dissenting:
I am constrained to dissent from the majority opinion on the ground that it omits a substantial portion of the operative facts, and effects a glaring miscarriage of justice in disregard of established rules of law.
According to the record, the grantor’s scheme of distribution, his conduct, the statements in the letters of his daughter Helen, plaintiff’s mother, and the conduct of the able attorney who drafted the instruments, all indicate clearly that the grantor conveyed to his daughter Helen a fee interest in the 190 acres granted in the missing and unrecorded deed, rather than a life estate with remainder in the plaintiff, as the majority opinion states. Moreover, the evidence also indicates that Helen returned the deed to her father in consideration of the $11,000 given by her father to her and her husband in 1931 to- pay their debts, a fact not even mentioned in the majority opinion. The return of the deed, with the intention of revesting title in her father gave him an equitable title to that fee, which he granted by a recorded deed to the defendants, who are entitled to- the property. These conclusions, as found by the master, are supported by the overwhelming weight of the evidence, and are in accordance with the law.
Our case law is replete with statements of the rules that a plaintiff seeking to establish the existence and contents of an unrecorded deed by parol testimony must bear the burden of making such proof in a clear and conclusive manner, (Shipley v. Shipley, 274 Ill. 506,) and that a decree of a chancellor, in accordance with the findings of a master who heard the testimony, will not be disturbed unless it is manifestly against the weight of the evidence. Rizzo v. Rizzo, 3 Ill.2d 291, 299.
Notwithstanding these established rules, the majority opinion has set aside the master’s finding and held that the contents of the deed vested a life estate in plaintiff’s mother and a remainder in plaintiff, substantially on the basis of her recollection of the contents of the deed, viewed on a single occasion some 20 years before, when she was then 11 years old, and on the basis of her father’s self-serving testimony, which was impeached and contradicted throughout the record, as we shall show. Such testimony, in the opinion of the majority, constitutes “the manifest weight of the evidence,” and the requisite clear and conclusive evidence to establish the contents of an unrecorded deed, and to set aside recorded titles. With this I cannot agree.
This court has unequivocally stated that it will closely scrutinize and give limited weight to the testimony of an interested witness respecting the contents of a missing instrument. (Kerr v. Russell, 69 Ill. 666; Finley v. Felter, 403 Ill. 372.) In the Finley case the sole issue was whether the plaintiff grantor’s name, appearing on the recorded but lost deed, was a forgery, and plaintiff’s claim of forgery rested entirely on his testimony and that of his attorney who filed the suit, just as plaintiff’s claim herein rests upon her testimony and that of her father as to the phraseology of the lost deed. The court stated: “ ‘The proof to sustain such a charge is required to be, however, of the clearest, strongest and of the most convincing character, and by disinterested witnesses. It shocks the moral sense of community to say, the supported testimony of an interested witness, who' sees a fortune in his success, shall destroy the deliberate act of an officer appointed by law to do the act he certifies, under the solemn sanctions of an oath, he has done.’ * * * Applying this rule of law to the instant cause, we find that the most interested person in the proceeding, the plaintiff himself, has given the most direct testimony to support the allegation that the signature on the deed was forged. It cannot be said, under any stretch of the imagination, that the plaintiff is a disinterested witness falling within the above-stated rule.”
It is not surprising that the master did not give much probative value to plaintiff’s testimony, which was not only self serving, but was based upon her observation of a deed 20 years before, when she was only a child of eleven. The master no doubt took cognizance of the fact that although plaintiff was positive in her testimony on August 9, 1955, as to the contents of the deed, yet on December 7, 1953, when she filed her verified complaint, and again on February 3, 1954, when she filed her verified amendment, she was not so positive, for in both pleadings she stated that her mother received either a life estate or a fee simple interest.
