156 N.Y.S. 521 | N.Y. Sup. Ct. | 1915
On December 7, 1887, William Baxter and the defendant, Elizabeth Baxter, were married, the defendant then being seventeen years of age. By deed recorded May 1, 1888, William Baxter took title to the premises described in the complaint. William Baxter and his wife, Elizabeth, thereafter resided thereon until the death of William Baxter in 1914. The plaintiff, a son of William and Elizabeth, was born in December, 1890. William Baxter having died intestate, the plaintiff claims to be the sole owner of the premises as heir-at-law of his father, subject to his mother’s right of dower. The defendant claims to be the owner of a life estate in the premises by virtue of a deed from William Baxter, which was executed June 29, 1889. The plaintiff seeks to restrain the defendant Elizabeth Baxter from enjoying such life estate.
On July 17, 1889, William Baxter, as the husband and next friend of his wife, Elizabeth, who was then' eighteen years of age, made a petition to the Superior
Upon the trial of this action the defendant offered in evidence a mutilated, unrecorded deed containing an acknowledgment before Frank F. Williams, notary public, bearing date June 29, 1889, wherein it is certified that William Baxter personally appeared before the notary and acknowledged that he executed the instrument. The mutilations consist of the tearing or cutting out of the paper of the names of the grantor and grantee and a part of the signature of the apparent grantor. The paper apparently is a conveyance of a life estate in the premises in question. The defendant claims that this paper before its mutilation was a quit-claim deed, duly executed by William Baxter, conveying to Elizabeth Baxter a life estate in the premises in question, that it was delivered by William Baxter to the defendant Elizabeth Baxter, and that by virtue thereof she became, on or about the date of its acknowledgment, vested with a life estate in the premises in question, which estate she now owns. The plaintiff claims that there has been no competent evidence offered establishing that this paper ever was a duly executed conveyance by William Baxter to Elizabeth Baxter of such life estate or that it was ever delivered to the defendant.
If, as a matter of fact, the paper as it was when it left the hands of Mr. Williams was delivered by William Baxter to Elizabeth Baxter, such delivery would relieve the paper and its contents from the privacy of a confidential communication by William Baxter to Mr. Williams, his attorney, and the attorney could thereafter relate the items of its preparation and contents without violating the provisions of section 835 of the Code of Civil Procedure. If Elizabeth Baxter actually received the paper from William Baxter she thereby became acquainted with everything now
Tbe competency of the attorney’s testimony and tbe validity of defendant’s life estate are thus seen to be dependent upon tbe delivery of tbe deed by William Baxter to Elizabeth Baxter. Tbe deed was executed June 29, 1889. On July 23, 1889, William Baxter testified in tbe infancy proceedings that Elizabeth’s real estate then consisted of “ a bouse and lot where said infant and her said husband reside,” tbe “ bouse we live in. ’ ’ Tbe bouse and lot where they, William and Elizabeth, then resided are tbe same premises described in tbe deed whereby William purports to grant to Elizabeth a life estate. William Baxter having had title in 1888, be must be presumed to have known whether be owned tbe premises in 1889; be having testified in 1889 that bis wife then owned tbe premises, the conclusion is irresistible that be- must have known bow she obtained her title. It is certain that she could
The facts as testified by William Baxter in 1889 and the production of the mutilated deed by the defendant, Elizabeth Baxter, upon the trial, will be accepted as proof of the delivery of the deed, in the condition in which it was when executed, by William Baxter to the defendant, Elizabeth Baxter.
This determination leads to the conclusion that the plaintiff’s motion to strike out the testimony referred to must be denied.
An interlocutory judgment ordered for the defendant Elizabeth Baxter, establishing her life estate in the premises described in the complaint and directing an accounting for the rents, etc., with costs.
Judgment accordingly.