{
  "id": 1611975,
  "name": "Smith v. Smith",
  "name_abbreviation": "Smith v. Smith",
  "decision_date": "1951-01-22",
  "docket_number": "4-9354",
  "first_page": "228",
  "last_page": "231",
  "citations": [
    {
      "type": "official",
      "cite": "218 Ark. 228"
    },
    {
      "type": "parallel",
      "cite": "235 S.W.2d 886"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
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    {
      "cite": "60 S. W. 418",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
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    {
      "cite": "68 Ark. 544",
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    {
      "cite": "216 S. W. 1052",
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      "reporter": "S.W.",
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    {
      "cite": "141 Ark. 93",
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      "reporter": "Ark.",
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        1592905
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      "cite": "36 S. W. 2d 402",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "opinion_index": 0
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    {
      "cite": "183 Ark. 397",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1441828
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    {
      "cite": "51 S. W. 2d 524",
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      "opinion_index": 0
    },
    {
      "cite": "185 Ark. 1069",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1435184
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  "last_updated": "2023-07-14T15:20:49.049805+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Smith v. Smith."
    ],
    "opinions": [
      {
        "text": "Holt, J.\nD. W. Smith died intestate March 18,1948. He left surviving six adult children, three of whom are appellees and the other three the appellants. Essential facts are not in dispute. Appellees lived in the farm home with their father, whose wife had predeceased him.\nFebruary 24, 1948, the father, D. W. Smith, executed and delivered to appellees an instrument, in form a warranty deed, to his farm home, the land involved here, (appellants were not mentioned in the instrument) in consideration of appellees agreeing to care for him so long as he might live and to pay his debts and funeral expenses.\nThe land conveyed (approximately 135 acres) was in four calls, two were definite in description and two indefinite. The deed also contained this clause; \u201cI make this deed with, the express understanding that Pauline Burr Smith shall have no part herein either at this time or later. This deed does not become effective until my death.\u201d Pauline Burr Smith was the wife of appellee, Hugh Smith.\nIt is undisputed that appellees, in keeping with their agreement, cared for their father until his death and paid all his obligations and funeral expenses.\nAppellants brought the present suit March 16, 194-9. They alleged that the purported deed was void because the land was not properly and sufficiently described. \u201cThat said instrument was testamentary under the provision of the same and was not intended to pass the title at once, but provided: \u2018I make this deed with the express understanding that Pauline Burr Smith shall have no part herein either at this time or later. This deed does not become effective until my death.\u2019 That at the time of the execution of said instrument the said Pauline Burr (Brewer) Smith was the wife of defendant, Hugh Smith, and was intended to disinherit her from ever sharing in the property of the deceased and was therefore testamentary, and was and thereafter did become a will. Plaintiffs also say that there was no intention to pass the title immediately to the defendants herein, and it was the intention of said D. W. Smith for title not to pass until after the death of the said grantor; and said instrument not having been witnessed as required by law, the same is void, and the defendants herein have no title except as heirs of D. W. Smith, deceased, in said lands.\u201d\nAppellees interposed a general denial and in a cross-complaint, conceded that parts of the description of the land were inaccurate and asked for reformation to show proper description in accordance with the intention of the parties.\nThe court determined all issues in favor of appellees. The decree recited: \u2018 \u2018 The trial court is of the opinion that the instrument is a deed and that the provision, \u2018 The deed does not become effective until my death, \u2019 amounts only to a reservation in the grantor of a life estate. . . . Since it is admitted that it was the intention of the father to convey all the lands herein involved, this court is of the opinion that mistake or inaccuracy of description would not defeat that intent. The contract between him and the defendants provided for the conveyance of all of the farm.\u201d Reformation of the description in the deed was ordered as prayed, title to the land involved was quieted and confirmed in appellees and appellants\u2019 complaint dismissed for want of equity.\nThe decree was correct. The instrument in question was, in effect, a valid warranty deed and not testamentary in character. It was delivered to grantees, appellees, by the grantor during his lifetime and the provision \u201cthis deed does not become effective until my death\u201d amounted to a reservation in the grantor, D. W. Smith, of a lifetime estate only. The provision that Pauline Burr Smith, wife of appellee, Hugh Smith, \u2018 \u2018 shall have no part herein either at this time or later, \u2019 \u2019 must be treated as surplusage, and does not change the effect of the instrument here, which contains every essential element necessary to convey to appellees a fee simple title, subject only to the life estate of their father (grantor).\nThe applicable rule is stated in 26 C. J.S., \u00a7 4.5, p. 246: \u201cA deed containing a provision that it is not to take effect until the grantor\u2019s death is actually delivered to the grantee during the lifetime of the grantor, it will be sustained as a present grant of a future interest. \u2019 \u2019 The text-writer cites in support of the text Owen v. Owen, 185 Ark. 1069, 51 S. W. 2d 524. We there said: \u201cThe deed to the home place also contains a covenant that the father is to remain in possession of that during his life, and that the deed should not become operative until his death. This Avas a valid covenant. Reynolds v. Balding, 183 Ark. 397, 36 S. W. 2d 402, \u2019 \u2019 and in Sutton v. Sutton, 141 Ark. 93, 216 S. W. 1052, Ave held (Headnote 2):\n\u201cAn instrument, in the form of a Avarranty deed, and acknowledged as such, and so headed, conveying land to a grantee, \u2018 and unto his heirs and assigns forever, \u2019 but Avith an habendum clause making the instrument inoperative until the grantor\u2019s death, is a deed and not a Avill; the limitation does not defeat the passing of title, hut does reserve possession to the grantor during his lifetime.\u201d\nThe court did not err, in the circumstances, in reforming certain misdescriptions in the deed. These mistakes were mutual. It was undisputed that the grantor, D. W. Smith, intended to convey his farm, which was all the real estate he owned at the time, for the consideration that appellees, grantees, would care for him during his life and pay his debts and funeral expenses.' There appears to be no doubt as to the land the grantor intended to convey, and appellees (grantees) intended to receive. See Walker v. David, 68 Ark. 544, 60 S. W. 418.\nAs has been pointed out, appellees faithfully performed all of the conditions imposed and were entitled to reformation as prayed.\nAccordingly, the decree is affirmed.",
        "type": "majority",
        "author": "Holt, J."
      }
    ],
    "attorneys": [
      "Opie Rogers and W. F. Reeves, for \u2018appellant.",
      "N. J. Henley, for appellee."
    ],
    "corrections": "",
    "head_matter": "Smith v. Smith.\n4-9354\n235 S. W. 2d 886\nOpinion delivered January 22, 1951.\nOpie Rogers and W. F. Reeves, for \u2018appellant.\nN. J. Henley, for appellee."
  },
  "file_name": "0228-01",
  "first_page_order": 252,
  "last_page_order": 255
}