Opinion
December 21, 1931.
1. WILL: Incorporation of Deed. If a will incorporates in itself by reference a deed imperfectly executed, the deed, if in existence when the will was executed and identified by clear and satisfactory proof, takes effect as part of the will.
2. ____: ____: Identification. A deed conveying land to a granddaughter, but "reserving mineral rights," was not incorporated in the later will of the same grantor devising the same land to the same granddaughter "as per warranty deed filed with these acknowledgments." These last words do not indicate that the deed was in existence at the time the will was executed; they do not state where or with whom the deed was filed, if then in existence; they in no way identify the deed, and for that reason the reference did not incorporate in the will a prior deed reserving mineral rights, and the devise was not limited to the surface of the land, but included the mineral rights.
3. ____: ____: For Purpose of Description. Where there is no evidence tending to show that a deed conveying land to a granddaughter but "reserving mineral rights" was ever delivered, and the evidence tends to show that the grantor did not have the deed in his home at the time his will was there being written, a clause in the will attempting to devise unconditionally the same land to the same granddaughter by describing it as the southeast quarter of the southeast quarter of a named section, township and range, "as per warranty deed filed with these acknowledgments," indicates that he was not sure of the description stated in the will, and by the words "as per warranty deed filed with these acknowledgments" meant to refer to the deed as accurately describing the land devised, and not as intending by the reference to reserve the mineral rights.
Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.
AFFIRMED.
E.M. Wright for appellants.
(1) The deed by Joseph A. Harris was delivered during his lifetime. That fact is gathered from all the incidents and transactions connected with it, or as the court expresses it, "from the four corners." Waldermeyer v. Loebig, 222 Mo. 552; Stoepler v. Silberling, 220 Mo. 267; Williams v. Latham, 113 Mo. 174; Cook v. Newby, 213 Mo. 490. (2) A deed unconditional in its terms and beyond the control of the grantor constitutes an investiture of title such as to give the grantee a present fixed right of enjoyment in the land conveyed. Cook v. Newby, 213 Mo. 490; Foreman v. Archer, 130 La. 55; Prutsman v. Baker, 30 Wis. 644; Peterman v. Crowby, 226 S.W. 946; Mendenhall v. Pearce, 20 S.W.2d 675. (3) A deed delivered for the use and benefit of the grantee has the same effect in the hands of the custodian as if it had been manually delivered by the grantor to the grantee. Schooler v. Schooler, 258 Mo. 83; Terry v. Glover, 235 Mo. 544; Seibel v. Higham, 216 Mo. 121. (4) The mere possession of a deed by the grantor, even after delivery to an agent for the grantee, does not rebut the presumption of delivery. Tobin v. Bass, 58 Mo. 654; Rumsey v. Otis, 133 Mo. 95; Hamilton v. Armstrong, 103 Mo. 97. (5) The delivery of the deed to Morton with instructions to deliver it to the administrator is inconsistent with plaintiff's conclusion that it was left with him for safe-keeping. (6) The respondents pleaded, identified, introduced in evidence and proved the execution of the will and deed in controversy, and the appellants accepted them as the basis of this action. What more could be said than to the court hath been said, that this deed is the identical paper referred to in the will? (7) In defining the intent of the testator mere technical rules must yield to the obvious intent and purpose of the testator. This rule applies to deeds as well as wills. Gannon v. Albright, 183 Mo. 248. (8) When one deed or instrument refers to another, the instrument or deed referred to becomes thereby a part and parcel of the former instrument. Waldermeyer v. Loebig, 222 Mo. 552; Agan v. Shannon, 103 Mo. 661. (a) And it does not matter whether the paper referred to was attested or not, it becomes a part of the will which is attested. White v. Reading, 239 S.W. 93. (b) And the instrument must be construed in connection with the paper referred to. Allen v. DeGroodt, 105 Mo. 450; Telleman v. Carthage, 247 S.W. 995. (9) The deed having already conveyed the title to the land at the time of its execution is not affected by anything that was said in the will or done with the paper writing constituting the deed, but the will is affected by the deed, and the conditions of the deed, and limits the bequest to the grantee to the conditions of the deed. The deed is incorporated in and becomes operative as a part of the will itself. White v. Reading, 239 S.W. 92; Mutchum v. Holmes, 117 Mo. 208; Agan v. Shannon, 103 Mo. 661; Brownlee v. Arnold, 60 Mo. 79; Lincoln v. Thompson, 75 Mo. 637; Chambers v. McDaniel, 25 N.C. 186. (10) There was no greater estate created in favor of Eva Harris out of which the mineral estate was carved. Gannon v. Albright, 183 Mo. 247; Small v. Field, 102 Mo. 125.
