Arwe v. White, 7763

• Citation: 117 N.H. 1025,381 A.2d 737
• Decision Date: 30 December 1977
• Docket Number: No. 7763,7763
• Parties: Kenneth J. ARWE, administrator w.w.a. Estate of Perley E. Swett v. Quentin H. WHITE et al.
• Court: New Hampshire Supreme Court

Page 737

381 A.2d 737

117 N.H. 1025

Kenneth J. ARWE, administrator w.w.a. Estate of Perley E. Swett v. Quentin H. WHITE et al.

No. 7763.

Supreme Court of New Hampshire.

Dec. 30, 1977.

Goodnow, Arwe, Ayer, Prigge & Gardner, Keene (Eric R. Gardner, Keene, orally), for the administrator.

Blodgett & Makechnie, Peterborough (Maurice M. Blodgett, Peterborough, orally), for Linda M. Tilton.

Kendall W. Lane, Keene, by brief, for Bernice Clark.

DOUGLAS, Justice.

This case arises from the request of Kenneth J. Arwe, administrator w.w.a. of the estate of Perley E. Swett, for instructions regarding the effect of an unrecorded deed unknowingly taken into the possession of one of the grantees during the decedent's lifetime. Two of the grantees, Quentin H White and Linda M. Tilton, were close personal friends of the decedent. The other two grantees were favorite relatives. The Master (Charles T. Gallagher, Esq.) ruled that the deed failed for want of "acceptance" during the decedent's lifetime. Linda M. Tilton, Sheila D. Swett and Priscilla A. Burkart excepted to this ruling. All exceptions were reserved and transferred by King, J.

Quentin H. White became acquainted with Perley Swett, the decedent, several years before his death. Swett, who was advanced in years, maintained a rather eccentric life style, living in an isolated area, three miles from his nearest neighbor, without any means of transportation and wholly dependent on friends and family for necessities of life. White was his principal helper; the two grew quite close. He took primary responsibility for bringing food, delivering mail and watching over the old man's health and well-being. Gradually Swett came to rely on White for advice. Linda M. Tilton was a friend from her childhood. Although her family moved from the area and she saw the decedent infrequently thereafter, she maintained an active correspondence with him and visited him frequently in the hospital before his death.

The greater part of the decedent's assets consisted of the property on which he resided, which he called the "home place." It was received from his mother in 1925 and Swett had lived on it virtually all his life. The record indicates that Swett was preoccupied with its disposition in his later years. Yet, when he exhibited his will to White in 1970, the only mention of the property was:

"Unless changed, by me, disposition seems made of what is called the 'home farm', and that seems to be around 369 acres. (all connected)."

The will bears every indication of being drafted without professional advice. In response to White's inquiry about the absence of a bequest of the "home place," Swett produced a copy of a warranty deed, conveying to White, Tilton and two others each a one-quarter undivided interest in this property. The deed appeared unexecuted, but unknown to anyone save Swett and his attorneys, Swett had properly executed the original deed on June 3, 1969, and retained its possession. It was never recorded.

During the course of their relationship, White became interested in the decedent's writings, which were prolific. He intended to publish them with a description of Swett's life. Toward that end, he asked for and received from the decedent, title to Swett's papers. He removed a few personally and received instructions that in the event of Swett's death or incapacity causing removal from the house, White was to gather and remove all other papers. Swett showed White a box filled with papers that was specifically to be removed and acted upon.

On June 20, 1973, the decedent suffered a stroke, which paralyzed his right side and rendered him unable to talk. White found him lying on the bed and called an ambulance. During the half-hour intervening before the ambulance arrived, Swett insistently gestured toward the table. The executed deed and the specifically designated box that had contained it were located among a large quantity of other papers. During his final months in the hospital and in a nursing home, Swett conducted one-sided conversations with White through nods and gestures to White's questions. Repeatedly, it became apparent that Swett wanted to discuss the deed. White removed all Swett's personal papers, including the deed, according to their prior arrangement, but though he made a brief search, he did not find the executed deed.

Swett died on September 1, 1973, and his will was proven on October 2, 1973. White resigned as executor a few months thereafter because of trouble with Swett's heirs. He entered into an agreement with them by which the heirs acknowledged his title to Swett's personal papers except deeds, and White relinquished all claims to Swett's real estate under any unrecorded deeds. White did not know of the executed deed until several months after the agreement when, on November 21, 1974, he discovered it. Four days later, White turned the deed over to the administrator. At no time before the decedent's death did any of the grantees have knowledge of the existence of the executed deed, although White had in fact taken possession of it before Swett's death.

