
    (89 Hun, 465.)
    MERCANTILE SAFE-DEPOSIT CO. v. HUNTINGTON et al.
    (Supreme Court, General Term, First Department.
    October 18, 1895.)
    1. Interpleader—When Lies.
    1 An objection by one of two claimants of property that the depositary has no right to maintain interpleader, because such claimant was clearly entitled to the property, cannot be sustained where the court, on the hearing of the interpleader, decided that the other claimant was entitled to the property.
    2. Joint Tenancy—Safe-Deposit Vault—Loss by Two Persons.
    The renting of a compartment in a safe-deposit vault in the name of “M. or A.” does not create a presumption that M. and A. are joint tenants of the property placed in such compartment.
    3. Deed—Delivery—Evidence.
    Finding of a deed among the papers of a grantee is evidence that the deed was delivered.
    Appeal from special term, New York county.
    Action by the Mercantile Safe-Deposit Company against Collis P. Huntington and others, as executors, and Caroline C. Martin and another, as administrators, to determine the ownership of a tin box and its contents. From a judgment adjudging that plaintiff is entitled to interplead in respect to the property, and determine the conflicting rights of the parties, defendants Caroline O. Martin and another, as administrators with the will annexed of Abigail R Colton, deceased, appeal. Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    Andrew W. Kent, for appellants.
    C. W. Pierson (F. R. Coudert, of counsel), for respondents.
   VAN BRUNT, P. J.

It appears from the evidence in this case that about October, 1882, one Martha Colton rented a compartment in the plaintiff’s vaults, and paid for the same and the box placed therein. The compartment was rented in the name of “Miss Martha Colton, or Mrs. Abigail R. Colton.” Martha Colton was the only one who was identified to the company, and who ever had access to this property, except a person authorized by her. Abigail R. .Colton was entirely unknown to the company, and was never identified, or so complied with the rules of the company as to have access to the safe in question. Martha Colton died on the 3d of November, 1892, and Abigail R. Colton died on the 30th of November, 1892. The executors of Martha Colton made a claim upon the plaintiff for the contents of the safe, which the plaintiff so far recognized as to allow them to examine the box. Subsequently the administrators of Abigail R. Colton made claim to the box, and on the 9th of November, 1893, commenced a replevin action to recover the same. This action was begun by the deposit company, to be allowed to interplead the defendants, upon bringing the property into court. The defendants answered, setting up, as against each other, their respective rights, and serving their answers upon each other. The court, upon the trial, having determined that the plaintiff was entitled to interplead, then proceeded to determine the rights of the parties, and gave judgment. From the decree thereupon entered this appeal is taken.

The first question presented is, had the nlaintiff the right to maintain its suit of interpleader? It is urged upon the part of the appellant that it had not, because the administrators of Abigail R. Colton were clearly entitled to the possession of the property, and that there was no substantial claim to the property, as against such administrators. The result of this action seems to be a sufficient answer to this proposition. The fact that the court below has determined that the administrators are not entitled to this property certainly justifies, as against the claim of the administrators, an interpleader upon the part of the plaintiff.

It is further claimed, as a ground for the dismissal of the bill for interpleader, that the plaintiff was not ignorant of the rights of the respective defendants. But, as the court has decided that the defendant appellants have no interest in the property, it is apparent that they cannot raise any such objection in an action of interpleader. It would seem, from a consideration of the questions involved, that this was eminently a case in which the plaintiff had a right to be protected in the delivery of this property.

The next question presented is whether the executors of Martha Colton, or the administrators of Abigail R. Colton, are entitled to the possession of the property contained in the box in question. One of the points which is most strenuously urged by the appellants is that, this box standing in the name of “Miss Martha Colton, or Mrs. Abigail R. Colton,” they became joint tenants, entitled to the property contained therein, and that upon the death of Martha the title vested in Abigail, and upon her death, in her administrators. We think this is claiming altogether too much from the fact that this compartment in a safe-deposit company was rented in the name of “Miss Martha Colton, or Mrs. Abigail R. Colton.” It seems to us that all that can be deduced from that fact is that it was the intention of these parties that either might qualify herself to have access to the safe. It did not, by any means, determine the ownership of the contents of the safe. Nor could it be predicated upon this fact that there was a joint ownership in the property contained therein, with a right of survivorship. We think it would be a proposition which would somewhat astonish the renters of boxes in safe-deposit companies, if it should be held that, when two combine to rent a safe, the presumption would be that there was a joint ownership in all the property contained therein, even though the names of the renters were disjunctively associated.

