Butts v. Richards

140 N.W. 1, 152 Wis. 318, 1913 Wisc. LEXIS 73

• Court: Wisconsin Supreme Court
• Decided: February 18, 1913
• Status: Published

Opinions

BaeNes, J.

Henry Butts died intestate in August, 1908, leaving a widow, two children, and several grandchildren as his heirs at law. Prior to August 4, 1905, he owned a farm of seventy-four acres in Bichland county. On such date he executed a warranty deed of this farm to his wife, Elizabeth. It does not appear that such deed ever came into the possession of tbe wife until about ten days after Butts’s death. It was then found by bis son in a box in wbicb Mr. Butts kept bis money and valuable papers. Tbis box was kept locked and Butts carried tbe key on bis person. During bis last illness be gave tbe key occasionally to a grandchild who was living with him, for tbe purpose of getting money from tbe box for household expenses. It does not appear that be ever gave tbe key to bis wife for any purpose. After bis death tbe box was found locked and tbe key was found in-the clothing of tbe deceased. Gertrude Warren testified to a conversation with tbe widow of Henry Butts shortly after bis death, in wbicb Mrs. Butts stated that her husband bad made no will but bad made a deed to her; that tbe deed was not placed on record because tbe husband did not want to record it; that her husband never gave her tbe deed, but kept it locked up in a drawer, and that she was unable to find tbe key. Philip Warren gave substantially tbe same evidence. Tbe evidence further showed that tbe box in wbicb tbe deed was kept was customarily referred to as decedent’s box, both by himself and bis wife. Francis Stace, tbe attorney who drew Mrs. Butts’s will, testified that she told him she owned a farm in Wisconsin wbicb her husband bad given her a deed of and wbicb she wished to dispose of by will. He testified further: “I think she stated that she bad a deed some three years before her husband died.” A very general objection was made to tbe competency of tbis evidence. Lucy Bicharás, a daughter, testified that her father told her at one time that tbe property was in tbe name of himself and wife.

Elizabeth Butts disposed of tbe farm by will, and tbe contest arises between tbe heirs at law of Henry Butts and tbe devisees under tbe will of bis widow. Tbe circuit court found that there bad been no delivery of tbe deed and that tbe property should be distributed according to tbe laws relating to tbe estates of intestates. Tbe legatees under tbe will, or at least some of them, appeal.

Tbe only question in tbe case is whether tbe finding of tbe circuit judge that there was no delivery of the deed is against the clear preponderance of the testimony. If the inference of nondelivery may be fairly drawn from the evidence, the judgment must be affirmed.

Delivery is largely a question of intention. Curry v. Colburn, 99 Wis. 319, 320, 74 N. W. 778; Zoerb v. Paetz, 137 Wis. 59, 117 N. W. 793. It may be accomplished by words without acts. Bogie v. Bogie, 35 Wis. 659, 666. Conversely, it may also be accomplished by 'acts without words. Cerney v. Pawlot, 66 Wis. 262, 28 N. W. 183; Bates v. Winters, 138 Wis. 673, 120 N. W. 498. Rut the grantor must part with his dominion and control over the deed with intention to pass title. Curry v. Colburn, supra; Prutsman v. Baker, 30 Wis. 644. There are authorities which hold that when it is shown that a deed has been properly executed a presumption of delivery arises. Jones, Evidence (2d ed.) § 50 (44). Delivery may also be implied from circumstances. 21 Cyc. 1290, and cases cited. The presumption of intention to deliver that might arise from the execution of a deed is overcome by showing that the grantor had the deed in his possession and under his control at the time of his death. Shetler v. Stewart, 133 Iowa, 320, 107 N. W. 310; Fisher v. Hall, 41 N. Y. 416.

The inherent weakness in the case for the appellant is that there is nothing in the testimony tending to show that Butts ever uttered a word or performed an act which evinced an intention on his part to vest the title to his property in his wife prior to his death, except to make a deed which he carefully locked up in his strong box, the key of which he carried about his person. He guarded it as closely as he did his pocketbook. When any money was wanted from this he apparently did not permit his wife to get it, but had his grandchild bring it to him so that he could take out what money he saw fit. After his death his widow was unable to find the key. During her lifetime she apparently never told any one tbat tbe deed bad been delivered to ber or tbat ber bnsband bad said anything to ber evincing an intention to make a delivery during bis lifetime. Conceding tbat tbe testimony of tbe attorney should be considered, it proves very little. He thought Mrs. Butts told him tbat ber husband deeded tbe property to ber. She might well have made this statement^ because she knew tbat ber husband bad in fact executed a deed, 'although there bad been neither delivery nor intention to deliver. She was not learned in tbe law and might be wholly ignorant of tbe fact tbat delivery was necessary to convey title. In any event ber statement was correct, if by saying tbat ber husband deeded ber tbe property she meant tbat be bad executed a deed of it to ber. Tbe husband no doubt intended tbat bis wife should have tbe property after bis death and told ber tbat be bad made a deed, but it was an entirely reasonable inference for the trial court to draw tbat Butts meant to keep tbe deed and tbe property under bis control as long as be lived. Tbe deed was executed about three years before Butts died. It conveyed all bis real estate. A statement made by the wife, when told tbat tbe deed was no good unless given to ber, throws some light on tbe subject. She said: “You know bow it always was with Henry [meaning ber husband], big I, little you, be never wanted me 'to have nothing.” Tbe trial court on tbe whole evidence reached the conclusion tbat Butts supposed tbat a deed might be made to perform the functions of a will and that he wanted to bold onto tbe farm as long as be lived, thinking tbat after bis death tbe farm would go to tbe widow by virtue of tbe deed. Whether this be true or not, tbe inference is quite strong tbat Butts did not intend to place tbe title to his property in his wife during his lifetime. The case is quite similar in its facts to Reichert v. Wilhelm, 83 Iowa, 510, 50 N. W. 19, in wMch it was held that there was no delivery. Other analogous cases are Roup v. Roup, 136 Mich. 385, 99 N. W. 389; Bisard v. Sparks, 133 Mich. 587, 95 N. W. 728; Anderson v. Anderson, 126 Ind. 62, 24 N. E. 1036; Walls v. Ritter, 180 Ill. 616, 54 N. E. 565; Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041; Noble v. Fickes, 230 Ill. 594, 603, 82 N. E. 950; Oswald v. Caldwell, 225 Ill. 224, 231, 80 N. E. 131.

If it should be held that a lesser degree of proof of delivery is required between husband and wife than in other cases, we would still be unable to say that the findings of the circuit judge were against the clear preponderance of the evidence.

By the Court. — Judgment affirmed.