and having the same in his possession, delivered the deed to [grantee] and stated to him that the property was his, and that he should look after it, or words to that effect, thus indicating that Mr. White understood, at least from the conduct of the grantor, that the grantor intended an immediate delivery of the deed. We think there can be no escape from the conclusion under the authorities above cited that the deed became immediately effective and conveyed the present title to Vivian Chellew."

In Watson v. Cox, 117 S.C. 24, 108 S.E. 168, 169, the scrivener could not remember whether the grantor had said to keep the deeds in question and then deliver them upon his death to his children or "keep them for me and give them to my children." The court, in holding that there was an effective delivery, had this to say:

"When Sam Cox [the grantor] had this land survey, divided, and platted, and procured the various deeds to be drawn up, and signed in the presence of witnesses, and then turned them over to [the third party] he surely intended to do something effective. He either intended to fully execute deeds, or his conduct was idle. It makes but little difference whether he directed Childress to keep the deeds and deliver them after his death, or to keep them for him and deliver them to his children, he must have intended that through this medium they should be transmitted to the various grantees.

"We prefer and do conclude that he intended to do something effective rather than that his conduct was idle and amounted to nothing."

In Brown v. Westerfield, 47 Neb. 399, 66 N.W. 439, 53 Am. St. Rep. 532, the facts were that the scrivener was informed by the grantor that she wished to divide her property in a certain manner and that in pursuance of this request the two deeds were prepared by the witness and then signed and acknowledged. He was requested to keep them and place them upon record after her death. Two or three days later he took the instruments to the grantor's house and put them into a certain box which she kept for the purpose of preserving documents. Subsequently she said on a number of occasions that she was pleased with what she had done in speaking of the deeds and of "the disposition she had made of the property." The court held the delivery sufficient.

In Hall v. Dollarhide, 116 Okla. 180, 244 P. 813, 814, the grantor executed a deed which he delivered to the scrivener with directions to file it for record when the grantor died and then grantor, although seeing the custodian on two occasions after the deed was made, said nothing about the deed. The court said:

"The intent of the grantor should control, if his intent can be determined. There is no doubt from the evidence submitted by the plaintiffs, that the grantor * * * intended that [the grantee] should have the 54 acres of land described in the deed. The plaintiffs insist that their proof tends to show that the grantor kept, or intended to keep, the deed in his control, since he left it in the hands of Prather, and, if it was so kept in his control, the grantor might have changed it or revoked it, and therefore the deed was evidence of intention to make testamentary disposition of the land, and was not operative as a deed passing title in praesenti, and could not be operative as a will, since not executed as a will is required to be executed. It seems that a similar contention was made in Newton v. Bealer, 41 Iowa 334. The contention was disposed of in this language:

"``Where one who has the mental power to alter his intention, and the physical power to destroy a deed in his possession, dies without doing either, there is, it seems to us, but little reason for saying that his deed shall be inoperative, simply because during life he might have done that which he did not do.'

"There seems to be no doubt that the grantor had the mental power to alter his intention. Whether he could have recalled and destroyed or changed the deed, or whether he intended to keep the deed within his power and control, is speculative, but the fact remains that, after giving direction to record the deed at his death, he never again spoke of the deed to Prather, the custodian in whose hands he left the deed.

"There being nothing to indicate the contrary, we must assume that both Charles R. Hall and W.M. Prather, at the time the matter of disposition of the 54 acres of land was under consideration, knew the legal effect of disposition by will or by deed. The grantor was looking for effective means of passing title to Russell A. Dollarhide. To make testamentary disposition of the 54 acres of land was thought of and talked about. It must be assumed that they knew that a will could not take effect until the testator's death; also it must be assumed that they knew that the legal and effective means of passing the title in praesenti was by a deed. They are also presumed to have known that an instrument, in form a deed, could not be treated as a testamentary disposition of the land, unless the statutory formalities for testamentary disposition were complied with. Knowing these things as they must be held to have known, there being nothing to show that they did not know, why should Hall have Prather prepare a deed and him execute it, instead of making a will? The reasonable, legitimate, and logical inference to be drawn from Hall's having made a deed instead of making a will is that he intended to pass the title to Russell A. Dollarhide inpraesenti. By a deed was all the means by which this could be done; and under the proof offered by the plaintiffs it must be presumed and inferred that such was the intention of Hall when he made a deed instead of a will. No reasonable inferences are to be drawn to the contrary from the plaintiffs' evidence. Whether the grantor intended to retain possession of the land until his death, there seems to be nothing in the evidence to advise the court. It seems that whether or not such was his intention is a matter of no consequence. The deed was executed on the 13th of December, 1921, and the grantor died in March, 1922, without indicating his intention as to the matter of possession."

In Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, 535, the directions to the cashier of the bank were: "Here is a deed [to the grantees named] that I want to lay away in the vault for safe-keeping, and the deed to be delivered after my death to them." The cashier testified: "I do not remember that he said anything about reserving any right to recall the deed." In discussing the case the court said:

"Stress seems to be laid upon the idea that [grantor] did not by any act or declaration of his lose control of the deed after he had duly executed it and placed it in the bank for safe-keeping and delivery to the grantees after his death. We do not think from the findings of fact that there is any evidence, or any circumstance proven by any competent testimony in the findings of the appellate court, or in the record, that proves, or tends to prove, that [grantor] did not part with all control over the deed when he handed it to the cashier of the bank with the declaration that he desired the deed, which he said conveyed some land to the grantees, deposited in the vault of the bank for safekeeping and delivery to them after his death. But why cavil over the issue whether the grantor did or not deposit the deed with the bank for safe-keeping and subject to his control, if he executed the deed conveying the land therein described to the grantees named, and declared his desire that it should be delivered to them after his death? His act in executing the deed accompanied with his positive declaration of his purpose in so executing it and his desire that it should be delivered to the grantees after his death had the effect in law to convey the title in the land to the grantees in the deed with possession and the usufruct in the grantor. It had precisely the same effect as if he had made and delivered the deed to the grantees, conveying them the fee, reserving to himself in the deed the use and enjoyment of the land for and during his natural life.

"The question of delivery of a deed is one of intention on the part of the grantor, and an actual or manual delivery by the grantor in person to the grantees is not essential to pass the title. (Brown v. Brown, 61 Tex. [56], 60; Devlin on Deeds, sec. 275.) If it be shown that the deed was duly executed by the grantor and that it was his purpose and intention to deliver, or have delivered such deed to the grantees, the law will aid such intention and give it like effect as if the deed had been actually delivered. * * *

"We have his positive declaration that the deed was for land granted by him to the grantees named in the instrument, and that he desired and intended that the deed should be delivered to them after his death. This declaration evidenced his purpose and intent in executing the deed to convey the land to the grantees, and to have the deed delivered to them after his death. Or what was in legal effect the same, he had conveyed to the grantees the property, but desired to retain possession and enjoy the fruits of the land while he lived, knowing that a deed takes effect only from the date of its delivery. (Tuttle v. Turner [Wilson Co.], 28 Tex. [759], 773; Devlin on Deeds (2d Ed.) sec. 264.) * * *

"Whatever view might be taken of the grantor's right to control the deed, we have the declaration of his purpose, and the fact that the grantor lived for many months within a short distance of the bank and never called for the deed, or disposed of the land. What more may it be thought was necessary to be shown to establish grantees' title?"

In the case of Hinshaw v. Hopkins, 37 Cal.App.2d 230,99 P.2d 283, 285, the grantor was suffering from a malignant cancer. The grantee was her housekeeper who performed many services for her. She told several people prior to the time of the execution of the deed that she planned to give the property to Mrs. Hopkins. Grantor in making the deed stated to the scrivener that she wished him to keep the deed and put it on record after her death, saying: "I wish you would take this deed and put it in your safe deposit box or your safe, or some place where it will be in safe keeping. And under no circumstances would I want you to lose possession of this deed, because if I get well I want it returned to me in order that I may destroy the deed." Witnesses testified at some length that the grantor stated after the execution of the deed that she deeded the property to the grantee and that it would be the grantee's property upon the grantor's death. She subsequently made a will but the will contained no mention of the property described in the deed. The lower court found that it was not the intention of the grantor to reserve in herself any power to recall or modify the deed.

"Appellants contend that there was no evidence sufficient to overcome what appellants claim was the definite, unimpeached testimony of Floyd M. Hinshaw that the delivery was conditional.

"The question then presents itself as to how far the testimony of Floyd M. Hinshaw that the delivery of the deed was conditional was binding upon the trial court."

The court held that her failure to make a deed, her statement prior to the time of the execution of the deed that she intended to deed her property to the grantee, her unquestioned intention that the grantee was to have the property and "her declarations made after the signing of the deed were to the effect that she had made a deed and had given the property to respondent. Such declarations are admissible as bearing on the question of delivery and support the finding of the trial court that Mrs. Dornberger intended to and did deliver a deed of said real property to respondent, and that it was not her intention to reserve any power to recall or modify said deed."

In Williams v. Kidd, 170 Cal. 631, 151 P. 1, 7, Ann. Cas. 1916E, 703, it was held: "The conduct and declarations of Williams [the grantor] covered a period subsequent to the making of the deed and while Kidd held it as a depositary, and we are satisfied that such acts, conduct, and declarations of Williams with reference to the property during that period were properly admissible as bearing on the issue as to whether there had been a delivery of the deed." (See, also, Fisher v.Oliver, 174 Cal. 781, 164 P. 800.)

In Hinshaw v. Hopkins, supra, the court concludes that: "It is the exclusive function of the trial court to weigh the evidence and determine the credibility of the witnesses. An appellate court will not disturb the findings of the trial court when there is a substantial conflict in the evidence on material points, and when there is some evidence to support the findings. The record in this case shows a substantial conflict in the evidence, and there is ample evidence to sustain the judgment."

For the above reasons I think the judgment should be affirmed.