198 A.D. 630 | N.Y. App. Div. | 1921
The action was brought to quiet plaintiffs’ title to certain premises, a house and lot in the borough of Brooklyn, by removing therefrom a cloud caused by certain specified conveyances and devises through which the appellants claim title. The case was here before upon appeal from an order made at
John D. Carroll was the owner of the premises for many years prior to September, 1902, and resided upon them with his family consisting of his wife and two daughters. The daughter Adelaide married John McLaughlin, and the McLaughlin defendants are her children, she having died. The other daughter, Frances, married James Sinnott, and the Sinnott parties are her children, she also having died. About 1896 the Sinnott family began living with the father, John D. Carroll, upon said premises, and continued living there with him until the first Mrs. Carroll died and Mr. Carroll remarried. Subsequently, about 1907, that family left that residence, Mrs. Sinnott having then died, and lived elsewhere until in 1917 they reoccupied the premises, John D. Carroll having died shortly bófore January, 1915. This action was commenced in August, 1919. On September 29, 1902, John D. Carroll made, executed and acknowledged a certain deed of said premises, and on October 3, 1902, caused the same to be recorded in the register’s office of Kings county. At that time the Sinnott grandchildren resided there with him. The vital question in the case is the construction of that instrument. By its terms it is by John D. Carroll, party of the first part, and “ John D. Carroll, in trust for Carroll Sinnott [and the other Sinnott grandchildren], grandsons of the aforesaid John D. Carroll, all under fourteen years of age * * * parties of the second part.” At that time the said grandchildren were all under fourteen years of age. The deed further provided in the granting clause thus: “do hereby grant and release unto the said parties of the second part, their heirs and assigns forever [then the description], together with the appurtenances and all the estate and rights of the said party of the first part in and to said premises, to have and to hold
The practical question presented by the evidence for determination was whether or not the said deed by Mr. Carroll to himself as trustee conveyed the title to the Sinnott grandchildren. If it did not, obviously the premises passed under his will to all of his grandchildren, the. McLaughlins and Sinnotts; and that was and is the claim of the appellants. The decision answered that question in the affirmative, and judgment accordingly followed. The trial justice filed a memorandum opinion in which, upon citation of several apt authorities, he held -that the present section 93 of the Real Property Law (formerly, at the time when said deed was executed, known as section 73) applied and governed. (See Gen. Laws, chap. 46 [Laws of 1896, chap. 547], § 73; Consol. Laws, chap. 50 [Laws of 1909, chap. 52], § 93.) The substance of that section as construed by various decisions is that where a deed is made to one person simply in trust for
“ § 93. Trustee of passive trust not to take. Every disposition of real property, whether by deed or by devise, shall be made directly to the person in whom the right to the possession and profits is intended to be vested, and not to another to the use of, or in trust for, such person; and if made to any person to the use of, or in trust for another, no estate or interest, legal or equitable, vests in the trustee.”
I perceive no sound reason for this attempted distinction, and conclude that the rule applies as well to a case, as here where the grantor is named as the grantee in trust, as to a case where a third party is named as such grantee.
Appellants further claim that there was no proof of delivery of the deed so as to make it effective. As to that matter the memorandum opinion at Special Term cites the well-established rule that the recording of a deed is presumptive evidence of delivery. The fact that after the grantor’s death the paper was found among his effects is of very little probative force in view of the tender age of the grandchildren at that time and of the further fact that they were living with him, their grandfather. No custody over them at that age and under those circumstances could be more natural than with him. Therefore, I think that we cannot well hold the finding of delivery to be against the weight of the evidence.
Present — Blackmar, P. J., Mills, Rich, Putnam and Kelly, JJ.
Judgment unanimously affirmed, with costs.