This is an appeal from a judgment of the district court on appeal from a decree of the probate court of Bingham county in a proceeding wherein appellant here sought specific performance of a contract executed by Willard Fackrell, now deceased. Trial in the district court resulted in a judgment dismissing the proceeding without prejudice to the right of petitioner to sue for specific performance of the contract within the time allowed by law. The appeal is by petitioner, from the judgment. *Page 517
I. C. A., sec. 15-1001, is as follows:
"When a person who is bound by contract in writing to convey any real estate, dies before making the conveyance, where such decedent, if living, might be compelled to make such conveyance, the probate court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto."
Section 15-1002 provides for giving notice of hearing on presentation of a petition by a party claiming to be entitled to such conveyance, setting forth the facts upon which the claim is predicated. Section 15-1003 provides that all persons interested in the estate may appear and contest the petition, by filing objections in writing, and that the court may examine, on oath, the petitioner and all who may be produced before him for that purpose. Section 15-1004 is as follows:
"If, after a full hearing upon the petition and objections, and examination of the facts and circumstances of the claim, the court is satisfied that the petitioner is entitled to a conveyance of the real estate described in the petition, a decree authorizing and directing the executor or administrator to execute a conveyance thereof to the petitioner must be made, entered on the minutes of the court, and recorded."
Section 15-1005 requires the executor or administrator to execute the conveyance according to the directions of the decree, and sec. 15-1006 is as follows:
"If, upon hearing in the probate court, as hereinbefore provided, the right of the petitioner to have a specific performance of the contract is found to be doubtful, the court must dismiss the petition without prejudice to the rights of the petitioner, who may, at any time within six months thereafter, proceed, in the district court, to enforce a specific performance thereof."
The probate court, after hearing, entered a decree directing that a deed be executed by the administrator conveying a two-thirds interest in certain property to petitioner. *Page 518 Respondents herein appealed to the district court from the decree and appellant herein moved to dismiss the appeal, which was overruled and the ruling is assigned as error. In support of this assignment appellant asserts that sees. 15-1004 and 15-1006 do not provide for an appeal by a petitioner and, by analogy, no appeal should be allowed by the objectors unless for an abuse of discretion of the probate court.
The contention is without merit. Where, as in this case, the probate court decrees specific performance of a contract, one objecting to the petition has no remedy except by appeal, and his right to do so is granted by I. C. A., sec. 11-401, which provides:
"An appeal may be taken to the district court of the county from a judgment, or order of the probate court in probate matters: . . . .
"5. Against or in favor of directing the . . . . conveyance of real property." (Estate of Corwin, 61 Cal. 160; In rePotter's Estate, 141 Cal. 424, 75 P. 850.)
December 12, 1929, Willard Fackrell died intestate leaving surviving three brothers and three sisters, among them being the parties to this appeal. Appellant was a trained nurse before her marriage and, in 1917, took care of her brother, Willard Fackrell, for a period of about seven and a half weeks during an attack of typhoid fever. These services, which she rendered, and payment by her of his doctor's bills, which she made, were understood and intended by her to be gratuitous. About April 22, 1922, Fackrell delivered to appellant a sealed envelop, and stated to her, in substance: "Here is a contract conveying to you two-thirds of the building at Blackfoot for taking care of me when I was sick." He also told her one Davis, who was his agent at Blackfoot, had a copy of the contract in case the one he delivered to her should be destroyed. Appellant accepted the envelop and its contents and kept them in her possession until after her brother's death.
After Fackrell's death, while his brothers and sisters and Davis were looking through his papers, appellant, on *Page 519 being asked by one of her brothers if deceased had left any other papers than those they were examining, produced the envelop, which had not been opened since it was delivered to her, and it was thereupon opened and found to contain an instrument on a printed form entitled "Contract of Sale." It was therein recited:
"THIS AGREEMENT, entered into between Willard Fackrell of Blackfoot, first party, and Annie Fackrell of __________, second party, WITNESSETH:
"That the said first party agrees to sell and the said second party agrees to purchase on the terms herein set forth, the following described tract of land, situate in the County of Bingham, State of Idaho, to-wit: an Undivided 2/3 Interest to the following Described Lots. The West 24 feet and 6 Inches off from the Lots One to Four Inclusive The West 24 Feet and six Inches off the North 10 Feet, of Lot 5 In Block 31 Danielsons Addition to Blackfoot, Bingham County Idaho.
