
    Imra Saltzsieder, by Oscar Wagner, Her Guardian ad Litem, Respondent, v. Frederick W. Saltzsieder (Formerly Called Frederick W. Saltzsieder, Jr.) and Others, Appellants, Impleaded with Herbert G. Saltzsieder, Individually and as Executor of and Trustee under the Last Will and Testament of Frederick W. Saltzsieder, Deceased, Defendant, and Marie Saltzsieder and Charles R. Bauerdorf, as Executor of and Trustee under the Last Will and Testament of Frederick W. Saltzsieder, Deceased, Respondents.
    First Department,
    May 7, 1915.
    Real property—execution of deed and will, the former to be held in escrow until death of grantor —• effect of control over lands by grantor during his lifetime, execution of subsequent wills and birth of child by second marriage.
    A widower, who was about to marry, conveyed real property to his three sons in consideration of “ love and affection and the sum of one dollar,” and at the same time and with the aid of the same attorney executed a will whereby he bequeathed to his prospective wife, in case she should become such, a certain sum of money in lieu of dower, and all the rest of his property was left to his three sons, equally, with a proviso that if any child or children should thereafter be born to him, said child or children should receive a share equal to one-half of what each of his sons should receive. After the execution of these two instruments, the widower delivered them to his attorney and told him to hold the deed until his death and then deliver it “ to his sons, the three boys.” After the delivery of the papers and the second marriage, and the birth of a child thereby, the grantor continued in possession of the premises conveyed, mortgaged, leased and dealt with them as his own, and also executed other wills.
    
      Held, that the instructions given the attorney in regard to the delivery of the deed made that transaction complete in itself, disconnected from any association with the will and operated at once to create a title in the sons which became effective upon his death. Neither his control over the property during his lifetime, nor his execution of subsequent wills, nor the birth of the child thereafter, operated to defeat the title thus created.
    Appeal by the defendants, Frederick W. Saltzsieder and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 25th day of June, 1914, on the decision of the court after a trial at the New York Special Term.
    
      Leo C. Weiler, for the appellants.
    
      Robert E. Deyo, for the plaintiff, respondent.
    
      Henry L. Scheuerman, for the respondent Marie Saltzsieder.
   Dowling, J.:

Appeal from a judgment declaring void, and directing the cancellation of record of, a certain deed made by Frederick W. Saltzsieder to Fi’ederick W. Saltzsieder, Jr., Walter H. Saltzsieder and Herbert Gr. Saltzsieder, dated May 21,1898, and conveying premises at the northeasterly comer of Twenty-fourth street,and Fourth avenue in the city of New York, in consideration of “ love and affect ion and the sum of one dollar lawful money of the United States.” The grantees in this instrument were the grantor’s sons, then all minors. Frederick W. Saltzsieder, on May 21, 1898, was engaged in the grocery business in New York city. He was a widower, with the three sons enumerated, and was about to marry Marie Schneider, whom he actually married on the twenty-sixth of the same month. On the first named date he executed the deed in question in the presence of his attorney, William 0. Timm, who had drawn it for him, and who took his acknowledgment thereto; at the same time he executed his last will and testament, drawn by the same attorney, whereby he bequeathed to his prospective wife, Marie Schneider, in case she should become his wife, the sum of $25,000, to be received and accepted by her in lieu of dower, and all the rest of his property was left to his three sons equally, with a proviso that ■ if any child or children should thereafter be born to him, said child or children should receive a share equal to one-half of what each of his sons should receive. After execution, Saltzsieder delivered the deed and will to his attorney, Timm. The latter’s testimony as to what then transpired so far as he was allowed to give it, is as follows: “After he [Saltzsieder] had signed this paper [the deed] he handed it to me and told me that 1 should hold it until his death. * * * He said to hold it until his death and hand it over then to his sons, the three boys. * * * Q. Did Mr. Saltzsieder say anything to you with respect to that deed that he should get it back again, that he might recall it from you ? * * * A. He didn’t say anything.” Timm then went with Saltzsieder to a directors’ meeting, the former having possession of the papers, which he took with him to his home that night and next morning brought them down to his own office, put them in one envelope and kept them there until he read of Saltzsieder’s death, when he called up the eldest son on the telephone and finally delivered the deed and will to him. Saltzsieder died March 13, 1913. Meantime, after the delivery of the papers to Timm, the second marriage of Saltzsieder and the birth of a child on May 10, 1899, Saltzsieder continued in possession of the premises conveyed by the deed and dealt with them as his own. In April, 1902, he executed a new will, the contents of which are unknown, and which was revoked by a still later will. On December 29, 1903, he executed a mortgage on the premises for $25,000, and from the proceeds of that loan the existing mortgage of $15,000 appears to have been paid off. On May 3, 1911, he executed an additional mortgage for $15,000. In both of these his wife joined, and on closing both of these loans he made the customary affidavits of title. On October 18, 1911, he made a new will, whereby one-third of the net income from his estate was left to his wife, one-tenth to his oldest son, and the balance was divided equally between his two other sons and his daughter. During his lifetime Saltzsieder had made some six leases of the property in question, covering the period from 1898 to 1917, and also paid the taxes, interest and repairs, and collected and appropriated the rents. When he died he left him surviving his widow, three sons by his first marriage, and a daughter by his second marriage. The respondents contend that the will and deed executed on May 21, 1898, must be considered as one instrument, revoked by the birth of the plaintiff and by the making of the subsequent wills, that there was never any valid delivery of the deed putting it beyond the grantor’s power to revoke or reclaim it; and that decedent retained control of the deed through the simultaneous execution of the will.

