
    Andrus R. Wilcox, Appellant, v. First Methodist Episcopal Church and Society of the Village of Henderson, Respondent, Impleaded with Jacob Sauer and Others, Defendants.
    
      Delivery of a deed—what, delivery to a third person, hy whom, after the. death of the grantor, the deed is delivered to the grantee, is sufficient;—what indorsement upon the envelope inclosing the-deed does not make the delivery conditional.
    
    May ¿9, 1902, Mary E. Eggleston, who was then the "owner -of a house, which she intended to give tó a church corporation, executed a deed of the house , to James L. McCumber and others as trustees of the church corporation. The deed was placed in a sealed envelope bearing the following indorsement:
    “At the time of my death present these papers to James L. McCumber, unless recalled by me., (Signed) MARY E. EGGLESTON.”
    
      It was then delivered to one Buell, a trustee .of the church corporation, who took it to his home and placed it in his safé. On October 38, 1903, some months later, the envelope was returned- to the said Mary E. Eggleston and was placed by her in her secretary. A day or two later Buell called upon her and was assured by her that the papers were as she desired. The deed, with the envelope unbroken, lay upon a table, and Mrs. Eggléston said that she would give them to a Mrs. Rice, who would deliver them to Mr. McCumber.
    November 4, 1903, Mrs. Eggleston became seriously ill and talked with friends present about her approaching death and asked that certain relatives be informed of her condition. Soon after noon of that day Buell was sent for and asked 3irs. Eggleston if she had given the papers to Mrs. Rice. Mrs. Eggleston said she had not, but would. Mrs. Rice then, at Mrs. Eggleston’s request, went to 3Irs. Eggleston’s secretary, got the deed, and after the death of Mrs. Eggleston, which occurred a few days thereafter, delivered it to Mr. McCumber, who accepted it on behalf of the church corporation.
    
      Held, that the transaction of November fourth constituted an unconditional delivery of the deed and vested the title to the property conveyed in the church corporation;
    That the indorsement upon the envelope in which the deed was contained did not, under the circumstances, make the delivery a conditional one.
    Williams, J., dissented.
    Appeal by the plaintiff, Andrus R. Wilcox, from a judgment of the Supreme Court in favor of the defendant, the First Methodist Episcopal Church and Society, entered in the office of the clerk of the county of Jefferson on the 18th day of July, 1904, upon the decision of the court, rendered after a trial at the Jefferson Special Term, dismissing the complaint upon- the merits.
    The action was commenced on the 1st day of April, 1903, to recover the possession of certain premises described in the complaint and for damages for. the retention, which the defendant claimed to hold by reason of a certain deed which purported to be executed by one Mary E. Eggleston, deceased, which deed bears date the 29th day of May, 1902. The only question involved was whether or not such deed was delivered to the defendant.
    
      George W. Reeves and Kellogg & Brown, for the appellant.
    
      A. M. Leffingwell, for the respondent.
   McLennan, P. J.:

The plaintiff is one of the heirs at law of Mary E. Eggleston, deceased, who died intestate as to her real estate on the 11th day of ' ¡November, 1902, aged seventy-four years, and who in.her lifetime was the owner in fee of a house and lot in the village of Henderson, Jefferson county, ¡N. Y., of the value of about $1,000, the possession of which this action is brought to recover.

Pn the 29th day of May, 1902, the deceased, who was tlien-in poor health, one Dr. Olin F. Buell, a trustee of the defendant corporation, acting as scrivener, made á will of what little personal property she. owned, and executed a deed of the house and lot in question to James L. McOümbér and others as trustees of the' respondent corporation. The. two papers, the will and the deedj were ihen and there placed in an envelope, which wás sealed and delivered by the deceased to Dr. Buell. On the envelope was the following indorsement

“At the time of my death present these papers to James L. McCumber, unless recalled by me.

“.(Signed) MARY E. EGGLESTON.”