"The said second party agrees to pay to the said first party at Blackfoot for said land and the water right appurtenant thereto the sum of $2000.00 in follows: $2000.00 Cash and Hospital Fees fully Paid."
Blank spaces in the contract for instalments of payments of the purchase price were not filled in. Provisions were made for interest on deferred payments, if not paid when due; that second party pay the taxes and assessments on the property for 1918 and subsequently, and that first party convey the property to second party by good and sufficient warranty deed when the payments were made. Then followed covenants and agreements, usually found in printed forms for such contracts, with respect to time being of the essence; right of first party to declare a forfeiture for failure of second party to conform to the contract; to retain payments theretofore made as rental and liquidated damages, and that second party would be entitled to possession so long as the terms of the contract were complied with. The date of execution was in the document stated to be May 1, 1918; the instrument was signed with the *Page 520 signature of Willard Fackrell and witnessed by J.H. McDonald. On the back of the document appears the following endorsement, "$2000.00 Paid this first day of May 1918 Which Pays This Contract up in Full." This instrument was introduced in evidence, as was a duplicate thereof, including the endorsement, produced by Davis, with whom Fackrell left it for safekeeping.
Appellant had not read the contract prior to her brother's death; did not know the contents thereof and had not agreed to the terms nor paid any part of the purchase price therein named. After delivering the sealed envelop, containing the document, to appellant, her brother caused the rentals arising from the property, after payment of expenses incident thereto, to be placed in a bank in a joint account of himself and appellant, and this joint account was maintained and the net returns from the property were placed therein until his death. Appellant drew no checks against the joint account, nor did she, personally, receive any of the money from the rents during her brother's lifetime, although she testified she could have done so.
The petition to the probate court appears to have been prepared on the theory that the document here under consideration was an executory contract for the sale by Fackrell, and purchase by appellant, of a two-thirds interest in the property therein described; that petitioner had kept and performed the covenants and agreements therein contained to be by her kept and performed so as to entitle her to a deed conveying said interest in the property to her during the lifetime of Fackrell and was, therefore, entitled to a conveyance from the administrator of his estate.
The evidence does not support the theory that a valid, executory contract existed between Fackrell and appellant, binding the former to sell, and the latter to buy, an interest in the property in question. There was no meeting of the minds and no agreement, on appellant's part, to purchase or pay for the property, nor does it appear there was any intention on Fackrell's part to sell *Page 521 it, or that she should pay for it. It is said in 58 C. J., 849:
"The remedy of specific performance presupposes the existence of a valid contract between the parties to the controversy, or between those through whom they claim, the contract being generally required to have the essentials of a contract valid and binding at law in order to be enforceable in equity. It must be a concluded contract; there must have been a clear mutual understanding and a positive assent on both sides as to the terms of the contract."
In order for appellant to be entitled to the relief sought the proof must show Fackrell was bound, by contract in writing, to convey two-thirds interest in the real estate in question to her and that it was such a contract that he, if living, might be compelled to make the conveyance.
The clear purpose of section 15-1001 is to give one who would be entitled to specific performance of a contract, evidenced by writing, to convey real estate, against a deceased person, if alive, a right to require conveyance of it from the executor or administrator of his estate. If the right to the conveyance is clear relief is to be granted by the probate court, if doubtful, recourse must be had to suit for specific performance in the district court.
If the record disclosed nothing but the execution and delivery of the document by Fackrell to appellant it would show no right in her to the relief sought and an affirmance of the judgment appealed from would follow, but as the record now stands, the proof shows a completed gift, inter vivos, evidenced by the writing, exhibit A, of two-thirds interest in the property by Fackrell to his sister, which constitutes an executed contract.
In addition to the facts heretofore stated, Fackrell, on January 23, 1918, and prior to the execution or delivery of the document to appellant, conveyed the property to Davis by instrument in form a warranty deed, but which was given to secure the payment of indebtedness due from the former to the latter. Davis retained title until May 5, *Page 522 1927, at which time, the debt having been paid, he deeded it back to Fackrell.
