Short v. Kleppinger

Full title: NETTIE M. SHORT ET AL., APPELLANTS, v. EARL P. KLEPPINGER ET AL., APPELLEES

Court: Supreme Court of Nebraska

Date published: Feb 15, 1957

81 N.W.2d 182 (Neb. 1957)

81 N.W.2d 182

Opinion

No. 34038.

Filed February 15, 1957.

1. Deeds. Whether or not a deed is delivered ordinarily depends upon the intention of the grantor as determined from the facts and circumstances of each particular case. 2. ___. No particular acts or words are necessary to constitute a delivery of a deed. Anything done by the grantor from which it is made to appear that a delivery was intended, whether by words or acts, or both, is sufficient. 3. ___. The criterion upon which the question of delivery depends is whether or not the grantor intended the deed to operate as a muniment of title to take effect presently. 4. ___. A conveyance once made cannot be changed by any subsequent act or statement, which does not meet the requirements of law governing the conveyance or nonacceptance of property. 5. Witnesses. A statute making a witness having a direct legal interest in the controversy incompetent to testify against the representative of a deceased person as to any conversation or transaction between such witness and the deceased person does not render incompetent as a witness a third party who relates a conversation between the deceased and another, in which the witness took no part. 6. Deeds: Witnesses. An attorney who prepared a deed at the request of the grantor and who was present at the time of its execution and delivery is competent to testify to factual matters concerning the preparation, execution, and delivery of the deed, such matters not being privileged communications within the meaning of sections 25-1201 and 25-1206, R.R.S. 1943. 7. Attorney and Client: Witnesses. Only confidential communications to one's attorney are protected by sections 25-1201 and 25-1206, R.R.S. 1943, and privilege does not extend to communications made in the presence of others or mere directions given to an attorney acting as scrivener in preparation of instruments. 8. Wills: Deeds. A provision in the will of the grantor, made subsequent to the execution of a deed and indicating that he had conveyed the property involved in the controversy by deed, is a circumstance that properly may be considered with all the other facts and circumstances in determining whether or not there had been a delivery of the deed with the intent to convey the property described in it to the named grantees.

APPEAL from the district court for Boone County: ROBERT D. FLORY, JUDGE. Affirmed.

Sterling F. Mutz, for appellants.

Louis B. Nore, Brogan Brogan, and Robert F. Galloway, for appellees.

Heard before SIMMONS, C.J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, J.

This is a suit in equity by the ten named residuary legatees in the will of Elizabeth J. Illian to have a deed to 240 acres of land executed on July 5, 1949, to appellees Earl P. Kleppinger and Hallie J. Kleppinger, declared null and void. The trial court found that the deed was properly executed and delivered on July 5, 1949, and quieted the title to the land described therein in appellees as tenants in common. The plaintiffs below have appealed.

The appellants, who will be hereafter referred to as the plaintiffs, are nieces and nephews of the deceased first husband of Elizabeth J. Illian. The appellees, who will hereafter be referred to as the defendants, are nephews of Elizabeth J. Illian, they being the sons of her deceased brother. Mrs. Illian died on January 5, 1954, without issue. On February 5, 1954, Roger I. Blatter was appointed administrator with will annexed of the estate of Elizabeth J. Illian, deceased, and he qualified as such. We shall hereafter refer to him as the administrator. The sole issue to be determined under the pleadings and evidence is whether or not the deed in question was delivered on July 5, 1949.

The substance of the evidence offered at the trial is as follows: On July 5, 1949, the deceased, accompanied by her nephew, Earl P. Kleppinger and his wife, Mildred, went to the office of her lawyer, Louis B. Nore, and caused the deed to be drawn and executed. Mr. Nore testified that after the deed was executed he handed it to Earl Kleppinger at the direction of Mrs. Illian. Mildred Kleppinger testified that Mrs. Illian told Mr. Nore that she wanted the south farm, it being the one in question, to go to Earl and Hally and that he was to so draw the deed, that she wanted it drawn accurately as this was to be the final act. Mildred testified that, after the deed was drawn and executed, Mrs. Illian said to Mr. Nore: "Give those deeds to Earl, give that deed to Earl. It is now his. It is his responsibility. I have given this property away. It is no longer mine." Mildred testified further that Mrs. Illian told Earl to take the deeds to Lincoln and keep them in his box in Lincoln. She says there was some discussion about registering the deeds and that Earl stated that since Mrs. Illian had the use of the land during her lifetime, why not wait until her death to register them and that Mrs. Illian replied: "If you do not register them at this time, immediately upon my death, take them to the court house and register them. Don't wait for anything, not even for my funeral." She then stated that Mr. Nore placed the deed and an affidavit prepared by Mr. Nore in an envelope and sealed it. A statement was placed on the outside of the envelope and signed by Mrs. Illian. The statement was: "TO THE EXECUTOR OF THE ESTATE OF ELIZABETH J. ILLIAN: Please hand this envelope to Earl P. Kleppinger and Hallie J. Kleppinger, after my death. It has in it certain valuable property belonging to said persons. Signed, Elizabeth J. Illian." Mrs. Illian then said: "Now, give that to Earl." Mildred stated that Earl held the envelope in his hand and, after some discussion decided not to take it with him because of "the distance and the danger of transportation, and the necessity to bring them back for registration and because there were other deeds, as you know, involved, and these people who were to receive the other deeds were scattered all over the United States, — one of them was even in Hawaii." The record shows that Mrs. Illian and Mr. Nore then took the envelope to the bank, while the others awaited their return.