W.G. Gideon for respondents.
(1) A deed must be delivered by the grantor to the grantee, in the grantor's lifetime, or to some one for the grantee at grantor's death and be accepted by grantee. Delivery to the grantee or to some one for the use of the grantee, in the lifetime of the grantor, without condition, is essential to a complete execution of a deed; if not delivered, it is of no more effect than if not signed. Hamerslough v. Cheathim, 84 Mo. 13; Allen v. DeGroodt, 105 Mo. 442; Creamer v. Bivert, 214 Mo. 473. There was no constructive delivery to make the deed in this case effectual. It must have been actually delivered to the grantee, Eva Harris, or to some one for her, thereby passing a present interest, and have passed absolutely out of the dominion and control of the grantor. A mere deposit for safe-keeping, where the depositary understood he would have to return the instrument, if called for, is not such a parting of dominion and control over the deed by the grantor, and did not pass a present interest in the land. Schooler v. Schooler, 258 Mo. 83; Gillespie v. Gillespie, 289 S.W. 579; Mudd v. Dillon, 166 Mo. 110; Peters v. Berkmeier, 184 Mo. 393; Miller v. McCaleb, 208 Mo. 576; Sexton v. Merchants L. T. Co., 257 Ill. 551; Ray v. Walker, 240 S.W. 187. A deed to be delivered after death does not pass a present interest. Griffin v. McIntosh, 176 Mo. 392; Osborne v. Eslinger, 155 Ind. 351. (2) The statement at the foot of the seventh clause of the will "as per warranty deed filed with these acknowledgments," conceding the paper referred to was such as could have been incorporated in the will, was too vague and indefinite to identify the paper referred to, as it did not point out any particular deed, by giving date and name of parties by reasonably certain evidence — even by parol. The burden of proof was on the appellants to prove the identity of a paper referred to in the will, even conceding for argument's sake the paper referred to as being a valid instrument that could be incorporated. The deed being void and having no dispositive value, could not be incorporated. Jarman on Wills (5 Ed.) 228, and footnote 24; Bailey v. Bailey, 7 Jones (N.C.) 44; Phillips v. Robbins, 40 Conn. 271; Chambers v. McDaniel, 28 N.C. 227. A deed being void for want of delivery, a reference to it in the will of grantor cannot be held to amount to a devise by implication. Benson v. Hall, 150 Ill. 60; Page on Wills, 552, sec. 468.
Action to cancel a deed and thereby quiet in plaintiffs the title to the southeast quarter of the southwest quarter of Section 10, Township 28, Range 23, in Greene County, Missouri. The deed was cancelled and title decreed in plaintiffs. Defendants appealed.
It was alleged that plaintiffs owned by purchase an undivided one-half interest in the land, and that plaintiff, Eva Neill ( nee Harris) owned the other one-half interest as devisee under the will of her grandfather, Joseph A. Harris, deceased; that defendants claim an interest in the land under said will, and that said deed and the record thereof in the office of the Recorder of Deeds of Greene County is a cloud upon the title of plaintiffs. Wherefore, they prayed for cancellation of the deed and a decree quieting the title in plaintiffs.
Defendants answered by certain admissions (not material) and a general denial. They further alleged that on November 3, 1917, Joseph A. Harris executed and delivered a deed conveying his undivided one-half interest in the land to Eva Neill ( nee Harris), reserving all mineral rights; that on June 12, 1920, he executed a will devising his undivided one-half interest in the land to Eva Neill "as per warranty deed filed with these acknowledgments;" that he delivered the will and deed to H.B. Morton and directed him to deliver them after his death to the executor of the will; that H.B. Morton delivered the will and deed as directed; that the executor filed the deed for record in the office of the Recorder of Deeds of Greene County; that the deed was there recorded; that the will was duly probated and final settlement of the estate was made; that the deed conveyed and the will devised to Eva Neill only the surface of the land that under the terms of the deed and the will the mineral rights to the land were reserved and title to same passed under the residuary clause of the will to defendants and Cora Harris Pfaff. Wherefore, they prayed for a decree quieting in them the mineral rights to the land.
The reply, after certain admissions (not material), was in effect a general denial.
