White v. Willard

83 N.E. 954, 232 Ill. 464

• Court: Illinois Supreme Court
• Decided: February 20, 1908
• Status: Published

Opinion

Mr. Justice Vickers

delivered the opinion of the court:

The first question to be determined is whether the two deeds in question were delivered in the lifetime of the grantor.

Charles H. Willard was a resident of Champaign county. He died on March 13, 1906, at the age of eighty-four. He had been married twice and had children by both marriages. He had accumulated a considerable estate, consisting of several hundred acres of land and about $30,000 of personal property. At the time of his death he left five children surviving him, namely, Lillie M. White, Franklin D., Samuel, Ora Arthur and Grover Cleveland Willard. He also left a number of grandchildren, descendants of two deceased children. Several years before his death he undertook the distribution of his property among his children. He gave each of them a deed to 40 acres, except Ora A. and Grover Cleveland Willard. Subsequently he gave to two of them, Franklin D. and Samuel Willard, a deed to 573 acres in Lawrence county. He owned 360 acres in Champaign county, which land was estimated to be worth $100 to $125 per acre. The Lawrence county land was worth from $50 to $60 per acre. Appellants, Ora A. and Grover Cleveland Willard, were young men still residing with their parents. They had not received any land from their father. There was a provision in the will by which these two sons were to receive 40 acres each, to equalize them with the other children. The evidence shows that Charles H. Willard determined to execute the deeds in question to the two younger sons for the purpose of making their distributive shares equal to those given to Franklin D. and Samuel Willard. With this object in view Charles H. Willard sent a request for Charles M. Webber to come to his house. Webber called at the Willard residence, and Charles H. Willard explained to him what he desired to do with reference to making a conveyance to his two sons. Webber testifies that Willard gave him directions about making the deeds, and told him that his object was to equalize the interests of the two younger boys with the two older ones, to whom he had conveyed the Lawrence county land. Willard explained to Webber that he considered one acre in Champaign county equal to two in Lawrence county, and that on this basis he figured that he could divide the land equitably among the four boys. From the evidence it appears that at this time it was Willard’s intention to divide his landed estate among his four sons and that his daughter was to be provided for out of the personal estate. After obtaining full directions concerning the execution of the deeds, Webber went to his office, prepared the deeds and returned with them to the Willard residence. The deeds were read over by Webber to Willard and his wife, and were then executed by them and duly acknowledged before Webber as notary public. The deeds were left in the possession of the grantors. Ruth A. Willard put the deeds in an envelope and placed them in a bureau drawer, where her husband kept other valuable papers. Neither of the boys was at home at that time. Mrs. Willard testifies that when Grover C. came home that evening she got the deeds from the bureau drawer and delivered them to him in the presence of her husband; that Grover took the deeds from the envelope and examined them, and handed them back to his mother with the request that she put them away for him; that she again took the deeds and returned them to the bureau drawer, where they had previously been. She testifies that when Ora A. came home on Saturday evening she again took the deeds from the bureau drawer and handed them to Ora A., who, after looking at the deeds, gave them back to his mother with the request that she keep them for him.

The two sons both testify that their mother delivered the deeds to them in the presence of their father and with his knowledge, and that the deeds were kept by their mother for them until their father’s death. But the evidence of the two sons is incompetent under the second section of chapter 51 of the Revised Statutes of 1905. The complainants, in this" suit are suing as devisees under the will of Charles H. Willard, and therefore the interest of these two grantees renders them incompetent. The deed to the 120-acre tract reserves a life estate in favor of the widow. Her interest under the deed to this tract is greater than it would be under the statute. She is also, therefore, incompetent to testify against the interests of the devisees so far as the deed to the 120 acres is concerned. But the case is different with respect to the deed to the 240 acres. There is no reservation of interest to her in that deed. If the deed is upheld she will be deprived of her dower. Her interest, therefore, in the suit, so far as the 240-acre tract is concerned, is with the complainants and against the sons. She was clearly competent to testify as to the delivery of the deed for the 240-acre tract. Her evidence clearly establishes a complete and valid delivery of both-deeds. The conveyances having been made at the same time and in the furtherance of the same object, and the deeds being kept together in the same envelope, competent evidence which proves the delivery of one of the deeds affords a strong inference that the other deed was also delivered.

The evidence on behalf of appellees which is relied upon to prove that the deeds were not delivered consists of some statements alleged to have been made by appellants to various persons, to the effect that they had never seen the deeds until after their father’s death. There is also evidence that Ruth A. Willard stated, after the death of her husband, to the complainants, in the presence of her fifteen-year-old daughter, that the grantees had never seen the deeds until after the death of the grantor. These several alleged admissions were denied by the grantees in the deeds and Mrs. Willard contradicts the statement imputed to her by the complainants and her daughter. On the morning of March 14, after Willard died on the 13th, John Sampson, a son of Mrs. Willard by a former marriage, at the request of Ora A. Willard called upon Mrs. Willard for the deeds for the purpose of having them recorded. They were delivered to the recorder on the 14th of March and after they were recorded they were mailed to the grantees. H. V. Jones testified that Charles H. Willard told him in the summer of 1905 that he had divided up with “the boys and the old ladythat he divided the home place. Charles Lemon testified that Willard told him two or three times that he had given his land away, or most of it, except a life interest in one place; that he said, “They would have it some day and might as well have it now and save troublethat he was going to give the land to the boys and that' there were some of the family he was going to cut off.