Similarly, even if the self-serving testimony of plaintiff’s father had not been impeached, his statement of the contents of the deed, based upon an observation some 20 years before, was also of limited probative value and insufficient to establish the contents of a deed. (Shipley v. Shipley, 274 Ill. 506.) In the Shipley case the plaintiff claimed that the land in dispute was conveyed to him by a deed destroyed before recording. In regard to the sufficiency of proof to establish the contents of it, the court stated at page 515: “The testimony as to what land was included in the alleged deed is not strong. The only evidence on which to support the decree on these points is that of Dr. Clark Shipley, who based his testimony on a reading of the deed some fourteen years before. * * * We cannot hold, on this record, that the proof as to the contents, execution and delivery of the alleged deed is as clear and convincing as the law requires.”
Nor can I agree with the majority opinion that the fact that some of the other deeds gave a daughter a life estate with remainder to the heirs of her body indicates that the missing deed also must have done so, for that presumption overlooks the grantor’s scheme of distribution, and all the circumstantial evidence with reference to the conveyance.
It is uncontroverted that the grantor, John Richards, was an able businessman, particularly in real-estate matters, having amassed some 1380 acres of farm land and city property; that he was striving to make the shares of each of his children as equal in value as possible; and that the deeds were executed by an able lawyer. Although Helen received more acres than her sisters, her land was the poorest, and the value of her share could be enhanced only by increasing her interest in it. That the grantor did this is patent from the fact that he executed two deeds to her. Since the first deed conveyed to her a “life interest” in 240 acres of the “Home Place,” the inference is compelling that the interest she received under the missing second deed, which included the remaining 30 acres of the “Home Place” and the “Martin Farm,” was not a life estate; otherwise it would have been conveyed in a single deed, as the grantor did in conveying the same interest in two farms in one deed to his daughter Gertrude. If the grantor intended, as the majority opinion assumes, that the same interest should be conveyed in this second deed as in the first one, why did he divide up the “Home Place,” and separate 30 acres from it to be included in the second deed, executed on the same day? The only reasonable inference from the grantor’s action, which was carried out by able counsel, is that he conveyed a different interest, a fee, rather than a life estate, in the second deed.
This interpretation is consistent with his other dispositions, for the only time he gave more than one deed to a daughter was to convey a different interest. Thus, although Gertrude received two separate farms, they were granted in a single deed, since she had the same interest in both tracts; whereas two deeds were used to convey the two separate pieces of property granted to his daughter Lucille, since she was given a life interest in one deed, and a fee in the other deed. It would therefore seem clear that if the interest which daughter Helen was to receive in each of these tracts was the same, the lawyer would have followed the same practice as in the conveyance to Gertrude, namely, use one deed, and only one, to convey both tracts. In this connection, the master specifically found: “It is inconceivable that any attorney of Mr. Trapp’s unquestioned ability would have prepared separate deeds to the ‘Home Place’ and the ‘Martin Farm,’ unless the estates conveyed or reserved were different to the two places.”
The statement in the majority opinion that the grantor gave two deeds because two separate pieces of property were involved is not accurate. The two deeds did not each involve mutually exclusive or separate tracts. As we have noted, the disputed deed included 30 acres which belonged to the “Home Place,” most of which was granted in the first deed. Nor does the majority opinion reconcile its interpretation with the fact that the grantor used only one deed to convey the two separate farms to his daughter Gertrude. Contrary to the court’s presumption, the plan of settlement indicates that the number of deeds did not depend upon, or correspond to, the number of pieces of property granted, but rather upon the interest granted. The grantor sought, not to give each daughter an identically worded deed, as the majority opinion assumes, but rather to achieve an equal division of the value of his property among his children, including fee interests and life interests.
Thus, it is evident that the grantor’s plan of distribution fails to substantiate in any way plaintiff’s self-serving recollections, as the majority opinion deduces. Moreover, the grantor’s subsequent conduct and that of plaintiff’s mother and the attorney also contradict plaintiff’s claim.
