Barr v. Ferris

In this action the plaintiff sought to have it adjudged that he is the owner and entitled to possession of all property held by his wife at the time of her death.

The plaintiff and Virginia K. Barr were married in 1905 and lived in Pittsburgh, Pa., until September, 1929, when they separated. They then agreed upon a property settlement and Mrs. Barr signed and acknowledged a writing which is dated September 24, 1929. In this instrument, parts of which are in the usual language of a quitclaim deed, she acknowledges receipt of $1,000 and certain bonds with a par value of $35,000, in full satisfaction and payment of all sums due or to become due to her from the plaintiff or his estate, subject, however, to the further payment to her of $15,000 on or before January 1, 1930, “receipt whereof is to be acknowledged on a separate paper, but which is to be made part of this release.” The instrument then provides that she releases, quitclaims and discharges the plaintiff from any further payments to her and that she releases and quitclaims any and all dower rights which she has or may have in his property or in his estate. Following that is this provision: “Should I die before G. M. Barr all property in my possession, real, personal and mixed, shall be returned to G. M. Barr.”

Mrs. Barr signed and acknowledged this instrument on September 27, 1929, after which it was delivered to the plaintiff. Shortly thereafter Mrs. Barr came to California and the cash and bonds listed in the instrument were sent to her here by a trust company, with whom they had been deposited by Mr. Barr for that purpose. Early in December, 1929, the plaintiff sent Mrs. Barr the $15,000 which remained to be paid, with a receipt therefor and a carbon copy of that receipt. After signing these Mrs. Barr placed one of them in her lock box and sent the other to the plaintiff. Mrs. Barr remained in California until she died in 1937, leaving a will in which all of her property was left to persons other than the plaintiff and in which the defendants were named as executors and residuary legatees.

Among other things, the court found that at the time of their separation the plaintiff and his wife entered into an agreement respecting their property rights, which agreement was evidenced by and embodied in the instrument dated

Appellants’ first question is thus stated by them: “Is plaintiff’s evidence not so incredible and improbable as to deny belief?” It is contended that the portion of the in■strument which we have italicized was not contained therein at the time the instrument was signed and acknowledged by Mrs. Barr on September 27, 1929. However, no evidence is cited to support this contention other than to point out that the typist who typed this document was at the time the respondent’s secretary, that the notary who took Mrs. Barr’s acknowledgment was an employee of the bank with which the respondent did business and was well acquainted with him, and to refer to certain evidence to the effect that the respondent altered the duplicate receipt for $15,000 which Mrs. Barr sent to him in December, 1929. It is argued that these circumstances constitute “a bewildering array of suspicions as to the genuineness of plaintiff’s claim. ’ ’

Beyond question the evidence supports the court’s findings to the effect that this instrument contained the clause which we have italicized at the time it was signed and acknowledged by Mrs. Barr. The typist testified that the instrument, with the exception of the clause in question, was dictated to her by the respondent and that she then typed the same; that several days later Mrs. Barr came in and she ac

Appellants’ next contention is that the evidence shows that the respondent altered the copy of the receipt for $15,-000 which Mrs. Barr later sent to him, and that this was a material alteration which voided any rights the respondent may have had under the original agreement. After signing both copies of this receipt Mrs. Barr sent one copy to the respondent and placed the other in her safety deposit box where it was found after her death. It is admitted that in both copies the blanks of a printed form were filled out in the handwriting of the respondent to the extent of acknowledging the receipt of $15,000. While both copies were signed by Mrs. Barr, the one retained by her had upon it, in her handwriting, these additional words: ‘1 $24,900 being the personal property of V. K. Barr prior to September 24, 1929.” The other copy, which was sent to the respondent, is very much blurred and contains, in the handwriting of the respondent, the following words: “filed herewith and made part of the original receipt making total of $51,000 bonds and cash—all of which are and are to remain the property of C. M. Barr.” There is evidence that at the time Mrs.

While the respondent’s explanation of the blurred condition of his copy of the receipt for $15,000 is unsatisfactory in the extreme, he testified that he added nothing to that copy which was not thereon when it was returned to him by Mrs. Barr. In any event, the most that appears is that after the respondent prepared this receipt in duplicate his wife added a statement to the effect that a portion of the money and property delivered to her had been her personal property, and that, thereafter, the respondent changed his copy by erasing what she had written and inserting a statement to the effect that the $51,000 bonds and cash which he had turned over to her “are and are to remain the property of C. M. Barr”. He did not alter any portion of the receipt which was required or contemplated by the original agreement dated September 24, 1929. Nothing that either of these parties could write upon the respective copies of the receipt could, without the consent of the other, alter or change the provisions of the original contract, the terms of which had then been fully complied with by the respondent. No contention is made that the $15,000 was not paid by the respondent and the court correctly held that this receipt did not modify or form any part of the original agreement except as it evidenced the final payment of $15,000 which was required thereby. Not only was any possible alteration of this copy of the receipt not a material alteration of the original

It is next urged that there was no mutual consent between the respondent and Mrs. Barr with respect to the addition of the clause which we have italicized to the original agreement, and that there was no consideration whatever for that portion of that agreement. The addition of the clause in question was not an amendment to the original agreement, as contended by appellants, but the same was added to the instrument before it was executed. While there is no evidence before us of the preliminary negotiations of these parties the only reasonable inference is that they had arrived at some sort of an agreement, with respect to a property settlement, before the respondent called up the notary and arranged for the taking of Mrs. Barr’s acknowledgment. There is no evidence that the matter which Mrs. Barr asked to have inserted in the instrument before she signed it was not a provision upon which the parties had theretofore agreed. However that may be, Mrs. Barr asked to have this clause inserted in the instrument before she would sign it, and referred to it as a “correction”. The instrument was immediately delivered to the respondent, his attention was called to the insertion, and he retained the writing and acted upon it. Thereafter, bonds and cash to the amount of $36,-000 which respondent had placed with a trust company for that purpose, were forwarded to Mrs. Barr in California and a few months later, in further and complete compliance with his duty under the instrument, the respondent paid Mrs. Barr the remaining $15,000. A mutual consent sufficiently appears and the court’s findings to the effect that there was a good consideration for the execution of the agreement and for each and every portion thereof, and that the clause in question was added with the knowledge and consent of both parties, are sustained by the evidence.

Appellants ’ final contention is that these words which were thus added to this instrument are not sufficient to constitute a deed, that they constitute only a promise to make a

Some suggestion is made in appellants’ reply brief that the respondent might have brought a different form of action, but no argument is presented which attacks the form of the action as actually brought. The agreement, as made, contemplated that Mrs. Barr might convert some of the property turned over to her into real estate and the agreement provides that in case she died first all property in her possession, real, personal and mixed, should be returned to the respondent. As a matter of fact, as shown by the judgment,

For the reasons given the judgment is affirmed.

Marks, J., and Griffin, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 16, 1941.