An executed deed validly conveys title only when it is "delivered" by the grantor with present intent to convey and is "accepted" by the grantee. Newbury v. Parsons, 103 N.H. 96, 97, 166 A.2d 231, 232 (1960). Ordinarily execution and delivery occur at the same time or within a short time of each other as part of a single transaction. In such an instance, we speak of intent as being ascertained at the time of execution. Hammer v. Ray, 116 N.H. 90, 92, 352 A.2d 734, 736 (1976). However, such a statement is merely a corollary of the general rule that anything clearly manifesting the grantor's intent that his deed become operative, by words, acts and the surrounding circumstances, is sufficient to support a finding of legal delivery. Lintner Estate v. Meier, 344 Mich. 119, 123, 73 N.W.2d 205, 207 (1955); 4 H. Tiffany, The Law of Real Property § 1034, at 361 (3d ed. 1975).

In the typical transaction the time of execution would be the event at which such an intent would form. Swett had no intent that the conveyance be effective at the time he executed the deed. But when the grantor intends a lapse of time to separate execution and delivery, the proper time to ascertain intent is at delivery, Howell v. Mays, 107 Cal.App. 751, 755, 290 P. 898, 900 (1930); see Oberholtz v. Oberholtz, 79 Ohio App. 540, 544, 74 N.E.2d 574, 577-78 (1947), when the intent that the deed become effective matures. In this case, we look to the time of delivery. Cf. 8 G. Thompson, Commentaries on the Modern Law of Real Property § 4225, at 3 (1963) ("delivery" part of "execution").

Although the determination whether an executed deed has been properly delivered is ordinarily a question of fact, Newbury v. Parsons,supra 103 N.H. at 97, 166 A.2d at 232, on occasion, it becomes a mixed question of fact and law. Hurlburt v. Wheeler, 40 N.H. 73, 76 (1860); 23 Am.Jur.2d Deeds § 88 (1965). Whether the facts, once ascertained, constitute delivery is always a question of law. Reed v. Keatley, 187 Kan. 273, 278, 356 P.2d 1004, 1008 (1960); Bove's Estate v. Bove, 116 Vt. 76, 86, 70 A.2d 562, 568 (1950); 8 G. Thompson, supra § 4228, at 39. The same categorization applies to acceptance. 8 G. Thompson, id.

The facts allegedly constituting delivery are not in dispute. It might have occurred as early as the original gift of the papers, the removal of some of the papers under a valid claim of right being constructive delivery as to the remainder, including the deed. Cf. Marsh v. Fuller, 18 N.H. 360, 362 (1846); Sullivan v. Hudgins, 303 Mass. 442, 447-48, 22 N.E.2d 43, 46 (1939). Since the law no longer always demands actual physical transfer of the deed if the grantor intends that the instrument be legally operative, Reed v. Reed, 261 Or. 281, 283, 493 P.2d 728, 729 (1972) (" 'delivery is effected by a mental, not a physical process' "); Rich v. Wry, 110 Vt. 307, 311, 6 A.2d 7, 8 (1939); 8 G. Thompson, supra at 4225, & at 2 n. 4; 4 H. Tiffany, supra § 1034, Swett's gestures while waiting for the ambulance and his one-sided conversations in the hospital could be found to have been good delivery. In any event, White acquired actual physical possession of the deed when he removed Swett's papers after the stroke.

Although mere physical possession of the deed by a grantee does not in itself constitute a delivery, Bove's Estate v. Bove, supra 116 Vt. at 86, 70 A.2d at 568; 8 G. Thompson, supra § 4234, at 70, Swett's repeated gestures toward the table while waiting for the ambulance and his constant attempts to discuss the deed while in the hospital evince his knowledge that the deed was on the table and that he wanted White to take possession of it. In the absence of evidence to the contrary, a valid delivery to one of several cograntees serves as a delivery to the remainder. Klouda v. Pechousek, 414 Ill. 75, 81, 110 N.E.2d 258, 262 (1953); Schmidt v. Jennings, 359 Mich. 376, 378, 102 N.W.2d 589, 593 (1960); 4 H. Tiffany, supra § 1034, at 361.

The master's findings are not to the contrary as to delivery. His report voids the deed for lack of acceptance during the decedent's lifetime. The authorities are split over whether acceptance is an integral part of delivery, as the administrator claims, Fitzpatrik v. Layne, 291 Ky. 523, 531, 165 S.W.2d 13, 18 (1942); Hawkes v. Pike, 105 Mass. 560, 563 (1870) (semble); 23 Am.Jur.2d supra § 127, at 176, or whether it is a component of conveyancing independent of delivery, 4 H. Tiffany, supra § 1061; see Martin v. Adams, 216 Miss. 270, 277, 62 So.2d 328, 329 (1953); Smith v. Black, 143 Neb. 244, 250-52, 9 N.W.2d 193, 197-98 (1943). See generally 8 G. Thompson supra § 4251, at 164-65.

Our cases treat this matter inconsistently. Compare Newbury v. Parsons, 103 N.H. at 97, 166 A.2d at 232 (deed must be delivered and accepted), and Corbett v. Norcross, 35 N.H. 99, 110 (1857) (grant not accepted), with...