The record shows that the grantor raised $11,000 which he gave to his daughter Helen and her husband in 1931 to pay their debts, and that some months later he asked for and received the return of the disputed deed. His conduct thereafter in offering to sell the “Martin Farm,” covered by that deed, to the disinterested witnesses Barkley and Keist, and in subsequently conveying the entire 190 acres in fee to his other daughters, clearly indicate that he regarded himself as being revested with a fee. It is unlikely that a man as well versed in real estate as the grantor would attempt to sell and convey a farm in fee, if he had been revested with only his daughter’s life estate. It is even more unlikely that the reputable lawyer who had drafted the. original deeds would have executed the subsequent instrument to convey this property in fee to defendants, if the fee had not previously been vested in the plaintiff. Moreover, this lawyer, who later represented Helen when she requested her sisters to deed back the property to her, at no time made any reference in his correspondence to them of any vested remainder or other interest in Helen’s daughter, Virginia, the plaintiff herein, as would have been reasonable if she actually held such a vested remainder as claimed.
Therefore, in the light of all this evidence substantiating the master’s findings, that the original deed conveyed a fee interest to Helen, I cannot concur with the majority opinion which set aside those findings on the basis of testimony of limited probative value, at best.
As hereinbefore noted, it is my opinion that Helen returned the deed to the grantor with the intention of revesting title in him, and that such action was sufficient to vest in him, and his subsequent grantees, an equitable title to the property. Happ v. Happ, 156 Ill. 183; Crossman v. Keister, 223 Ill. 69.
Despite the protestations of Logan Holland, Helen’s husband, that he was tricked into relinquishing the deed in 1935? it is clear from the entire record that the grantor askecf for and Helen surrendered the deed in consideration for the $11,000 he gave her and her husband. This is evident from Helen’s letters stating that within months after they received the $11,000 in 1931, her father asked for and she returned the deed. Moreover, such action was consistent with his plan to give each daughter an equal share of the estate. This court can take cognizance, as did the master, that the $47.50 an acre at which the grantor offered to sell this property covered by the disputed deed, amounted to less than the $11,000 which Helen enjoyed outright in 1931.
These circumstances, together with Helen’s other statements in her letters that he (her father) was going “to give back to me” the “Martin Farm,” indicate unequivocally that she surrendered the recorded deed with the intention and understanding that the title be in her father. If she did not part with the deed with that intention, her reference to being “given back” the “Martin Farm” was unnecessary and meaningless. Her subsequent dissatisfaction with her eventual division, as indicated in her letters to her sisters, apparently because of the change in land values since the 1930’s, cannot affect her previous surrender of the deed to her father with the intention that title be revested.
Nor is our conclusion affected by the discredited testimony of Logan Holland respecting the improper taking and retention of the deed by the grantor. On at least ten different occasions Holland testified that John Richards asked to see “the deed,” but upon being asked how he knew which deed the grantor wished to see, since some three deeds had been given by 1935 when Holland claimed the request was made, Holland changed his testimony and stated that the grantor asked to see “the deeds.” At different times he testified that he handed the grantor one deed, then two, and even three deeds. His testimony that Helen was not present when the deed was given back is contradicted by her letters. His statement that the $11,000 was a gift to him by his father-in-law is without conviction, particularly in view of his admission that he at no time expressed any gratitude for the gift, and that in 1948 he sent checks to the defendants for their proportionate share of the $11,000, as did Helen on another occasion. It is not startling, then, that the master did not give much credence to his testimony.
The majority opinion, however, does not refer to any of the foregoing evidence relating to the revesting of title in the grantor, but merely accepts plaintiff’s argument that her remainder interest under the original deed could hot be divested by her mother’s action. That argument was designed to avoid the legal consequences of Helen’s revesting of her fee interest in the grantor, and, as shown herein, plaintiff’s interpretation of the limitation in the original deed is without merit.
The decree entered by the chancellor pursuant to the findings of the master is overwhelmingly supported by the evidence.
Mr. ChiEE Justice Klingbiee concurs in the foregoing dissenting opinion.