Curriden v. Chandler , 79 N.H. 269 ( 1919 )

The conveyance by John P. H. Chandler to his wife and children is valid. The fact. that there was no delivery of the property conveyed does not render the transfer invalid. The property was trust funds, and was in the possession of trustees. It was not in the power of the grantor to make a manual delivery of the property. He did all that it was possible for him to do in making and delivering to Madeleine V. Chandler a conveyance under seal, and that was sufficient. The deed under seal took the place of a physical transfer of the property. It was the best transfer that the grantor could make under the circumstances. The delivery of a deed under seal is deemed to be a delivery of the property conveyed. Irons v. Smallpiece, 2 Barn. Ald. 551; Kekewich v. Manning, 1 De G. M. G. 187; Perry on Trusts (6th ed.) s. 102; Hogue v. Bierne, 4 W. Va. 658, 671; Matson v. Abbey, 70 Hun 475, 477; McCutchen v. McCutchen, 9 Port. (Ala.) 650; Walker v. Crews, 73 Ala. 412; McEwen v. Troost, 1 Sneed 186; Caines v. Marley, 2 Yerg. 582.

It is sought to set the conveyance aside because it was not supported by a valuable consideration. No consideration is required to render this transaction valid. The conveyance was a voluntary gift. And a gift not only does not require a consideration but there can be none, for a gift is "a voluntary transfer of his property by one to another, without any consideration or compensation therefor." Gray v. Barton, 55 N.Y. 68, 72; 2 Bl. Com. 440; 20 Cyc. 1192. A gift perfected by delivery of a deed of gift is complete, although made without consideration. Ham v. Van Orden,84 N.Y. 257, 269; Fulton v. Fulton, 48 Barbour 581, 590.

The deed of settlement being valid, it becomes necessary to determine who are the beneficiaries under it, and when their title to the property vests. The vital inquiry is whether the language of the conveyance limits the beneficiaries to the wife of the grantor and their children born before the termination of the life estates, or whether children, who might be born after the expiration of the life estates, take. The concluding sentence of the deed of settlement is as follows: "the property hereby conveyed to be held by the said Madeleine V. Chandler and her child or children in equal shares per capita on and after the expiration of all life interests in said property." Giving this language its ordinary and usual meaning (Perry v. Company,78 N.H. 346) Madeleine V. Chandler and her child or children were to receive the property at the expiration of the life estates. In other words, the termination of the life estates was to determine the time when the property should vest in the beneficiaries. This would indicate that only the children born prior to the conclusion of the life estates were to participate in the settlement. If such were not the intention, the deed of settlement would not contain the provision that the property should vest in the beneficiaries at the expiration of the life estates. A careful consideration of the language of the conveyance leads to the conclusion that only the children born prior to the expiration of the life estates can take as beneficiaries under the deed of settlement. As no children were born between the date of the instrument, and the termination of the life estates, the time fixed for the per capita division, it is unnecessary to determine the effect of a voluntary assignment, not expressly made by way of trust, for the benefit of unborn children.

The petitioners are advised that the deed of settlement is valid; and that they should distribute the property conveyed by it, in equal shares to Madeleine V. Chandler, and to the guardian of John P. H. Chandler, Jr.

Case discharged.

All concurred.