Louis B. Nore, the attorney for Mrs. Illian, testified that he prepared the deed at her request; that it was signed by Mrs. Illian in his presence; and that he took the acknowledgment on the deed as notary public. He testified that after the execution of the deed and affidavit he handed them to Earl P. Kleppinger at the specified request of Mrs. Illian. He testified also that he placed the deed and affidavit in the envelope hereinbefore referred to and caused it to be sealed. He further stated that the envelope and contents were handed back to him and that he and Mrs. Illian took it to the bank and placed it in Mrs. Illian's private box.

The record shows, also, that on July 6, 1949, Mrs. Illian made her will in which it was provided: "Fourth: I have conveyed all my real estate by good and sufficient warranty deeds and I do not own any real estate at this time."

There is evidence in the record that on an occasion, probably in 1952, Mrs. Illian was asked by a neighbor about selling off a few acres of the farm. She replied that she could not sell it because it was not hers, that she had given it away by deed. A neighbor, Grace Langrall, testified that she was well acquainted with Mrs. Illian and that the latter had told her that her real estate, except her home, was to go to her side of the family. One Dorothy Hohbein, a housekeeper for Hally J. Kleppinger, testified that Mrs. Illian told her in 1951: "Well, I deeded Earl and Hally the south farm."

There was no testimony offered by the plaintiffs which disputed or impeached the evidence of the defendants tending to establish the delivery of the deed. Plaintiffs do contend, however, that the evidence of Mildred Kleppinger and Louis B. Nore is incompetent, and that if this be so, the evidence is insufficient to sustain the judgment of the trial court.

The record shows that on November 13, 1953, Roger I. Blatter was appointed guardian of Elizabeth J. Illian as an incompetent person. In such capacity he entered the box belonging to Mrs. Illian and found the envelope and contents to which reference has hereinbefore been made. He took it, accompanied by his attorney, to the office of the county judge of Boone County. The envelope and contents were thereafter retained by the county judge for safe keeping. On March 2, 1954, the envelope and contents were delivered to Hally J. Kleppinger for himself and for Earl P. Kleppinger by power of attorney, a receipt being given therefore by Hally J. Kleppinger. The deed was recorded on March 2, 1954. It was stipulated by the parties that no instruments were filed of record relating to the land described in the deed between July 5, 1949, and March 2, 1954.

Whether or not a deed is delivered ordinarily depends upon the intention of the grantor as determined from the facts and circumstances of each particular case. No particular acts or words are necessary to constitute delivery of a deed. Anything done by the grantor from which it is made to appear that a delivery was intended, whether by words or acts, or both, is sufficient. The criterion upon the question of delivery is whether or not the intention of the grantor was that the deed was to operate as a muniment of title to take effect presently. If such was the purpose, the delivery was complete and the title to the property passed. A conveyance once made cannot be changed by any subsequent act or statement, unless it meets the requirements of the law governing a conveyance or nonacceptance of the property. Hipsley v. Hipsley, 162 Neb. 518, 76 N.W.2d 462; Dowding v. Dowding, 152 Neb. 61, 40 N.W.2d 245; Black v. Romig, 151 Neb. 61, 36 N.W.2d 772. It is clear from our holdings that, without a delivery in the lifetime of the grantor, there is no valid deed of conveyance. Where the proof shows only the execution of deeds which were found among the private papers of the grantor after his death, it is not sufficient to establish delivery.

