
    Kern v. Gardner et al.
    
      Descent and distribution — Ancestral and nonancestral property —Deed from father to son — Evidence admissible to show consideration paid, but not, to affect title — Named consideration criterion in determining title by gift or purchase — Title conveyed and transferred by delivery of deed — Transfer of title by will not effective until testator’s death — Father’s deed to son, reciting consideration, transferred estate by purchase — Fee in widow upon son’s death, intestate and childless — Section 8574, General Code.
    
    1. In action to quiet title, where plaintiff claimed as heir of grantee of deed from father to son, evidence was admissible to show whether consideration named in deed had been paid, but not for purpose of affecting title.
    2. Consideration named in a deed is one of criterions by which it is determined whether it is a deed of gift or of purchase.
    3. The title to real estate is conveyed and transferred by delivery of a deed.
    4. The transfer of title to property by will does not become effective until death of testator.
    5. Deed from father to son delivered while father was living on recited consideration of $9,000 transferred property to son by deed of purchase, and hence when son died intestate and childless the estate vested in son’s widow in fee, under Section 8574, General Code; Section 8573, providing for passing of estates coming to intestates by inheritance, not being applicable.
    (Decided June 26, 1925.)
    
      Appeal: Court of Appeals for Sandusky county.
    
      Messrs. ParTchurst & Vickery, for plaintiff.
    
      Messrs. Miller <& Brady, for defendants.
   Young, J.

This action is one to quiet title and was begun in the court of common pleas of San-dusky county by the plaintiff, Lottie Kern, to whose petition an answer and cross-petition was filed by the defendants named in the pleadings. Upon a hearing the court below adjudged and decreed in Lottie Kern the title and possession to all and singular the premises described in the petition, quieted the title to the same against the defendants, and dismissed their cross-petition. Thereupon the case was appealed to this court, and the principal contention raised is whether the property in question came to the husband of plaintiff by deed of gift as ancestral property, or by purchase.

Briefly, the facts appear to be that on January 10, 1889, George Kern, then the owner of the property in question, for a recited consideration of $9,000, deeded it to his only son, William H. Kern. On the same day other property was disposed of by deed, and a will executed in which he made disposition of the remainder of his estate. The property conveyed by the deed to William H. Kern was also mentioned in the will of the said George Kern, who lived for many years after the execution and delivery of said deed and the making of the will. November 10, 1923, William H. Kern died, intestate, leaving the plaintiff as his widow, but no children or their legal representatives.

It is contended by the defendants that the property deeded to the son, William H. Kern, the deceased husband of the plaintiff, is ancestral property, and that, therefore, the wife has but a life estate therein; while the plaintiff contends that, the property being obtained by a deed reciting a valuable consideration, she obtains a fee-simple estate. If the contention of the defendants be correct, then the property passed to her under Section 8573 of the General Code, which provides:

“When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise or deed of gift from an ancestor, * * * if there are no children or their legal representatives living, the estate' shall pass to and vest in the husband or wife, relict of such intestate, during his or her natural life.”

Should the contention of plaintiff be sustained, then the estate passed as provided in Section 8574 of the General Code, and her title is a fee simple:

“If the estate came not by descent, devise, or deed of gift, * * * if there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.”

It is also contended by defendants that in cases of this kind the consideration of the deed is open to explanation, and that extraneous or documentary evidence is permissible to permit the facts to be shown. We cannot accede to this, except the admission of such evidence as may be admitted to show whether the consideration had been paid; but not for the purpose of affecting the title. The consideration named in a deed is one of the criterions by which is determined whether it is a deed of gift or one of purchase. We cite the case of Shehy v. Cunningham, 81 Ohio St., 289, 90 N. E., 805, 25 L. R. A. (N. S.), 1194. In support of this we call attention to the case of Thiessen v. Moore, 105 Ohio St., 401, quoting from the opinion at pages 419 and 420, 137 N. E., 906, 910:

“In determining, in such case, whether an instrument for the conveyance of land is a deed of gift or a deed of purchase, its recitals of the payment and receipt of the consideration are material; and a recital in such deed that the conveyance by the named grantor to the grantee is made in consideration of a specified sum of money received by such grantor from the grantee, so far concerns the operation and effect of the deed as that it is not competent to show, by parol proof, that such instrument is, in fact, a deed of gift from a person not named in it, and that the named consideration was in fact paid by him.”

The Thiessen case quotes from the syllabus of Groves v. Groves, 65 Ohio St., 442, 62 N. E., 1044, as follows:

“Where the consideration expressed in a deed of conveyance is a valuable one, the title comes by purchase, and it is not competent to show by parol that in fact the title came by deed of gift, and thereby change the line of descent.”

It has also been held that the “consideration paid for a conveyance of real estate determines its course of descent, and the recital in a deed of conveyance of the payment of the consideration is ‘operative words’ within the meaning and intent of the declaration of this court in the case of Shehy v. Cunningham, 81 Ohio St., 289 [90 N. E., 805, 25 L. R. A. (N. S.), 1194], and for the purpose of determining the course of descent is conclusive. ’ ’

The first paragraph of the syllabus in the case of Hasse v. Morison, 110 Ohio St., 153, 143 N. E., 551, reads:

“Where ancestral real estate is conveyed by quitclaim deed, based upon a valuable consideration, and afterwards the same real estate is reconveyed to the person who first conveyed it, and the deed of reconveyance recites a valuable consideration, the title thereby conveyed becomes one of purchase, and the same loses its ancestral quality.”

The law is well settled that the title to real estate is conveyed and transferred by delivery of deed, while a will is ambulatory in character, the provisions of which may be changed at any time, either in part or as to its entirety, or may even be added to by codicil, but it does not become effective until the death of the testator.

The deed in question in the instant case was delivered on January 10, 1889, at a time when the testator was still living, and, while the memorandum attached to the will used the word “devise,” the fourth item of the will proper contains these words:

“Whereas I have at this date conveyed to my son William H. Kern and * * * each a tract of land as their full and fair share of my property and estate, I do not therefore make to them or any of them any devise or bequest whatever.”

Having considered all the questions presented to us, we are therefore of the opinion that it was the intent of the father, George Kern, to transfer this property to his son by deed of purchase, and that the fixing of a valuable consideration price therein, under the authorities cited, determines the status of the property as having passed by purchase. The decree of this court is accordingly for plaintiff.

Decree for plaintiff.

Richards and Williams, JJ., concur.  