Bury v. Young

McFarland, J.

(dissenting). — I dissent. In the first place, I think the evidence fails to show that when Hiukson handed the deed to Hazen he parted with all control over it, etc., and also that the court erred in ruling out certain evidence offered for the purpose of showing what Hinltsoifis intention was. Furthermore, there was no delivery of the deed to the grantees named therein while the grantor was alive; and there could have been none after he was dead. It is contended that giving the deed to Hazen was a present delivery to the grantees; but the express instruction was that he was to keep it until after Hazen’s death, and then to deliver it to the grantees, so that the delivery to the grantees was not to take place during Hinkson’s lifetime. Hazen was not a grantee, and had no interest in the grant. He was a mere agent of Hiukson, and upon the death of the latter the agency ceased. The deed was a mere attempt at testamentary disposition of property, and not being in the form prescribed for the execution of a will, was void. He ordered his agent to return the deed to him, and the agent should have obeyed; for if it was of any value he had as much right to revoke it as he would have had to revoke a will. But it was of no value, for it provided for an impossible thing — the delivery of a deed by an agent after the death of his principal. If one desires to avoid the administration of his estate in probate he may grant his property to a trustee, to whom a present delivery of the deed must be made; or he may grant his property reserving a life estate, but there must be a present delivery of the deed to the grantees. The method of doing so, claimed to be effective in the case at bar, would not only lead to innumerable frauds, but is inconsistent with the fundamental principle that a dead man can do no act, and can have no agent to act for him. There are authorities, no doubt, holding differently from the views above expressed, but in my opinion they do not correctly declare the law, and should not be followed. I think the judgment should be reversed.