
    Gardner et al. v. Kern.
    
      Descent and distribution — Estates by purchase — Deed from father to son reciting valuable consideration — Section 8574, General Code — Fee passes upon son’s death, intestate and without issue — Descent unchanged by simultaneously executing will and deeds distributing estate — Presumption that recital of consideration changed title through deed of purchase.
    
    1. Where a father executes a deed to his son, containing recitals of a valuable consideration received from the grantee, such deed conveys title by way of purchase, and, upon the grantee’s death, intestate and childless, the estate descends in fee, and vests in his relict under the provisions of Section 8574, General Code.
    2. On the same day a father, contemplating the distribution of his real estate, executed three instruments; two separate deeds to his son and daughter, respectively, each reciting the receipt of a valuable consideration from the grantee, and also a will devising another tract of land to his wife, and still another to children of a deceased daughter. Proof merely of the execution of such contemporaneous instruments does not convert the deed to the son into one of gift, thereby changing the course of descent.
    3. Although the execution of such contemporaneous documents may tend to prove that the grantor contemplated only the distribution of his property, that fact alone does not furnish clear and convincing proof of a mistake or mistaken intention on the part of the grantor. He had the right to impart to his deed the descendible quality of the title he was conveying; and, when he employed therein the recital, of a valuable consideration, it will be presumed that he used the recital with the intention of conveying title to his son through the medium of a deed of purchase.
    (No. 19834
    Decided December 21, 1926.)
    Error to the Court of Appeals of Sandusky county.
    On January 10, 1889, one George Kern was seized of four separate tracts of real estate. At that time there were living his wife, Harriet; a daughter, Harriet A. Gardner, the plaintiff in error; a son, William H. Kern; and six grandchildren, the children of Phebe, a deceased daughter. On the same day, being January 10, 1889, George Kern executed three separate documents; (1) a deed for one of the tracts to his daughter Harriet for a recited consideration of $8,000; (2) a deed for a second tract to his son, William H. Kern, for a recited consideration of $9,000; and (3) a will devising his personalty and a third tract to his wife, Harriet, and also devising a brick building to his six grandchildren. This will contains the following item:
    “Fourth: Whereas I have at this date conveyed to my son William H. Kern and to my daughter Mrs. Hattie Alice Gardner each a tract of land as their full and fair share of my property and estate I do not therefore make to them or either of them any devise or bequest whatever.”
    The will also contained the following clause: “Memorandum: The property herein above devised to my children, I had first duly appraised, to the end that I might make a just and fair distribution thereof. ’ ’
    George Kern predeceased William, whose death occurred in 1923.
    The property concerned in this suit is a tract of 80 acres deeded to the son, William H. Kern, who died intestate and childless. The latter’s wife, Lottie Kern, the defendant in error, instituted an action in the court of common pleas seeking to quiet the title to this tract, claiming that it had been acquired by her husband by deed of purchase, and that the property passed to her as his relict under Section 8574, General Code.
    The plaintiffs in error claim that the title came to the son, William H. Kern, not by purchase, but as a deed of gift from his father, and, there being ho children, that Lottie took only a life estate, under the provisions of Section 8573, General Code.
    In the trial court the defendants, plaintiffs in error here, while claiming the deed to the son from the father to be one of gift, filed a cross-petition asking a reformation of that deed, alleging therein that the deed to William H. Kern was based upon no consideration, and that the actual consideration was not the sum of $9,000, named in the deed, but consisted of love and affection only.
    
      The trial court rendered judgment for the plaintiff, Lottie Kern, and the cause was appealed to the Court of Appeals. On the trial in the latter court, the plaintiff, Lottie, offered in evidence the deed of George Kern to his son William H. Kern and rested. That deed purported to be a conveyance of the tract by George Kern to his son, William H., “for the consideration of nine thousand dollars, ($9,000.00), received to my full satisfaction of William H. Kern, ’ ’ etc.
    The defendants below then offered the deed of George Kern to his daughter Harriet and his will, aforesaid. They also offered a written appraisal dated. December 28, 1888. This appraisal purports to have been signed by three individuals appraising the cash value of the tract deeded to William H. Kern at $9,000; of the tract deeded to the daughter Harriet at $8,000; and of the brick building devised to the six grandchildren at $5,000. At this stage the plaintiff objected to the introduction in evidence of the documents offered by the defendants. The Court of Appeals permitted their admission as stated in the journal entry, not for the purpose of supporting the claim of the defendants that the deed to William H. Kern should be construed as a deed of gift, rather than as one of purchase, but in support of their claim for reformation of the deed on the ground of mutual mistake.
    On the record thus presented the Court of Appeals refused the reformation of the deed executed to William H. Kern, the son, and ordered that the possession and title of Lottie Kern to the property be quieted as against the plaintiffs in error. It is from this decree that error is prosecuted to this court.
    
      Messrs. Miller, Brady, Yager & Leidy, for plaintiffs in error.
    
      Messrs. Parkhurst & Vickery, for defendant in error.
   Jones, J.

The deed of George Kern to his son, William H. Kern, contained a recital that the grant was made “for the consideration of nine thousand dollars ($9,000.00), received to my full satisfaction of William H. Kern, the grantee,” etc.

The son having died intestate and without issue, his widow brought this suit claiming title in fee as the relict of the intestate by virtue of Section 8574, General Code. If the property came to her husband by deed of purchase, Lottie Kern’s title in fee must be sustained; if it came by deed of gift, she has merely a life estate, under the provisions of Section 8573, General Code. The plaintiffs in error are remaindermen, who claim that the aforesaid deed was, in fact, a deed of gift, and that the fee is vested in them, subject to the life estate of the widow.