It is further urged on the part of the appellants that certain averments made by Martha Colton in a bill of complaint, and certain evidence given by her, show that she was not possessed of any property whatever. But it is to be observed from the evidence in this case that Martha Colton treated this property and its proceeds as her own. The income thereof was deposited to her own credit in her own bank account, and it would seem—presumably, with her mother’s knowledge—that she exercised all the rights of ownership over it. Moreover, it appears that upon her death there was found in her possession a paper, under seal, signed by Mrs. Colton, by which she declared that, in consideration of love and affection, she had given, and thereby did give, to her daughter Martha, all her property, including money and securities, to have and to hold the same, and to her own use and benefit forever. This instrument is sought to be impeached by the suggestion that the handwriting of the body of the instrument was not established, and that one of the witnesses who testified to the signature of Mrs. Colton simply testified that in his opinion it was in her handwriting. It is to be observed that the evidence in regard to the signature of Mrs. Colton to this paper was of such a character that it was introduced without objection, and there was no attempt whatever to prove that the signature was not Mrs. Colton’s. And, for the purposes of this appeal, we must assume what the evidence abundantly establishes,—that the signature was hers. The paper was found in the desk of Miss Martha Colton, and consequently had apparently been delivered to her. She already had the possession of the securities, they being in the box of the safe-deposit company, to which she alone had access; and, as already suggested, she was continuously exercising the rights of ownership over these securities,—receiving the income, and depositing it to her own individual credit. All the elements of a gift inter vivas were therefore established,—the gift, and the possession of the thing given by the donee. The learned counsel for the appellant, we think, correctly states the elements necessary to the validity of a gift inter vivos: First, the donor must be competent to contract; second, there must be freedom of will; third, the gift must be complete, with nothing left undone; fourth, the property must be delivered by the donor, and accepted by the donee; and, fifth, the gift must go into immediate and absolute effect. The appellant claims that in the case at bar all these essentials are wanting. We have examined the record with care and attention, to see upon what foundation this assertion rests, and we are unable to discover that there is anything wanting to establish the validity of a gift inter vivas. We think, on the contrary, that, instead of all the essentials being wanting, every one of them.seems to be established by conclusive proof. The evidence is beyond question that, at the time of the date of this instrument, Mrs. Abigail R Dolton was entirely capable of contracting. There is not the slightest evidence that she was resting under any compulsion. Upon the contrary, her action was that which would be most natural un•der the circumstances. The gift was complete, and nothing was left undone. Martha Colton had the control and custody of the ■securities, and the instrument of gift seems to have been delivered to her. She accepted the gift, because it appears that she collected the income from these securities, and appropriated" it to her own use. And the gift went into immediate and absolute effect, because, as has already" been stated, Martha Colton had the securities, and used them as her own. It is true that there is a claim that, at the time the deed of gift bears date, Abigail R Colton was non compos mentis. But this rests entirely upon the evidence of an alleged declaration of Martha. It is true, there was also some evidence upon the part of Mr. Hunt that, prior to the date of the deed of gift, Abigail R. Colton was in poor health, and her mind began to weaken, and that her daughter never permitted her to go out alone, and also that Martha had stated that her mother had been an invalid all her (Martha’s) life,—that is, for forty years,— and had been in feeble health for a great many years. But this by no means establishes the fact that Mrs. Colton, in 1883, was incompetent to contract. There is no proof that her mind was in such an enfeebled condition that she could not transact business understanding^. It is a common experience that persons’ faculties begin to weaken without their being idiots.

It is further urged that there was no evidence of a delivery of the instrument in question, and that the paper was neither witnessed nor acknowledged,—which has nothing whatever to do with the delivery. The fact is that the paper was found in the daughter’s desk (it is true, upon the premises in which both mother and daughter resided), where it had been in the daughter’s possession. In the absence of other proof, the finding of a deed in the possession of the grantee named in the deed is considered reasonably strong evidence that it has been delivered. The same is true in regard to the claim that there was no delivery of the property by Abigail, and acceptance by Martha. Martha had the property, used it as her own, received the income, and deposited it to her own credit, in her individual account. It seems to us, taking into consideration all these facts, that but one conclusion can be arrived at, and that is the one reached by the learned court below. The judgment appealed from should be affirmed, with separate bills of costs to both respondents. All concur.  