Ida Rich v. Mary Russell Wry

• Decision Date: 02 May 1939
• Citation: 6 A.2d 7,110 Vt. 307
• Parties: IDA RICH ET AL. v. MARY RUSSELL WRY ET AL
• Court: Vermont Supreme Court

6 A.2d 7

110 Vt. 307

IDA RICH ET AL. v. MARY RUSSELL WRY ET AL

Supreme Court of Vermont

May 2, 1939

February Term, 1939.

1. Intention as Determining Whether Deed Delivered---2. Finding as to Delivery Based in Part on Conversation---3. Essentials of Delivery---4. Effect of Retention by Grantor---5. Necessity of Manual Delivery---6. Effect of Recording---7. Effect Where Grantor Retained Control Until after Recording---8. Facts Held to Support Inference of Delivery---9. Status of Exception Not Briefed---10. Claim as to Deed Being Trust Deed Insufficiently Briefed.

1. Intention of grantor is controlling factor in determining whether there has been delivery of deed and may be manifested by acts, or words, or both.

2. In suit in equity to determine title to property formerly owned by decedent, finding as to delivery of deed by her and acceptance by her daughter based in part upon conversation about deed which took place between them when deed was read to decedent by daughter after decedent had had it recorded was without error, since evidence of conversation was admissible to show intention of grantor with respect to delivery.

3. To constitute delivery of deed grantor must part with custody and control of the instrument, permanently, with intention of having it take effect as transfer of title, and must part with his right to the instrument as well as with possession.

4. So long as grantor retains control of deed, he retains title to property described therein.

5. Actual manual delivery is not essential to validity of deed but it is a sufficient delivery if deed is so disposed of as to evince clearly intention of parties that it should take effect as conveyance.

6. Fact that deed is on record, even if recorded by grantor's direction, is only prima facie evidence of delivery, which may be rebutted.

7. Where it appeared from facts found that grantor retained complete control of deed until after it had been recorded and she had shown it to grantee, any presumption of delivery prior to that time was rebutted, but fact that grantor had had deed recorded was circumstance to be considered, along with other facts found, in determining whether there had been sufficient delivery thereafter.

8. In suit in equity to determine title to property formerly belonging to decedent, where it was found by chancellor that decedent executed deed conveying life estate in house and lot to her daughter but reserving use and control during her own life, had it recorded, had daughter read it to her and discussed it with daughter, went to bank accompanied by daughter and placed it in safe deposit box which thereafter stood in joint names of herself and daughter and to which she gave daughter a key, and left it there for about nine years until her death, except that on one occasion shortly before her death daughter brought it to her at her request and later returned it to box, and that decedent and daughter occupied such real estate together from time prior to execution thereof until about six weeks before decedent's death held that chancellor was entitled to draw inference that there was delivery and acceptance of deed during lifetime of decedent.

9. Exception to finding of chancellor which was not briefed was not for consideration in Supreme Court.

10. Claim made by plaintiffs in suit in equity to determine title to property formerly belonging to decedent that daughter named as grantee in decedent's deed of life interest in real estate, which also contained provisions relating to personal property and money, could not claim real estate and household effects under deed because, having stipulated that certain savings ac-

counts stood in decedent's name and had been treated as assets of her estate, she could not accept trust in part and decline as to balance, was insufficiently briefed and not for consideration in Supreme Court where assertion that deed was trust deed was not supported by reference to any particular part thereof, nor by argument or citation of authority.

APPEAL IN CHANCERY. Bill to determine title to certain property formerly owned by a decedent. One of the defendants, a daughter of the decedent, claimed a life estate by virtue of a deed from her mother. Plaintiffs claimed that there had been no sufficient delivery of the deed. Heard on the pleadings, oral evidence and exhibits, and facts found by the chancellor at the April Term, 1938, Franklin County, Adams Chancellor. Decree for the defendants dismissing the bill. The plaintiffs appealed and filed a bill of exceptions. The opinion states the case.

The decree is affirmed, and it is ordered, adjudged and decreed that the bill of complaint be dismissed with costs.

Albert W. Butler for the plaintiffs.

P. C. Warner for the defendant, Mary Russell Wry.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This is an action to determine title to property formerly owned by Mary Russell, now deceased. The parties hereto, except Edward McGinn, the administrator, are the surviving children of Mary Russell and, together with certain children of a deceased son and daughter named in the bill, are the heirs to her estate.

The findings show that on February 5, 1927, Mary Russell executed a deed to her daughter, then named Mary Russell, now the defendant Mary Russell Wry. This deed conveys to the grantee a life estate in the grantor's house and lot, but reserves to the grantor the use and control during her lifetime, and is conditioned that the grantee shall pay the grantor's funeral expenses. It also contains provisions relative to personal property and money.

After the execution of the deed Mrs. Russell had it recorded in the land records. After it had been recorded Mrs. Russell got it from the town clerk's office and had her daughter read it to her. Then accompanied by her daughter she took and placed it in a safe deposit box at the bank. This box was originally rented from April 29, 1926, but the chancellor is unable to find whether it was originally rented in the joint names of Mrs. Russell and her daughter, but does find that if it was not it was changed to their joint names when the deed was placed therein, and that at that time Mrs. Russell gave her daughter one of the keys to the box. From then until the...