Opinion
January 14, 1971
Appeal from an order of the Surrogate's Court of Columbia County, entered November 18, 1970, disapproving the final account of proceedings of the administratrix of the estate of Charles E. Kennedy, deceased, and sustaining objections numbers 1 and 2 to said accounts filed by Dorothy May, a person interested in said estate. In sustaining the objections to the final account of proceedings filed by Edna M. Hayes, as administratrix of the estate of Charles E. Kennedy, deceased, the court held that certain real property which the administratrix claimed was given to her by decedent prior to his death should be included as an asset of the estate, and that a claim of $500 made by the administratrix against the estate for moneys loaned by her to decedent during his lifetime should be disallowed. Decedent and Mrs. Hayes were brother and sister. Mrs. Hayes claims title to certain real property in the Town of Hillsdale, Columbia County, as a gift by virtue of a deed dated February 7, 1964, and acknowledged May 26, 1964 purporting to convey the real property by decedent, as grantor, to his sister, as grantee. The deed was shown to Mrs. Hayes on May 26, 1964, and was thereafter placed in a safe deposit box held by decedent and Mrs. Hayes, as joint tenants. The deed which was unrecorded remained in the safe deposit box until after decedent's death when it was removed by Mrs. Hayes, and has since been retained by her, but has never been recorded. The basic issue is whether there was a sufficient delivery of the deed under the circumstances to constitute a completed gift of the ownership of the real property. "`He who attempts to establish title to property through a gift inter vivos as against the estate of a decedent takes upon himself a heavy burden which he must support by evidence of great probative force, which clearly establishes every element of a valid gift'". ( Matter of Kaminsky, 17 A.D.2d 690, 691.) One of the elements of a valid gift is delivery of the property to the donee with an intent of the donor to immediately divest himself of all title and right thereto. The donor must release all control over the property. ( Matter of Green, 247 App. Div. 540.) Here, decedent continued in possession of the property after placing the deed in the safe deposit box, and he continued to pay taxes, insurance, maintenance and improvements to the property. The continuous joint custody of the deed in the safe deposit box until decedent's death is inconsistent with the claim of a complete delivery, and joint possession in the donor and donee creates no gift. ( Young v. Young, 80 N.Y. 422; Matter of Van Alstyne, 207 N.Y. 298; Matter of Kelsey, 29 A.D.2d 450.) The determination by the trial court that the real property be included as an asset of the estate of Charles E. Kennedy, deceased, should be affirmed. In reference to the claim against the estate for the amount of money borrowed by decedent from the administratrix, such claim must be proved and its validity established as any other claim. (SCPA 1805.) Since it is claimed that the debt has not been paid, respondent has the burden of proof as to payment. Here, the note dated September 1, 1964 in the sum of $500 made by decedent to Mrs. Hayes, as payee, was received in evidence as well as her canceled check dated the same date in the same amount payable to decedent. In addition, the canceled check of decedent dated September 3, 1965 in the sum of $25 payable to Mrs. Hayes as a payment of interest on the note was received in evidence, which payment was noted by decedent on the back of the note. There was substantial documentary evidence of the existence of the loan, and the unpaid debt, and no evidence by respondent to the contrary. The personal claim of the administratrix for money loaned to decedent during his lifetime in the sum of $500 plus interest should be allowed. Order modified, on the law and the facts, so as to provide for the allowance and inclusion in Schedule D-2 of the account of the personal claim of the administratrix, and, as so modified, affirmed, without costs. Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur. Herlihy, P.J., concurs in part and dissents in part, in the following memorandum: I concur in the determination by the majority that the personal claim by the administratrix for money loaned to the decedent during his lifetime in the sum of $500 plus interest should be allowed. I disagree with so much of the determination by the majority as affirms the determination of the Surrogate which held that there had been no delivery by the decedent of an otherwise duly executed deed which purports to convey real property from the decedent to the administratrix, his sister. The majority note that the deed was shown to Mrs. Hayes on May 26, 1964, but the present record establishes more than a mere showing of the deed and factually establishes a complete delivery to Mrs. Hayes, the deed thereafter being placed by the decedent in a safe deposit box held by himself and Mrs. Hayes as joint tenants. The cases relied upon by the majority to establish that a donee must clearly prove a delivery with an intent to make an inter vivos gift relate to items of personal property. As to personal property it would seem fairly obvious that a great deal of evidence would be necessary to establish a valid gift and that there is no presumption of good title in the alleged donee in the absence of an otherwise duly executed bill of sale or assignment, when the property is not in the exclusive possession of the donee. (Cf. Matter of Kinch, 33 A.D.2d 221, affd. 27 N.Y.2d 979.) In the present case we are dealing with a duly executed deed which grants title to specified real property to Mrs. Hayes. There is a presumption of delivery of a deed which attaches thereto as of the date of its witnessing or acknowledgment. ( Strough v. Wilder, 119 N.Y. 530, 534; People v. Snyder, 41 N.Y. 397, 402; Ranken v. Donovan, 115 App. Div. 651, 652; Ewers v. Smith, 98 App. Div. 289, 290; Biglow v. Biglow, 39 App. Div. 103, 105; Hoffman v. Hoffman, 6 App. Div. 84, 85.) It can be argued that the presumption of delivery of an otherwise duly executed deed does not apply in situations where the deed is not in the possession of the grantee or the grantee's successors in interest at the time the grantee claims title. In the present case the record establishes that the grantee was in possession of the deed prior to any question being raised as to a due delivery and it is also established that the grantee secured such possession from a safe deposit box to which she had an absolute and unqualified right of entry. This is not a situation where the otherwise duly executed deed was discovered after the grantor's death in a place where only he would ordinarily have access. Under the circumstances in this particular case the presumption of delivery should attach and the burden would be upon the estate and/or heirs of the decedent to establish that there was no due delivery. (See Matter of Kinch, supra.) The Surrogate put the burden upon the named grantee to prove that there had been a due delivery of the deed. In his decision he erroneously ruled that the administratrix (grantee) could not testify as to the facts showing that the deed was actually delivered to her prior to being put in the safe deposit box ( Hoffman v. Hoffman, supra) and excluded all evidence except that the deed was found in a jointly owned safe deposit box. While no presumption will attach as to personal property found in a joint safe deposit box at least in the absence of otherwise duly executed bills of sale or assignments, a deed is the formal document whereby title to real property is conveyed and the attachment of the presumption of delivery thereto merely shifts the burden to those who would question an otherwise obvious attempt by the deceased to convey the property to establish facts which would indicate that there had been no delivery and in such cases it would appear that declarations of the decedent as to his intent at the time of making or executing the deed and in connection with the delivery thereof would be admissible ( Hoffman v. Hoffman, supra). The possibility of any fraud upon the decedent and/or his estate in the admission of all evidence in regard to a document which upon its face is sufficient to convey title is quite remote as the duly executed document is persuasive that the decedent intended that the same be given effect. In any event, the presumption of delivery which attaches to a duly executed deed at such time as the deed may be found in the hands of the grantee and/or his successors in interest, is not conclusive, but merely puts the burden upon those who would dispute the validity of the document to show that some important element is missing. In the present case it is not necessary to determine whether or not a presumption of delivery should attach as to any and all duly executed deeds, regardless of whose possession the deed might be found in at the time title is questioned. It is important to note that title under a duly executed deed is in no way dependent upon the grantee retaining possession subsequent to the initial delivery of the deed to him. The order should be modified, on the law and the facts, so as to provide for the allowance and inclusion of the Schedule D-2 of the account of the personal claim of the administratrix, and so as to delete therefrom so much thereof as requires the inclusion of the specified real property in the final account, and, as so modified, affirmed. [ 56 Misc.2d 1092.]