Allenbach v. Ridenour , 51 Nev. 437 ( 1929 )

The issue made by the pleadings in this case involves primarily the construction of two instruments — one a deed which is made a part of the plaintiffs' complaint, and the other a will which is made a part of the defendants' answer to the complaint. The main question for decision is whether the instrument, which possesses the formalities of a deed, is a deed or a will. The instrument contains the following provisions:

"The above-described real property, ditch, and water rights being the same property conveyed to said D.W. Ridenour by that certain deed bearing date the 20th day of March, 1916, and recorded in Book 47 at page 316, Records of Deeds of Washoe County, Nevada, and executed by W.F.P. Lyell. Together with the tenements, hereditaments and appurtenances thereunto belonging or appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, subject, however, to the following reservations, reversions and remainders; that if the said C.D. Ridenour has not conveyed or transferred the said described lands at any time prior to his death, then in that event an undivided one-half (1/2) interest in said premises is to revert to and reinvest in fee in the grantor or heirs of the grantor herein now living or to their heirs, executors or legal representatives, and they shall be the owners of said undivided one-half interest in said premises.

"To have and to hold the said premises, together with the appurtenances, unto the said party of the second part, and to his heirs and assigns forever subject to the reservations and remainders as above mentioned."

At the time of the execution of the deed the grantor made his last will, which contains, among others, the following clauses:

"Second. I further declare that I have by deed transferred to my son, S.D. Ridenour, of Susanville, California, all of the real property which I own in Lassen County, California, formerly known as the D.C. Wheeler ranch, together with all live stock, farming utensils and implements and other personal property which I own in connection with said ranch, which said deed has been or will be placed in escrow in the Scheeline Banking Trust Company, of Reno, Nevada, to be delivered upon my death. I have also by deed conveyed to my son, C.D. Ridenour, of Reno, Nevada, that certain ranch in Washoe County, formerly known as the Lyell Ranch, together with all livestock, farming implements and other personal property belonging to me, kept and used in connection with said ranch, which said deed has been or will be placed in escrow with said Scheeline Banking Trust Company to be delivered upon my death.

"Third. I devise and bequeath all of my real and personal property, of whatsoever character and wheresoever situated, of which I may die possessed, other than the real and personal property which I have conveyed to my sons, as above mentioned, to my wife, Mary J. Ridenour, during her lifetime, and at her death all of the residue of the personal and real property which may be in her possession to be divided equally among our four children, to wit, our sons C.D. Ridenour, of Reno, Nevada, and S.D. Ridenour, of Susanville, California, and our daughters, Hattie Allenbach and Echo Gerow, both of Reno, Nevada, to share equally therein."

The complaint proceeds upon the theory that the will did not devise, bequeath or convey to any devisee any part or portion of the property and premises described in the complaint and that as to said property and premises the decedent, David W. Ridenour, died intestate. The answer denies this allegation and asserts that it was the intent of the testator to convey to the defendant, C.D. Ridenour, all the property described in the deed concerning which this action was brought.

I am impressed that the instruments were drawn by a person skilled in legal phraseology, and they must be judged by the legal meaning of the words employed. The deed in form is that of a bargain and sale deed, but it is conceded, or must be conceded, that it was intended as a voluntary grant made by a father to his son, in consideration of love and affection, and executed animo testandi. By reference to the will it will be observed that the testator says: "I have also by deed conveyed to my son, C.D. Ridenour." But it will also be observed that the deed is made to speak from the date of the death of the testator.

In determining whether the instrument is a deed or a will the controlling question is: "Did the maker intend any estate or interest whatever to vest before his death, and before the execution of the paper? Or * * * did he intend that all the interest and estate should take effect only after his death, If the former, it is a deed; if the latter, a will; and it is immaterial whether he calls it a will or a deed, the instrument will have operation according to its legal effect." Henderson v. Henderson, 210 Ala. 73, 97 So. 353; Niccolls v. Niccolls,168 Cal. 444, 143 P. 712; Knight v. Knight, 133 Miss. 74, 97 So. 481; In Re Neil's Estate, 111 Or. 282, 226 P. 439; Mumpower v. Castle,128 Va. 1, 104 S.E. 706; Young v. O'Donnell, 129 Wash. 219, 224 P. 682; 40 Cyc. 1085 (b), note 47; Devlin on Deeds, sec. 309.

Tested by the rule enunciated by the authorities cited, I am of the opinion that the legal effect of the instrument is a will and not a deed: First, because it is to take effect only from the date of the death of the maker. Second, it appears from the extrinsic evidence that the maker exercised complete dominion and control over the property up to the time of his death, and in fact at one time leased it to a stranger for a term of years at a stated rental, with option to purchase. Third, it attempts to convey in fee to the son upon condition that, if the property was not sold in the grantee's lifetime, then and in that event an undivided one-half of the property is to revert to the grantor or his heirs now living or other heirs. Whether such a reversion is repugnant to the grant, and void, I express no opinion. Fourth, the instruments were executed together with testamentary intent. Fifth, the doctrine of the cases is that, whatever the form of the instrument, if it possess no present interest, but only points what is to be done after the death of the maker, it is a testamentary instrument. Devlin on Deeds, sec. 309.

Entertaining the view that the deed is a testamentary instrument, I conclude that its delivery to C.D. Ridenour and its acceptance by him was not induced by a common or mutual mistake of the parties in interest as to the legal effect of the instrument. Feeling as I do that by its delivery the will and manifest intent of the testator was carried out, I dissent from the opinion of the majority.