Such package wait taken, by Dr. Buell to his home and placed in his safe. On the 28th day of October, 1902, the deceased sent by messenger to Dr. Buell for the papers and they were returned to her: Upon, their return they were placed by her in her secretary. A day' or two later Dr. Buell called upon her and she assured him that the papers were as, she desired. ¡The papers were t^en upon the table,' the envelope unbroken, and the deceased said : “ I will ‘ put them into- this secretary and when Mrs. Rice comes down I will give them to her.” And the deceased further stated that Mrs. Ijtice was to deliver them to Mr. McCumber. Thereafter and on the morning of ¡November 4, 1902, the deceased became more seriously ill and Mrs. Rice, an,old friend and neighbor of hers,, who had stayed with her the night before, was sent for: During the day the deceased talked with friends present about her approaching death and asked that certain relatives be informed of her condition. Soon . after noon of that day Dr. Buell was sent for, and himself and á Rev. Mr. Phelps and Mrs1. Rice met at the bedside of the woman. At that time Dr. Buell asked Mrs. Eggleston if, she had giyen the papers to Mrs. Rice. She said she had not but would, and that they were in the secretary where, she had left them the other .day.' The doctor then asked if she wanted Mrs. Rice 'to go and get them, and she answered “ Yes.” Such answer was repeated to the like question by him. Mrs. Rice then went to the secretary, got the papers, and' after the death of Mrs. Eggleston, which occurred a few days, thereafter, delivered the deed in question to Mr. McCumber, who accepted it for and on behalf of the defendant corporation. The evidence clearly shows that it was the' intention of the deceased that at her death the property in question should become vested in and belong to the defendant corporation. This intention is evidenced by numerous conversations and declarations made by her during her last sickness and even previous to that time, and it is not seriously contended that the conveyance to the defendant was not exactly in accordance with the wishes and intention of the deceased. The only contention on the part of the appellant is that there was hot such delie very of the deed as gave effect to, such purpose and intention.

We deem it unnecessary to determine the effect, of the transaction of the 29th day of October, 1902, between the deceased and Dr. Buell, which it is claimed constituted a delivery of the deed and vested the title of the property in the defendant corporation, because the learned trial court did not base its conclusion that a delivery had been made upon such transaction.- The finding of fact is, “ That on November 4, 1902, the said Mary E. Eggleston being then seventy-four years of age and in her last illness, and not expecting to recover an'd being of sound mind and under no restraint, voluntarily delivered the said package (which contained the will and the deed in question and upon which was the indorsement above quoted) which had remained unbroken containing the said deed, to - Mrs. Lucinda B. Rice of said Henderson, and directed her to deliver the same to the said McCumber, for the use and benefit of the said defendant church, and thereafter, and on November lltli, 1902, the said Mrs, Rice actually delivered the said deed to McCumber, who accepted the same for the said defendant church, but the said delivery was not made until a few hours after the death of Mary E. Eggleston, which occurred on the day last mentioned.”

We think such finding of fact was fully justified by the evidence. In short, the evidence clearly tends to show that the deceased intended that the house and lot in .question should go to and belong to the defendant upon her death. She had executed a deed in due form giving, effect to such, intention.' Oh November 4, 1902, such deed was in her possession. It, is true it was in- a .séaled envelope indorsed subject.to recall, but fully Understanding and appreciating the situation, and without reference to the indorsement which had been previously put upon the envelope in which said deed was contained, she directed lief friend,.Mrs. Rice, to take the deed from the place in which it was and to deliver it to the defendant upon her death.

We think, under such. circumstances, the indorsement upon the envelope in which the deed was contained did not make it a com ditional delivery, but that, at the time, the deceased appreciated that lief death was approaching and that her direction to Mrs. Rice to take the deed from the place in which it had been kept and ’deliver it to Mr. McCumber, representing the defendant, upon her death, was an' Unconditional delivery of the deed and suchas vested the title in the defendant corporation.

We conclude that the judgmentxappealed from should be affirmed, with costs.

All concurred, except Williams, J., who dissented.

Judgment affirmed, with costs,  