Opinion
July, 1919.
James E. Finegan, for plaintiff.
Reynolds Geis (L.J. Reynolds, of counsel), for defendants Hunt and Schlitz.
Newman Joseph (Arthur Joseph, of counsel), for defendant Taylor.
Julius J. Popper, guardian ad litem for infant defendant Randolph F. Taylor.
The action is in partition. The shares of the parties depend upon the decision as to whether a deed was valid. The deed was made by the owner of the property to two of her daughters. It was not delivered to them but, instead, was delivered to a third person with directions that he should deliver it to the grantees upon the death of the grantor. Before the grantor died, one of the grantees had died. Upon the grantor's death, the custodian of the deed delivered it to the surviving grantee. The delivery of the deed by the grantor put the control of it out of her possession. It was absolute in the sense that she could not regain its possession. It was not, however, to become effective until her death. This constituted a valid transfer of the property. Stonehill v. Hastings, 202 N.Y. 115. The fact that the grantor retained possession of the property, continuing to collect the rents and execute extensions of mortgage and otherwise treat the property as hers is not inconsistent with the foregoing ruling. The property was to remain hers until she died. Nor is there anything in conflict with this decision in Saltzsieder v. Saltzsieder, 219 N.Y. 523. That case merely held that, as a matter of fact, the deed had not passed absolutely out of the control of the grantor and could be revoked or recalled.
The question remains as to the effect of the death of one of the grantees prior to the death of the grantor. No one contends that the surviving grantee is entitled to more than a one-half interest under the deed. The question is whether the other one-half goes to the heirs of the deceased grantee or to the heirs of the grantor. At the close of the trial the court invited briefs upon this point, stating that possibly the heirs of the deceased grantee were not entitled to take. Since then the attorneys representing those heirs have written saying they have been unable to find a case which sustains their contention. But the court has been more fortunate. Though the deed was not delivered by its custodian before the death of the grantee, when it was delivered it is deemed to have taken effect from the time of its delivery to the custodian. And so the heirs of the deceased became entitled to her undivided one-half interest. Hunter v. Hunter, 17 Barb. 25, 82; Ruggles v. Lawson, 13 Johns. 282, 286; Webster v. Kings County Trust Co., 80 Hun, 420, 426; Perry v. Perry, 170 A.D. 525. This is also the rule recognized by the text writers. 3 Washb. Real Prop. (6th ed.) 273; Tiedeman Real Prop. (3d ed.) § 579, p. 839; 2 Tiffany Real Prop. § 406, pp. 931, 932; Brewster Conveyancing, § 309; Devlin Deeds (2d ed.), § 333a; 16 Cyc. 588, 599.
Judgment accordingly.