85 Vt. 351 | Vt. | 1912
This is an appeal by a residuary legatee from the allowance of the account of an administrator c. t. a. The only objection to the account here urged is that it does not include the testator’s home place in Barre. In argument, the appellant makes controlling the question whether a certain deed of this property made by the testator to his wife was so-delivered in his life-time as to carry the title. The administrator insists that the title to the property cannot be litigated in this proceeding, since it only involves a question of accounting, and that the question of title is only material here as it bears on his diligence and good faith. He does not, however, make the point that, in the circumstances shown, he is not required to make this real estate a matter of accounting, even though it belonged to the testator. So we do not trouble ourselves with that aspect of the case. Nor do we reach the question of due diligence and good faith, for, in our view, the judgment must be affirmed on the question made by the appellant.
In the court below, an agreed statement of facts was filed, and judgment was rendered thereon affirming the decree of the probate court allowing the account as presented. The case comes here on the appellant’s exception to that judgment. The question, then, is whether the facts are sufficient to sustain judgment, and in determining that question, this Court will, in aid of the judgment, read the facts agreed in the light most favorable to the administrator. Thus read, the agreed statement shows that the testator,, Dr. B. W. Braley, owned a res
A deed does not take effect until it is delivered. And, in this case, the deed must have been delivered in the life-time of Dr. Braley, for his administrator had no authority to déliver it. To constitute a delivery, the grantor must part with the custody and control of the instrument, with the intention of having it operate as a transfer of the title, and must part with his right to the instrument as well as with the possession of it. Vt. Dig. p. 768, par. 36.
The appellant argues that Dr. Braley never parted with the control of these deeds, but the facts are against him. The deeds were passed over to Blackwell. This must have been so, for he was instructed to place them in the vault. There is nothing to show that Dr. Braley had any dominion or control over them while they remained in the custody of the bank. If we were to interpret the agreed statement as showing that.
The intention of the grantor is, as we have seen, a controlling factor in the transaction. This may be manifested by acts, or words, or both, it is always a question of fact and to be determined as such, unless the proof is siich that a necessary inference arises therefrom, in which case it is a question for the court. Lindsay v. Lindsay, 11 Vt. 621.
The facts here presented are not sufficiently decisive of the question of intent to compel a conclusion one way or the other. While, as pointed out by the appellant, some of them indicate a purpose on the part of Dr. Braley to retain control of both the papers and the property as long as he lived, the fact that he went to the bank on the day the deeds were executed with i;he avowed purpose of carrying into effect his previously expressed intention, the fact that he then parted with all control ■over the deeds, the fact that the discussion at his house was of a completed and not of a contemplated transfer, the fact that the deeds were found in Mrs. Braley’s drawer in the safe— point quite as strongly to the conclusion that he left the deeds at the bank for Mrs. Braley’s benefit, and with intent to make dhe transfer of title complete, — especially in view of the relationship between the parties and the apparent character and purpose of the transaction, which are circumstances to be considered, and which in Illinois would raise a presumption of delivery. Chapin v. Nott, 203 Ill. 331, 67 N. E. 833. Which of these conclusions is the correct one was a question for the court below to decide on the facts placed on the record. And the facts being sufficient to warrant the inference that Dr. Braley intended to complete the execution of the deeds by delivery, and thus make effective the transfer of the property, we must assume in support of the judgment that the court below drew that inference and based its judgment thereon. Whitehead v. Whitehead, 84 Vt. 321, 79 Atl. 516.
But the appellant says that there was no acceptance of the deed, without which it would not take effect. It is true that an acceptance is necessary to complete the delivery of a deed, but acceptance of an absolute and unconditional deed is pre
Judgment affirmed. Let the result be certified to the Probate Court.