stood in the name of Henry A. Mayor and Wilhemina Mayor by the entirety and upon the death of said Henry A. Mayor the property became the sole property of Wilhemina Mayor, the grantor to these defendants. Milligan v. Bing, 108 S.W.2d 108, 111, 341 Mo. 648; Alexander v. Alexander, 44 S.W.2d 872; Decker's Estate, 152 S.W.2d 104; 27 C.J., p. 647, sec. 415; Carrol v. Meek, 137 S.W. 19; Jones v. Jefferson, 66 S.W.2d 552, 334 Mo. 606; Creamer v. Bivert, 113 S.W. 1118, 214 Mo. 473; Stierlin v. Teschemacher, 64 S.W.2d 647, 333 Mo. 1208; Fulbright v. Phoenix Ins. Co. of Hartford, 44 S.W.2d 115, 329 Mo. 207; Curd v. Brown, 49 S.W. 990, 148 Mo. 82; Hernandez v. Prieto, 162 S.W. 829; Schwind v. O'Halloran, 142 S.W.2d 55, 346 Mo. 486; Sec. 1887, R.S. 1939; Eaton v. Curtis, 4 S.W.2d 819, 319 Mo. 660; Wren v. Sturgeon, 184 S.W. 1036; Reed v. Morgan, 73 S.W. 381; Smith v. Brinkley, 132 S.W. 301, 151 Mo. App. 499; Rice v. Shipley, 60 S.W. 740, 159 Mo. 399; Messimer v. McCrary, 21 S.W. 17, 113 Mo. 882; Slagle v. Callaway, 64 S.W.2d 923, 333 Mo. 1055. (2) The court erred in its judgment and finding that the will of Henry A. Mayor disposed of the real estate described in plaintiffs' petition because the testator had no testamentary control over said property at the time of his death. Simon v. St. Louis Union Trust Co., 139 S.W.2d 1002, 346 Mo. 146; Ashbaugh v. Ashbaugh, 201 S.W. 72, 273 Mo. 353. (3) The court erred in its judgment and finding that the defendants, William Jennings Bryan Mayor and Levonah Mayor Bauer, are estopped to claim property described in plaintiffs' petition as grantees from their mother, Wilhemina Mayor, because said grantor had elected to accept as a widow and heir under the provisions of the will of her husband, Henry A. Mayor, when as a matter of fact said widow did not make an election and when as a matter of fact the will of her said husband by its provisions did not require the wife to make an election and when as a matter of fact the said widow did nothing by conduct which would constitute an election
Meader v. Ward, 303 Mo. 176; Hamilton v. Armstrong, 120 Mo. 597. Grantor in presence of a son held a valid delivery. Sneathen v. Sneathen, 104 Mo. 201; Slagle v. Callaway, 333 Mo. 1055; Mendenhall v. Pearce, 20 S.W.2d l.c. 674; Meredith v. Meredith, 287 Mo. 250; Givens v. Marbut, 259 Mo. 223; Schooler v. Schooler, 258 Mo. l.c. 92; Blackiston v. Russell, 44 S.W.2d 22; Southern v. Southern, 52 S.W.2d 868; Whiteley v. Babcock, 202 S.W. 1091. The fact is all this testimony in reference to the timber deed and Triple A contracts is subject to objection, under the agreement and reservation in taking the depositions, and we urge an objection to this testimony because it is not the best evidence on the subjects, as the best evidence would be the contracts and timber deed themselves. The most of the testimony of Lee Clark is objectionable and we do not consider it admissible.
There was not a joint interest, but an adverse interest, as described in the statute. Sec. 1887, R.S. Mo. 1939; Davis v. Robb, 10 S.W.2d 680, 681, 682; Schwalbert v. Konert, 76 S.W.2d 445, l.c. 452; Slagle v. Callaway, 64 S.W.2d 923, l.c. 927. The incompetency of the testimony of Olive Mae Kerr was not waived, but was admitted under the express statement by the court, that he would rule on its admissibility at the close of all the evidence and the plaintiff's objections were properly saved.
The pleader has that option. Slagle v. Calloway, 64 S.W.2d 923, 928 (Mo. 1933). Chapter 213 also has an option for obtaining relief in an administrative proceeding.