We do not find any force in these contentions. The deed in question was delivered to Timm by Saltzsieder to be delivered to the grantees after the grantor’s death, without any reservation whatsoever of control over the deed, and this was sufficient to pass title to the grantees when so delivered to them by Timm. The fact that Saltzsieder retained control over the property during his lifetime does not impair the effect of the deed, for he never intended his control to cease until his death, when title was to vest in his sons. In Stonehill v. Hastings (202 N. Y. 115) Margretta Todd, the owner of the premises there in question, executed a deed of the same to her daughter Bosalie, in consideration of natural love and affection, and delivered the same to one Lockwood, “with instructions to hold the same during the lifetime of the grantor, * * * and upon or after the death of the said Margretta Todd, to deliver the said deed of the said premises to her said daughter. ” Lockwood did hold the deed during the grantor’s lifetime and delivered it after her death to her daughter. In that case the owner had likewise “ retained the active and undisputed control, possession, management and ownership of the said premises down to the date of her death.” The only differentiation between the cases seems to be that there was no proof of any mortgaging of the premises by the owner, which has no bearing on the question of the validity of the deed, which was not to take effect until the owner’s death; the execution of a will at the same time as the deed, neither instrument, however, containing any reference to the other; and that in the Stonehill case the court refused to find that the deed was deposited with Lockwood by the grantor as her agent or that she at all times retained control of the aforesaid deed and exercised over it the power to recall it. The court in the case at bar made findings that “there was no delivery of the said deed by the decedent to Mr. Timm as agent of the grantees,” and that “ decedent at all times retained control of said alleged deed deposited as aforesaid with Mr. Timm,” but these findings are not only without evidence of any kind to support them, bub are absolutely opposed to the evidence. There is, therefore, no material difference between the Stone-hill case and the case at bar. In the former Judge Hiscock said (p. 120): “The conclusion that the title vested in the grantee from the time of the death of her grantor was part of a conclusion of law made for the purpose of fixing the time from which the grantee should receive the rents and profits, and I do not understand that there is any dispute that she was properly limited in her right to these to the period after her grantor’s death. The other conclusions that the deed was to take effect upon the death of the grantor and that the latter died seized of the premises are in accordance with the fact of the final delivery of the deed and the law as established by well-considered cases. Hathaway v. Payne (34 N. Y. 92) considered a deed like the present one, which was delivered by the grantor to a third party to be delivered to the grantee after the former’s death. Chief Judge Derio wrote for a majority of the court as follows: They (the authorities) do * * * prove that a deed may be delivered to a third person, as this was, with instructions to be finally delivered to the grantee after the death of the grantor. In such a case, the weight of authority is, that no title passes until the final delivery, and that then, and thereafter, the title is, by relation, deemed to have vested as of the time of the first delivery to the third person. If it were an original question, I should suppose that such a transaction was of a testamentary character. * * * But the cases establish the Tule as I have stated, and they should not now be disturbed.’ (p. 113.) The same doctrine was laid down in Rosseau v. Bleau (131 N. Y. 177). It was there held that an action might not be maintained by the representatives of a deceased person to set aside as fraudulent against creditors a deed not delivered until after the latter’s death for the reason that such a deed did not become operative during life and that, therefore, the grantor died so seized that the liens of creditors attached under the statutes relating to real estate of deceased persons.”

In the case at bar there is no reason to hold that the execution of the will, simultaneously with the deed, constituted a part of the same testamentary disposition, or tended to prove a reserve power of control over the deed, nor are there any facts proven justifying such a presumption. The deed accomplished a result quite independent of that worked by the will, and operated upon different portions of testator’s property. The instructions given in regard to the delivery of the deed made that transaction complete in itself, disconnected from any association with the testamentary disposition of Saltzsieder’s property, and operated at once to create a title in the sons which was to become effective upon his death. Neither his control over the property itself, during his lifetime, nor his execution of subsequent wills, nor the birth of a child thereafter, could defeat the title thus created.

The judgment appealed from will, therefore, be reversed, with costs, and judgment directed in favor of appellants. The following findings of fact are reversed: 7th, 9th, 20th, 22d; also so much of the 3d finding as finds that Frederick W. Saltzsieder executed the deed in question in anticipation of his marriage with Marie Saltzsieder; also so much of the 5th finding as finds that Frederick W. Saltzsieder executed the deed in question upon the advice of William C. Timm; also so much of the 13th finding as finds that Marie Saltzsieder joined in the execution of the mortgage referred to, to release her inchoate right of dower in the said lot to the extent of said mortgage; also so much of the 14th finding as finds that the defendant Marie Saltzsieder joined in the execution of the mortgage therein referred to, to release her inchoate right of dower to the extent of the said mortgage; also so much of the 15th finding as finds that Frederick W. Saltzsieder made the affidavits referred to, in connection with each of the mortgages set forth in the 13th and 14th findings of fact, to induce the mortgagee to advance the money secured by said mortgages; said findings and parts of findings being reversed as without any evidence to support them. All the conclusions of law numbered I to XVI, inclusive, are reversed as unwarranted. The 27th finding of fact is amended by adding after the words “ That the said William C. Timm, having received said instrument,” the following: as set forth in the 26th finding.” The following findings of fact requested by appellants are found: 7, 9,10, and also the following conclusions of law as requested by them: 1, 2, 3 and 4.

Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.

Judgment reversed, with costs, and judgment directed in favor of appellants as indicated in opinion. Order to be settled on notice.  