Jenkinson v. Brooks

Grant, C. J. (after stating the facts). 1. Delivery of a deed to a third party, to be by him delivered to the grantee after the death of the grantor, is valid. Hosley v. Holmes, 27 Mich. 416; Wallace v. Harris, 32 Mich. 380. These authorities are approved in subsequent decisions of this court. The same rule prevails elsewhere. Wheelwright v. Wheelwright, 2 Mass. 447 (3 Am. Dec. 66); Mather v. Corliss, 103 Mass. 568; Stone v. Duvall, 77 Ill. 475; Brown v. Westerfield, 47 Neb. 399 (53 Am: St. Rep. 532). The question of delivery in such cases is one of intent. Burk v. Sproat, 96 Mich. 404. We think it entirely clear that Mr. Brooks, recognizing that death was near, intended this disposition of his property to be final, and that he intended to place the [111] deeds and other papers in the hands of Mr. Young without any idea of recalling them, or making any other disposition of his property. The facts that he remained in possession of the homestead, and that he requested or instructed Mr. Young to place the deeds to his wife upon record, or that Mr. Young, at his request, brought the papers to him for his examination, are not inconsistent with the act of delivery. 2. It is urged that the testimony of Mr. Young was incompetent, because he is a party in interest, within the meaning of the statute prohibiting such persons from testifying to facts equally within the knowledge of the deceased. Mr. Young is made a mere naked trustee in one of the conveyances. The deed conveyed to him no interest whatever in the property. He was not, therefore, disqualified as a witness. Watson v. Russell, 18 Iowa, 19; Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254 (20 Am. Dec. 100); Sears v. Dillingham, 12 Mass. 360; Bap. Wit. § 18. Decree affirmed, with costs. The other Justices concurred.