Williams v. Perkins, 83 Mo. 379, 385; Fulkerson v. Thornton, 68 Mo. 468. See also Birdsall v. Coon, 157 Mo.App. 439, 139 S.W. 243, 246 [2]; McConnon Co. v. Kuhlmann, 220 Mo.App. 821, 278 S.W. 822, 824[3]; and for distinction where the survivor took no part in the transaction with the dead adverse party, see Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 19-20[8,9]; Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, 90 A.L.R. 1366. Under the law and circumstances here plaintiff was a competent witness against appellants because the deceased agent's joint agent Woodin was advised of the entire transaction and was alive and present at the trial and, although not called, was available to contradict, explain, or rebut plaintiff's version of the transaction. The reason for disqualification of plaintiff as a witness did not exist and no error was committed in receiving his testimony.
Delivery of a deed may be made so as to pass title even though the grantor retains possession of the deed. It is the intention of the parties, especially that of the grantor, which controls. In the Galloway case, supra, 169 S.W.2d l.c. 888(10-15), this court said, "The delivery of a deed is not rendered ineffectual by the placing of it by grantee in a safety deposit box, or other place of safekeeping, to which both the grantor and grantee have access. Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, 90 A.L.R. 1366; Phillips v. Phillips et al., 50 Mo. 603. Nor is the delivery of a deed rendered ineffectual if the deed is given into the custody of the grantor for safekeeping. Hale et al. v. Weinstein et al., Mo.Sup., 102 S.W.2d 650." See also Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, l.c. 37(10, 11), 33 A.L.R.2d 1431.
Complete relief should be here given. Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631; Auldridge v. Spraggin, 163 S.W.2d 1042; Dinkelman v. Hovekamp, 336 Mo. 567, 80 S.W.2d 681; Slagle v. Calloway, 64 S.W.2d 923, 333 Mo. 1055; Shaffer v. Detie, 191 Mo. 377, 90 S.W. 131; 26 Washington University Law Quarterly, p. 475, "Declaratory Judgments," by Judge Laurence M. Hyde; Kimberlin v. Roberts, 341 Mo. 267, 107 S.W.2d 24; Waugh v. Williams, 242 Mo. 903, 119 S.W. 223; Moser v. Renner, 179 S.W. 970. (25) The theory upon which the case was tried below must be adhered to here. Bray's Admr. v. Seligman's Admr., 75 Mo. 31; Grossenbacher v. Daly, 287 S.W. 781; E.D. Stair Corp. v. Taylor, 39 F.2d 788.
There is evidence here that appellee, as grantor, put the deed out of his control and unconditionally delivered it to Irene Garcia. There is further evidence that appellant, as grantee, accepted the deed by recording it. See Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923 (1933). Appellee stresses that the language in the deed which refers to "eventual delivery" shows no intention to effectuate a present transfer of the property.
In the circumstances of this case, however, grantor LeMehaute was also a grantee and the rule applies with logic that a deed delivered to one of the several grantees operates as a delivery to all of them, in the absence of a disclaimer. Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, 928[2, 3] (1933); Carr v. Lincoln, 293 S.W.2d 396, 401[5-7] (Mo. 1956); 26 C.J.S. Deeds § 49, p. 707. The absence of an overt acceptance by the grantee at the moment of execution does not mar the completion of delivery where, by the circumstances, the intention of the grantor to convey title was not known. Acceptance by the grantee is presumed, however, where the grant is beneficial. Chambers v. Chambers, supra, 127 S.W. l. c. 92. Acceptance, as delivery, may be by word or act without formula or ceremony — according to the circumstances.
This testimony was properly excluded because plaintiff was incompetent to testify as to admissions made by any deceased adverse party which tended to strengthen her case at the expense of such party. Both testator and Sloan were adverse parties within the meaning of the statute; Jones on Evidence, 5th Edition, Volume 3, Par. 777, page 1444; Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, 927-928, 90 A.L.R. 1366. It does not appear that the testimony offered is such as would be admissible since it referred to the bonds and to plaintiff's rights thereto by gift made to her by testator prior to his death.