
    Anna Yutte, Plaintiff, v. John Yutte et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1902.)
    Dower — Defeated by the husband’s deed before marriage — Delivery to a third person.
    An owner of two lots separately conveyed one of them to each of his two sons, they actually paying the consideration of one dollar, and he in their presence handed the deeds to an attorney requesting him to hold them during the grantor’s life, at his death record and deliver them to the grantees, the grantor during his life to receive the rents and profits. He subsequently married, thereafter died, and thereupon the attorney recorded the deeds and delivered them to the grantees.
    Held, that the title passed to the sons when the grantor delivered the deeds, in their behalf, .to the attorney, and that therefore when the widow subsequently married the grantor there was in him no estate to which dower could attach.
    Action for dower.
    Norman W. Kerngood, for plaintiff.
    McOrea & Taylor (William G. McCrea, of counsel), for defendants.
   Keener, J.,

This is an action by a widow to establish a right to dower in two parcels of real estate.

The real estate in. which dower is claimed was purchased in April, 1900, by Henry Yiitte, the plaintiff’s deceased husband. On September 18, 1900, he executed deeds conveying these two lots to his sons John and Henry, the principal defendants iw. this action. The sons were present at the execution of the deeds and actually paid the consideration of one dollar expressed tl erein. After the deeds were executed and acknowledged and while his sons were still present, the grantor handed them to one Forrest, an attorney, asking Forrest to take possession of them and to hold them during his lifetime and at his death to record and deliver them to the grantees. He also stated to Forrest that he wished to have the rents and income from the property during his lifetime. On September 19, 1901, a year after the execution of the deeds, Yiitte married the plaintiff; and died intestate, November 21, 1901. A few days thereafter, Forrest had the deeds recorded and delivered them to the grantees in accordance with the grantor’s instructions. The defendants concede that the grantor collected and expended the rents from the two houses and made repairs on them and kept them insured in his own name during his lifetime.

It is alleged in the complaint that the grantor represented to the plaintiff that he owned this real estate and that she Avas induced to marry him by this representation. It is also alleged in the complaint that the grantees were guilty of fraud and conspiracy in obtaining possession of the deeds and in their subsequent dealings with the property. But these allegations were all denied by the answer and upon the trial no proof was offered as to any of them.

The sole question arising from these facts, therefore, is whether Yiitte, ¿he grantor, was seized of this real estate at any time during the marriage. Laws of 1896, chap. 547, § 170.

Whether the deed in this case is to be treated as a present conveyance or as a delivery to a third person for subsequent delivery to the grantees, the grantor seems to have divested himself of title when he handed the deeds over to Forrest. There are facts here sufficient to make the transaction a present delivery to a stranger for the use of the grantees, which is tantamount to a delivery to the grantees themselves. Church v. Gilman, 15 Wend. 656; Crain v. Wright, 114 N. Y. 307. The additional directions to Forrest are not necessarily inconsistent with a present delivery. Crain v. Wright, 114 N. Y. 307, 311. The grantees were present and paid the agreed consideration, so that there can be no question as to their acceptance of the conveyances. The directions to Eorrest might well evidence nothing further than an amicable arrangement to keep the deeds from record during the grantor’s life, in order that no question should arise as to the rights which it was agreed he should have during his lifetime. Such being the case, the grantor was not seized of this land when he married the plaintiff, and she took no right of dower in it.

But assuming there was no present delivery, the other possible interpretation of this transaction is equally fatal to the plaintiff’s claim. It may be treated as a delivery of a deed to a third, person to deliver to the grantees upon the happening of a contingency, namely, the death of the grantor; a contingency certain as to event but uncertain as to date.

When a deed is delivered in escrow, that is, to be delivered to the grantee by the depositary upon the performance by the grantee of some condition, and the grantor dies and the grantee thereafter performs the condition, a delivery to him is effectual to pass title. The passing of title is deemed to he as of the date of the delivery of the deed to the third person. Perryman’s Case, 3 Pep. 84. This doctrine has also been applied where the contingency expressed was the death of the grantor. Tooley v. Dibble, 2 Hill, 641, 643; Hathaway v. Payne, 34 N. Y. 92, 105, 113; Campbell v. Morgan, 68 Hun, 490, 495. The result from these authorities seems to be inevitable. The grantor divested himself of title when he delivered the deeds to Forrest. Hence the plaintiff has no dower right in this real estate.

Judgment for the defendants, with costs. Settle decision and final judgment on two days’ notice.

Judgment for defendants, with costs.  