The facts follow:
Plaintiff Eva Neill ( nee Harris), Cora Harris Pfaff, and defendants are the only heirs at law of Joseph A. Harris, deceased. After the death of Joseph A. Harris, Cora Harris Pfaff quit-claimed her interest in the land to Eva Neill, and for that reason is not a party defendant. On November 3, 1917, Joseph A. Harris signed a deed conveying his undivided one-half interest in the land to his granddaughter Eva Harris (now Eva Neill), reserving the mineral rights. He neither delivered the deed to Eva Harris nor to anyone for her use and benefit. On June 12, 1920, Hugh Newell went to the home of Joseph A. Harris to write his will. He was accompanied by H.B. Morton, cashier of the bank. Mr. Newell wrote the will, Joseph A. Harris signed it, and Newell and Morton signed as witnesses. Mr. Harris delivered the will to Mr. Morton. It was not enclosed in an envelope nor were there any written instructions with the will. The witnesses did not remember that Mr. Harris had or referred to a deed for information at the time the will was written. The will and a deed were in the bank, but Mr. Morton did not remember whether the deed was delivered to him at the time the will was executed or at a later date. There were no oral or written instructions from Mr. Harris accompanying the delivery of the deed to Mr. Morton. The will and deed were left with him for safe-keeping in the safe at the bank. He testified that if Mr. Harris had called for them he would have delivered them to him. Mr. Harris died about three months after the execution of the will. Thereafter Mr. Morton produced the will and deed in the probate court. The deed was delivered to the executor, who filed it in the office of the Recorder of Deeds of Greene County for record, without the knowledge or consent of Eva Neill. After the death of Joseph A. Harris plaintiffs Eva Neill and her husband, R.R. Neill, purchased the undivided one-half interest of Nora L. Garton in the land.
There was no evidence tending to show a delivery of the deed. Even so, defendants contend that by reference, the deed was incorporated in the will and limited the interest devised to Eva Neill to the surface or agricultural part of the land. The clause devising the land follows:
"To my granddaughter, Eva Harris (daughter of Charles S. Harris), I give, devise and bequeath an undivided one (½) half interest in the real estate property described as follows:
"Lot, tract or parcel of land lying, being and situate in the County of Greene, State of Missouri, to-wit: All of the South East (¼) quarter of the South West (¼) quarter of Section (10) Ten, Township Twenty-eight (28) Range Twenty-three (23), containing Forty (40) acres more or less, as per warranty deed filed with these acknowledgments."
The rule may be stated as follows:
"If a properly executed will incorporates in itself by reference any document or paper not so executed, whether it be in form of a will or codicil, or of a deed or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will. It is not essential that the paper referred to be itself a dispositive instrument. However, it is well settled that, in order that a paper may be incorporated in a will by reference, it must be referred to in the will as existing, and it must in fact be in existence at the time of the execution of the will. And the will must clearly and definitely describe the papers intended to be incorporated, so that no room for doubt can exist as to what papers were meant. The burden of proving the identity of the paper alleged to be incorporated by reference is upon the party claiming that it was so incorporated. While parol evidence is necessarily admissible to prove whether there is or is not in existence at testator's death any such instrument as is referred to in the will, and may be received to effect identification where the reference in the will is such as to make the paper referred to capable of identification, yet it is not admissible to show what paper was meant when the uncertainty and ambiguity as to the paper referred to is patent upon the face of the will." [40 Cyc. 1094; White v. Reading, 239 S.W. 90.]
It will be noted that the reference to the deed does not indicate that it was in existence at the time the will was executed. The testator may have referred to a deed to be executed in the future and filed with the will. It was not stated where or with whom the deed was to be filed, the names of the parties to the deed or the date of its execution. The country was full of warranty deeds on file in different places. The will in no way identifies the deed, and for that reason the reference did not incorporate it in the will. Moreover, if the reference was sufficient to incorporate the deed in the will, we do not think it limited the interest devised to Eva Neill. The evidence tends to show that the testator did not have the deed at his home at the time the will was written. He may not have been sure of the description given in the will and for that reason referred to the deed as accurately describing the land devised. In view of these conclusions it is unnecessary to consider the question presented by plaintiffs that the estate devised to Eva Neill could not be limited "by subsequent words less affirmative than the words creating the greater estate."
The motion to dismiss the appeal and the motion to strike out parts of appellants' amended brief are overruled. The judgment is affirmed. All concur.