While legal title to the property stood in the name of Davis, as security for a debt, Fackrell, desiring to give two-thirds interest in it to his sister, delivered to her a sealed envelop containing the document hereinbefore discussed, with a statement to the effect that it was a contract conveying said interest to her for taking care of him when he was sick. She received the paper and kept it, understanding the interest in the property was a gift to her from her brother and she accepted and retained it as such. There is no suggestion of undue influence exercised on Fackrell to procure him to make the gift, nor that he was incompetent. It is our duty to give effect to his acts and to construe the writing executed by him, if possible, in such way as to carry out his purpose. He does not appear to have been learned in the law, and probably did not know, as lawyers do, that his deed to Davis was a mortgage. We are unable to put any other construction on his conduct in executing the instrument in which he recited he would convey a two-thirds interest in the property to his sister on payment of $2,000 and, on the same day, endorsing on it a statement that said sum had been paid in full and, after delivering it to her, opening a joint bank account and therein depositing, to her credit and his, the net proceeds of the property as they accrued, thereby, as nearly as it was possible to do under the circumstances, placing her in possession of the interest which he intended should be hers, than that his purpose was to make her the owner of an undivided two-thirds interest in the property in question.
It is said in Estate of Malone, 13 Phila. (Pa.) 313, quoting from Bond v. Bunting, 78 Pa. (28 P. F. Smith) 213:
" 'It is certainly the tendency of all modern authorities to maintain the general doctrine which may be stated as a formula, that whenever a party has the power to do a thing (statute provisions being out of the way), and means to do it, the instrument he employs shall be so construed as to give effect to his intention.' " *Page 523
Fackrell, having executed and delivered the document contained in the envelop; having stated his purpose in doing it and having carried out that purpose by creating the joint bank account and placing the net proceeds from the property therein, could not, had he changed his mind, (and he showed no disposition to do so) have revoked the gift.
The Supreme Judicial Court of Maine, in Barker v. Frye,75 Me. 29, said:
"The property (a bank deposit) having been previously conveyed to the plaintiff though by gift, that gift could not be revoked."
The court further said, quoting from 3 Parsons on Contracts, 6th ed., 360:
"If the contract is executed wholly, or, if not wholly, yet in a substantial degree, and there remains something to be done to complete the title, or otherwise render the enjoyment more beneficial to plaintiff, equity will require that thing to be done, although the promise was wholly voluntary."
Although the document delivered to appellant expressed a sale, the proof now before us shows it evidenced a gift.
The syllabus in Van Deusen v. Rowley, 9 N.Y. 358, is as follows:
"Where a father transfers to an adult son who has occasionally performed services for which no charge was made, a quantity of bank stock reciting in the transfer, that it is 'for value received,' the transaction is a gift and not a sale.
"Such a gift, if made while the donor has sufficient mental capacity to transact business with his own family, although not to transact business generally, if made fairly is valid."
The fourth section of the syllabus in Simpson v. League,109 Md. 286, 72 A. 1109, is as follows:
"There having been no fraud or imposition, but a person of sound mind having voluntarily made and completed a gift, it will not be set aside because of his changing his mind, or because his act appears absurd or improvident." *Page 524
The Georgia Supreme Court, in Vickers v. Vickers,133 Ga. 383, 65 S.E. 885, 24 L.R.A., N.S., 1043, said:
"Equity will not allow a donor to reclaim property, the title to which he has unconditionally placed in another, merely because he has had a quarrel with the donee." (See, also,Pickslay v. Starr, 149 N.Y. 432, 44 N.E. 163, 52 Am. St. 740, 32 L.R.A. 703; Mulfinger v. Mulfinger, 114 Md. 463,79 A. 1089.)
The Supreme Court of Michigan, in Reagan v. Murray, 176 Mich. 231,142 N.W. 545, 548, said:
"If deceased acted understandingly he had a right to dispose of his property as he saw fit, even though it might be inequitable.
"In Beadle v. Anderson, 158 Mich. 483, 123 N.W. 8, this court said: 'The fact that a division is not equal between children regarded apparently with equal affection is no sufficient reason to disturb a disposition of property so made, as has been many times declared.' "
It is said in 28 C. J. 621:
"On account of want of consideration, a gift does not come within the legal definition of a contract and while still unexecuted confers no rights upon the donee. Nevertheless, every perfected gift is an executed contract, founded on the consent of the parties; and where no rights of creditors intervene to affect its validity, such a transaction stands upon the same footing as contracts founded upon a valuable consideration."
The judgment appealed from is reversed and the cause is remanded to the district court with direction to give the parties an opportunity to offer further evidence as to whether or not Fackrell made a completed gift of the interest in the property to appellant. If no further evidence is offered on that point, or if that offered does not rebut the proof now in the record that such gift was made and accepted, the district court is directed to affirm the decree of the probate court.
Costs on appeal are awarded to appellant. *Page 525