Barnes v. Banks

79 N.E. 117, 223 Ill. 352

• Court: Illinois Supreme Court
• Decided: October 23, 1906
• Status: Published

Opinion

Mr. Justice Farmer

delivered the opinion of the court:

We are unable to agree with the construction sought to be placed upon the writing of A. G. Barnes of date June 4, 1902, by counsel for appellee. It does not by any of its language or terms purport to give appellee an interest in the forty-acre tract, except certain designated portions. As we read and understand it, instead of purporting to be a gift of the whole forty acres, it was of the “house and premises now occupied by you, which includes the garden and orchard back of the house and the pasture north of the house.” At the time this paper was written and delivered, appellee, with her husband, was living in the house, but the evidence shows her father was in possession and control of almost the entire forty, and always had been. He was a breeder of fine horses on another farm, called Oak Lawn farm, and the forty in controversy was equipped with barns and track for training them, and was used and known as the “training farm.” The appellee’s husband had some interest, with her father, in some horses and assisted in their training and care. His interest appears from the evidence to have been in the profits, if any were made. Mr. Barnes did not deliver to appellee the possession of the whole forty when he gave her the writing, for the proof shows he had possession and control of the track, meadow land and barns where the horses were kept, which included all the property, except the grounds occupied by the residence and out-buildings, where appellee resided, and the orchard and garden, and the pasture north of the house. The orchard and garden were west of the house. A sister of appellee testified the pasture was separated from the other part of the tract by fences. The evidence shows that after the date of the instrument Mr. Barnes controlled the use of all the tract except the premises mentioned in the writing, directed what crops should be planted, and disposed of them after they were harvested. Even after his death appellee bought from and paid the executors of her father’s will for hay and straw raised on the land the season before he died. These things tend to show how the parties themselves understood and construed the instrument. If appellee’s father had intended to give her the whole forty acres, why did he limit the gift to “the house and premises now occupied by you, which includes the garden and orchard back of the house and the pasture north of the house ?” • According to the evidence these portions of the tract, from the manner in which they were fenced and the uses to which they were put, could easily be located from the description given of them. Barnes was the owner of a large amount of real estate and appears to have been a man of fair intelligence. He must have known, if he desired to give his daughter the whole forty, that in doing so it would not be necessary to designate particular portions of it. It seems clear to us that, whatever of estate he intended to give appellee by the instrument, he intended to limit it to particular portions of the forty mentioned. After saying he presented her the house and premises occupied by her, to make it plain that he did not mean the buildings only, he was particular to say what he meant by that and what he intended it to embrace. The clause, “more fully described in my last will, in the forty-acre tract with other lands,” does not enlarge the description preceding it. He had nowhere in the instrument described the forty by giving its subdivision of the section, and evidently the reference to the will was for a better description of the forty-acre tract, part of which, the instrument recited, the maker presented to appellee.

Having determined the instrument must be confined to the particular portions of the tract mentioned therein, it now remains to be determined what, if any, estate or title in these portions it conveyed to appellee.

The will, to- which reference is made in the instrument, 1 was executed November 16, 1900. The paragraph in which appellee is provided for, gives to the executors, as trustees, “for the purposes hereinafter named, the following described stocks, moneys and real estate.” Then follows the description of several tracts of land, including the forty in controversy, and certain money, and it then proceeds to give appellee the annual income from the land during her life, to be paid to her by the trustees named in the will. Said trustees were given the possession, management and control of it, with the discretion of allowing her to live on and farm it and receive the rents and profits therefrom, if she would • in proper time pay all taxes, charges and encumbrances against the land, keep up repairs thereon and not commit or suffer any waste. At the time the will was made and at the time the written instrument of June 4, 1902, was delivered to appellee, she was in possession of the premises therein described and had been for several years, receiving the proceeds therefrom and paying no rent. It cannot be presumed that her father meant the writing to be a meaningless and useless paper. He must have intended to give his daughter some right and interest in the land she had not possessed and enjoyed before, and it must have been an interest or estate different from that given her by the will. Thqre can, we think, be no doubt he intended the interest and estate given her 'by the writing to take effect upon the delivery of the paper to her. The language used would not justify the conclusion that he intended merely to inform appellee he had made provision for her in his will with reference to this land. The writing says: “I present you on this your 33d birthday with the house and premises,” etc. This is equivalent to saying, “I now give you the house and premises.” It was not a promise that he would give her the land nor information that he had given her some rights in it by the will. The interest devised by the will included the whole forty, while the writing of June 4, 1902, only embraced certain designated portions of it.