Such is the substance of the testimony bearing on the question of the delivery of the deeds. Upon these facts the master, who saw the witnesses and heard them testify, found that there was a delivery of the deeds, while the court found that the deeds were not delivered.

When the owner of property in good faith makes a voluntary conveyance of it to those who would naturally have a claim upon his bounty, courts of equity are strongly inclined to uphold the conveyance, and will do so unless impelled to the opposite conclusion by strong and convincing evidence. There is in such cases a high degree of mutual confidence sustained between the parties. It often happens that the beneficiary, because of tender years and want of discretion, is unable to comprehend and protect his own interests. In view of these considerations courts of equity do not attach so much importance to the mere manual possession of the deed as they do to the intent of the grantor, as gathered from the whole evidence, in regard to the vesting of the title. If the intention of the grantor to pass the title presently to the grantee is satisfactorily made out by the proofs, courts of equity have usually sustained such conveyances even in cases where the manual possession of the deed remained with the grantor. (Souverbye v. Arden, 1 Johns. Ch. 256; Bryan v. Wash, 2 Gilm. 557; Cline v. Jones, 111 Ill. 563; Douglas v. West, 140 id. 455; Miller v. Meers, 155 id. 284; Chapin v. Nott, 203 id. 341; Henry v. Henry, 215 id. 205; Creighton v. Roe, 218 id. 619.) This is the well settled law in this State. In Chapin v. Nott, supra, this court said, on page 347: “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.” In Henry v. Henry, supra, on page 211, this court said: “In cases of voluntary settlement the mere fact that the grantor retains the deed in his possession is not conclusive against its validity, if there are no other circumstances, besides the mere fact of his retaining it, to show that it was not intended to be absolute.” The above rule, which was first announced by this court in Bryan v. Wash, supra, has been uniformly followed down to the present time.

Under the evidence in this record and the rules of law announced in the foregoing authorities the deeds in question were delivered, and the court erred in sustaining the exception to the master’s finding on this question.

It is alleged in the bill that the deeds in question are testamentary in character, and that they should for that reason be held inoperative and void. This contention is based, as to the deed for 120 acres, upon the following reservation in the deed: “But the grantors herein hereby expressly reserve the use and absolute control of said premises for and during the period of their natural lives, and the title of said grantees as joint tenants, in equal parts, in said lands shall become absolute only on the death of said Charles H. Willard and Ruth A. Willard, or the survivor of either of them.” In the view we take of the foregoing clause it has no other effect than to reserve a life estate in the grantor and his wife and the survivor of them. While it is not necessary to determine whether the estate of the grantees is a vested remainder in fee or contingent upon the grantees surviving their parents, we are inclined to the opinion that a fair construction of the clause would give the grantees a vested estate in remainder. There could be no doubt about this view were it not for the survivorship clause in regard to the grantees. The use of the word “absolute,” in reference to the title that the grantees are to have, seems to imply that the grantees were to take a title presently, but that such title would not be perfect but would become so on the death of the grantors. The thing that was to be united with the title of the grantees on the death of the grantors and by which it would “become absolute,” was the “use and absolute control of said premises,” which was expressly reserved to the grantors during their natural lives. But even if the deed be construed as conveying a fee simple title to commence in futuro, under the well settled law of this State the deed, if executed and delivered, is valid. Since livery of seizin is no longer necessary to a valid conveyance, an estate in fee may be conveyed to commence in the future, without the creation of any intermediate estate to support it. (Shackelton v. Sebree, 86 Ill. 616.) But there was here a life estate reserved to the grantors as to the deed now under consideration, which was all that was required when livery of seizin was one of the formalities of a conveyance. The deed to the 240-acre tract contained the following clause: “This conveyance is made to Ora Arthur Willard and Grover Cleveland Willard in equal parts, as part of their distributive share of the estate of Charles H. Willard, and said grantees accept this conveyance with the condition that under no circumstances shall they convey or encumber said lands during the lifetime of said Charles H. Willard without his written consent thereto.” The above clause not only does not show that the conveyance was testamentary, but it expressly recognizes the title as being vested in the grantees, with the right to convey and encumber the same, upon the condition that the written consent of Charles H. Willard be obtained. If the deed had not been delivered or if it was not to take effect until after the death of the grantor the clause above quoted would be wholly unnecessary. In our opinion the clause tends to confirm the claim that this deed was delivered with the intention of vesting title in the grantees immediately, and that the only object of inserting the condition was to protect the grantees from the improvident disposition of the land.

It results from the views herein expressed that the decree of the circuit court is erroneous. Accordingly it is reversed and the cause remanded to the circuit court of Champaign county, with directions to dismiss the bill for want of equity.

Reversed and remanded, with directions.