The evidence of Mildred Kleppinger supports the finding of the trial court that there was a delivery of the deed in the instant case. Plaintiffs contend, however, that her evidence was incompetent under the provisions of section 25-1202, R.R.S. 1943, commonly called the dead man's statute. This statute prohibits persons having a direct legal interest in the result of any civil action or proceeding from testifying to any transaction or conversation had between the deceased person and the witness, when the adverse party is the personal representative of a deceased person and their interest is adverse to that of the representative who makes objection and does not waive the prohibition. Mildred Kleppinger, as the wife of Earl P. Kleppinger, one of the grantees in the deed involved in the present case, has a direct legal interest in the result under our holdings in Oft v. Ohrt, 128 Neb. 848, 260 N.W. 571, and Garner v. McCrea, 147 Neb. 541, 23 N.W.2d 731.

With reference to the testimony of Mildred Kleppinger, the evidence shows that the law office of Louis B. Nore consists of two rooms. At the time the deed was drawn and executed, Mrs. Illian, Mr. Nore, and Earl Kleppinger were in the inner office. Mildred sat just outside of the open door connecting the two rooms. She took no part in the conversations or transactions that took place at that time, although she heard what was said and saw what was done. The rule in such cases is: The statute does not apply where the transaction or conversation was not between the witness and the deceased person, but between the latter and a third party, in which the witness took no part. Kroh v. Heins, 48 Neb. 691, 67 N.W. 771; McNea v. Moran, 101 Neb. 476, 163 N.W. 766; Tyler v. Estate of McDougal, 126 Neb. 534, 253 N.W. 672; Dvorak v. Kucera, 130 Neb. 341, 264 N.W. 737. The evidence of Mildred Kleppinger was clearly admissible under the foregoing holdings of this court.

The plaintiffs contend also that the evidence of Louis B. Nore, the attorney for the deceased, was not admissible for the reason that it was a privileged communication. The evidence shows that Mr. Nore drafted the deed and signed it as a witness at the request of Mrs. Illian. His evidence relates to the facts concerning the drafting, execution, and delivery of the deed. It does not relate to communications or transactions that are privileged because of their confidential nature. In re Estate of Coons, 154 Neb. 690, 48 N.W.2d 778; Lennox v. Anderson, 140 Neb. 748, 1 N.W.2d 912; Brown v. Brown, 77 Neb. 125, 108 N.W. 180. In any event, the presence of Earl and Mildred Kleppinger had the effect of removing any privilege that otherwise might have been invoked. Communications between attorney and client made in the presence of others do not constitute privileged communications within the meaning of sections 25-1201 and 25-1206, R.R.S. 1943. It is only communications which are confidential that are protected. Directions given by a grantor to an attorney acting as scrivener in the preparation of a deed do not come within the purview of the statutes governing privileged communications. Jenkins v. Jenkins, 151 Neb. 113, 36 N.W.2d 637; Crawford v. Raible, 206 Iowa 732, 221 N.W. 474. We think the trial court was right in admitting this evidence.

The evidence shows that on the day following the execution of the deed, Mrs. Illian executed her will, in which it was stated that she had no real estate as she had given it away by deed. This question was before the court in Hipsley v. Hipsley, supra, in which we said in effect that this was evidence confirming the execution and delivery of the deeds in question. We think the provision of the will in the instant case is evidence to be considered in connection with all the circumstances in determining whether or not there was a delivery of the deed by Mrs. Illian with the intent to divest herself of the title to the lands described therein.

A deed does not become operative until it is delivered with the intent that it shall become effective as a conveyance. Whether such intent actually existed is a question of fact to be determined by the evidence and circumstances of the case. If the grantor's conduct and all the circumstances connected with the transaction are such as to indicate that it was the intention of the grantor to give effect and operation to the deed, and to relinquish all power and dominion over it, the law will effectuate the deed in accordance with this intention, and will construe the delivery as valid. A deed once delivered does not cease to be a deed because it is subsequently found in the possession of the grantor. In the present case there is evidence of the actual delivery of the deed to one of the grantees, accompanied by the statement that the property is now his. The attorney for the grantor testified to the preparation, execution, and delivery of the deed to Earl P. Kleppinger, all at the instance of Mrs. Illian. The will made by Mrs. Illian on the day following the execution of the deed confirms her intention to relinquish all power and control over the deed. The evidence of her subsequent statements and conduct is consistent with the finding that a delivery was made. There is no evidence at any time after the execution of the deed that her conduct was inconsistent with an intent to deliver the deed on July 5, 1949. On a trial de novo, we arrive at the same conclusion as the trial court that the evidence sustains the execution and delivery of the deed on July 5, 1949, with the intent to convey the land described therein to the grantees. The decree of the district court is affirmed and the costs of the appeal are taxed against the appellants.

AFFIRMED.