It is useless to pursue the distinguishing characteristics of an ancestor’s deed, whether it be one of gift or purchase, for it has been repeatedly decided by this court that, for the purpose of descent and distribution, when such deed contains recital of a valuable consideration received from the grantee, it is to be construed as a deed of purchase. Patterson v. Lamson, 45 Ohio St., 77, 12 N. E., 531; Groves v. Groves, 65 Ohio St., 442, 62 N. E., 1044; Thiessen v. Moore, 105 Ohio St., 401, 137 N. E., 906.

These eases are authority also for the well-known rule that the character of the consideration as expressed in the deed may not be challenged by parol evidence so as to change the line of descent. While for some purposes the consideration named in a deed may be open to explanation by parol proof, this class of evidence is incompetent, where the effect of such proof is to vary the operative words of the deed, or, as in this case, change the line of descent. Plaintiffs in error recognize this well-established rule, but seek to avoid it in the present case by insisting that they are not attempting to change the character of the consideration by parol proof, but by documentary evidence executed by the original ancestor contemporaneously with the deed, showing a single transaction evidencing an intention upon the part of G-eorge Kern to make a deed of gift to his son, William H. Kern.

After Lottie Kern had introduced the deed to her husband, reciting a valuable consideration, she rested her case. Under the authorities above cited, at that stage of the proceeding her husband, William H. Kern, had title to the property by deed of purchase. By their cross-petition in the trial court plaintiffs in error alleged that this deed was a gift from George Kern to his son, and was so intended; that the consideration therein named did not express the intention of the parties, and was placed in the deed by mutual mistake. They therefore asked that the deed should be reformed to conform to the true intent of the parties, and that it should he held to have been made for the consideration of love and affection, and none other. It was in support of this allegation in the cross-petition that evidence of the aforesaid contemporaneous documents was offered at the trial. The most that can be said of this evidence is that on January 10, 1889, by these two deeds and will, George Kern, who was then about 67 years of age, contemplated the distribution of his property among his wife, two children, and the six grandchildren. The tract in question he deeded to his son, William, by deed reciting a valuable consideration. Another tract he deeded to his daughter, which deed also recited a valuable consideration. On the same day he executed his will, giving to his wife another tract, and also giving a brick building to his six grandchildren. This will contained a provision as follows:

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

The deed having express operative words, impressing the title as coming to the grantee by way of purchase, clear and convincing evidence is required to convert it into a deed of gift. Or, to apply the rule of evidence to the instant case, the proof should clearly and convincingly show that the actual recital of valuable consideration in the deed was placed therein by a mistake of the grantor. Miller v. Stokely, 5 Ohio St., 194; Potter v. Potter, Ex’x., 27 Ohio St., 84; Stewart v. Gordon, 60 Ohio St., 170, 53 N. E., 797. In the Potter case, supra, Judge Day, speaking for the court, said:

“When the reformation of a written instrument is sought on the ground of mistake, the presumption is so strongly in favor of the instrument, that the alleged mistake must be clearly made out by proofs entirely satisfactory, and nothing short of a clear and convincing state of fact, showing the mistake, will warrant the court to interfere with and reform the instrument.”

All that these contemporaneous documents disclose is that George Kern, on January 10, 1889, was engaged in making a distribution of his property by the employment of the two deeds and will in question. But they do not tend to prove mistake on the part of George Kern in his insertion of valuable consideration in his deed to his son, William, or any mistake in his purpose of giving to the latter an estate by purchase. The case of Patterson v. Lamson, supra, had been decided by this court nearly two years before these contemporaneous documents were made. Since George Kern, in the execution of his deed to his son, William, employed the use of terms expressing a valuable consideration, it may reasonably be presumed that those who were engaged in its execution knew of the decision of this court heretofore alluded to, casting upon the grantee a title by purchase, and that the grantor used such recital to accomplish that purpose. In Patterson v. Lamson, supra, it was also argued that the parties to that deed did not intend “to determine the course of descent the property should follow; that they were not negotiating with a view to any such contingency;” that the fact that a valuable consideration would determine the line of descent never entered the heads of the parties to the transfer. In response to this argument the learned judge said, on page 88:

“In this we are left entirely to conjecture. How may we know that this form of transfer of the title to Lillian was not deliberately adopted by the alleged ancestor, Lamson?”

There is much more reason and plausibility for the adoption of this query in the instant case, for the reason stated, to wit, that this court had previously decided that the recital of a valuable consideration in a deed of this character stamped it as a deed of purchase. So far as we know, George Kern may have intended to use this method for the purpose of conveying title to his son, William, not as a gift, but by way of purchase. There is nothing in the evidence introduced disclosing any contrary intent. While it may disclose that no valuable consideration had been paid, that fact alone did not furnish convincing proof that George Kern intended to convey the tract for love and affection, or that he made a mistake in reciting a valuable consideration in his deed to his son William. Such was evidently the opinion of the Court of Appeals, for, while it admitted these documents, because of their contemporaneous character, it' concluded, as we do, that this evidence did not clearly prove a mistaken intention on the part of the grantor. The latter had the right to impart to his deed the descendible quality of the title he was conveying; and, when he employed therein the recital of a valuable consideration, it will be presumed that he used such a recital with the express intention of conveying title to his son through the medium of a deed of purchase. There is nothing in this record clearly evincing an intention on his part to do otherwise in view of the recital in his deed.

Judgment affirmed.

Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.

Marshall, C. J., dissents.  