A conveyance of land, to be good at law, must be by deed under seal, but in equity a good title may be conveyed by a writing not under seal, or without any writing whatever. (Ashelford v. Willis, 194 Ill. 492.) This case does not fall within that line of verbal gifts or conveyances from parent to child which have been sustained because, upon the faith of the verbal conveyance or gift, the donee entered into possession and made lasting and valuable improvements. It does not appear from the • evidence that appellee has done more than paper three rooms in the house. The validity of this instrument and the nature and extent of the estate conveyed by it depend upon whether the father of appellee intended it was a”- gift to her. A parent has the right to make a. gift to his child, and when fully executed it is irrevocable. (Eckert v. Gridley, 104 Ill. 306; Finucan v. Kendig, 109 id. 198; Dugan v. Gittings, 43 Am. Dec. 306; 14 Am. & Eng. Ency. of Law,—2d ed.—1034.) “A gift of property, real or personal, made by a parent to a child, is a valid gift, where no creditors intervene, and who, by the gift, are subjected to no loss.” (Bay v. Cook, 31 Ill. 336; Patterson v. McKinney, 97 id. 41.) By the language of the writing the gift took effect and was complete immediately upon the delivery of the paper. The fact that appellee was in possession at the time the gift was made does not make the case different from what it would have been if she had not been in possession at that time but had been given the possession in pursuance of the gift. (14 Am. & Eng. Ency. of Law,—2d ed.—1019.) There was proof that appellee’s father had said to certain parties he had given her “the place where she livedthat he had given “the place to Hallie,” or that he was going to “deed it to Hallie.” Some pf these-statements were made before the delivery of the writing of June 4, 1902, and as to others the time when they were made was not shown by the evidence and is uncertain. Nor could the witnesses say whether he meant the whole forty or the premises where the house was. The more reasonable conclusion to be drawn from these statements is, that Mr. Barnes had reference to his will when he spoke of having given or intending to give the land to appellee. His acts of dominion and control over all the tract after the making and delivery of the written instrument, except thbse portions designated therein, are inconsistent with the theory that he referred to it as a conveyance by which he had given appellee the land. There is evidence tending to show that prior to June 4, 1902, Barnes had paid for repairs made on the premises occupied by appellee and after that date appellee paid for such repairs as were made. We think it apparent from the evidence that the relations of Barnes toward the premises mentioned in the written" instrument ended with the delivery of that paper. As to the residue of the forty-acre tract, he continued to possess and control it until his death. We conclude, therefore, that the premises described in the written instrument were a gift to appellee from her father; that the gift was absolute and irrevocable, and passed to her the title in fee simple to the premises designated in the instrument dated June 4, 1902.

It is also to be observed that appellee’s father never attempted to revoke the gift. After making his will one of the beneficiaries died, and he also sold some of the property disposed of by the will. He made three codicils to his will after June 4, 1902, but in none of them does he make any change in the provision originally made for appellee.

The exact boundaries of the premises should be measured and determined from the fences and other boundaries separating them from the rest of the forty-acre tract as they existed June 4, 1902, and to those premises the fee be decreed to be in appellee, with the right to control and manage it without interference from the trustees. The remainder of the forty acres passes by the will of appellee’s father, and is thérefore under the control and management of the trustees named in the will.

The decree of the circuit court is reversed and the cause remanded, with directions to further proceed in accordance with the views herein expressed.

Reversed and remanded..