Rich v. Wry

• Citation: 6 A.2d 7
• Decision Date: 02 May 1939
• Docket Number: No. 520.,520.
• Parties: RICH et al. v. WRY et al.
• Court: United States State Supreme Court of Vermont

6 A.2d 7

RICH et al.

v. WRY et al.

No. 520.

Supreme Court of Vermont. Franklin.

May 2, 1939.

Appeal in Chancery, Franklin County; Charles B. Adams, Chancellor.

Action by Ida Rich and others against Mary Russell Wry and Edward McGinn, administrator, to determine title to property formerly owned by Mary Russell, now deceased. From an adverse decree, the plaintiffs appeal.

Affirmed.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Albert W. Butler, of St. Albans, for plaintiffs.

P. C. Warner, of St. Albans, for defendants.

SHERBURNE, Justice.

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 if 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 death of Mrs. Russell on December 24, 1935, nearly nine years later, each had access to the box, and the deed remained therein continuously, except that about three weeks before Mrs. Russell's death and while she was staying with another daughter she sent word to Mrs. Wry to go to the box and get the deed and bring it to her. This Mrs. Wry did, but not being able to do the errand which Mrs. Russell asked to have done in connection with it she then returned it to the box. From prior to the execution of the deed until about six weeks before Mrs. Russell's death, she and Mrs. Wry lived together on the real estate in question practically all of the time. The remaining material findings upon this phase of the case are quoted as follows:

"11. At the time Mrs. Wry, the grantee, and Mrs. Russell talked about the deed after it had been recorded and it was read to Mrs. Russell by the grantee, now Mrs. Wry, there was some talk between them about its contents and Mrs. Wry expressed the thought that the others might not like it and Mrs. Russell replied in substance 'I don't care, I wanted to make it like that.' Any finding made herein by the Chancellor in regard to the delivery and acceptance of the deed is not based upon this conversation and such is not used in making these findings."

"12. I find that the parties to the deed by doing what they did in connection with the same as herein found in having it recorded, talking it over afterwards, placing it in the safe deposit box to which they had joint control and to which Mrs. Russell then gave her daughter, the grantee, a key intended to effectuate a delivery and acceptance of the deed and that such deed was delivered and accepted prior to the decease of Mrs. Russell, such delivery and acceptance carrying with it the title to the household furniture * * * located on the real estate in question at the time of the execution of the deed."

The plaintiffs point out an inconsistency between findings 11 and 12. Despite the chancellor's statement in finding 11 that any finding made in regard to the delivery and acceptance of the deed is not based upon the conversation reported therein, he goes on in finding 12 to base his conclusions in part upon the parties to the deed "talking it over" after the deed had been recorded. As there is no other finding about a talk or conversation, it appears that the chancellor in...