The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1898-10-15
AN IMPORTANT DECISION.
INVOLVES A RIGHT TO DISPOSE
OF ONES OWN PROPERTY.
What Constitutes a Surrender of
control of a Deed Made Be-
fore Death. ;.

the following decision, which VIII Ge
found of much interest to the general
public, as it deals with ante-mortefn
disposition of property. H. G. Soule
was attorney for the plaintiff:
In the Superior Court of the State
OF California, in and for the county
Of Sacramento.
James NJ. Short, executor of the last
will of Elizabeth Young, deceased,
plaintiff, VS.. Elizabeth Noble ct al, de-
PENDANTS.
This is an action to quiet title to
tract of land by the plaintiff, as execu-
tor of the last will of Elizabeth Young,
deceased, against the defendants.
Defendant Elizabeth Noble files
separate answer, her co-defendant haV
ing filed a disclaimer, wherein she
claims title by virtue of a certain dc1d
executed by the decedent in her life
time purporting to convey the prem
lses in question to her.
On the 4th day of November, 1913,
Mrs. Elizabeth Young who was III
feeble health, sent for the plaintiff, who
for a long number of years had been
her confidential agent and adviser. It
appears she had considerable business,
large property interests, and that for
the past ten or twelve years he had
attended to it for her. When he called
at her home she told him that she
contemplated giving the "home place"
premises in question to the defendant,
who was her daughter. She asked him
If she could make out a deed, and de-
stroy it again if she chose. He told
her that she could do so if she did not
deliver the deed, or have it placed on
record. She instructed him to have 4
deed prepared. He thereupon went to
the office of Notary Public, caused a
deed to be drafted and proceeded in
company with the Notary to her home.
She discovered upon having the deed
read that it contained more land than
she intended, so that it became neces-
sary to draft another deed. Plaintiff
returned to the Office of the Notary,
drew a proper deed, then returned to
the residence of Mrs. Young, who
signed the deed and acknowledged the
same. Plaintiff returned to the office
of the Notary, who attaches his official
certificate and seal, gives it to PLAINTIFF,
who returns with the deed to Mrs.
Young and places it in her hands She
held 1t awhile and handed it back to
plaintiff and said: Il want you to keep
that deed, and allow no one to know
it is in existence and to allow no one
to have it except myself, and if it is
in your hands at my death have it
placed upon record, or place it upon
record, or give it to Sis" isis" was
the defendant, Elizabeth Noble. He
took the deed in his possession and re-
tanned it some weeks, until the Both
of December, 1898, when she directed
the plaintiff to destroy the deed on
which day he did so. In April, 1896,
Mrs. Young departed this life. She
continued in possession of the premises
from November, 1898, up to the time
OF her death. Plaintiff was named as
executor of the will. Defendant having
etup some claim to the premises under
this deed, this suit was a necessary Sc
quence.
The question, and only question in
volved was whether the deceased by
her actions lost dominion over the
property.
The defendant claims by authority Of
Bury VS.. Young, 9S Cal, 453; Ord VS..
Ord, 80 Cal, 523 Wittenbrock vs.
Cass, 40 Cal; Ruis VS.. Dow, 113 Cal,
496, and Kenny VS.. Parks, Vol. 16,
Cal. Decisions, SO, she is entitled 20 2
judgment.
The case of Bury VS.. Young, in the
9Sth Cal, is the pioneer and leading
case upon the subject. In that case
one NJ a. Hinkson, suffering from a
paralytic stroke. called to his bedside
one Hazen, an attorney. Acting upon
his advice, he executed a deed to his
two daughters, Mrs. Bury and Mrs
Young, plaintiff and defendant. This
deed he gave to Hazen, with inslruc-
tions not to record it, but to deliver Il
to the grantees after his death He
recovered from his illness, and en-
deavored to secure the deed from
Hazen, who refused to surrender l.:
He subsequently executed VIII
wherein he gave all his real property
to Mrs. Young. Upon his death Hazcn
delivered the deed to Mrs. Bury. The
court held that Hinkson by his act in
delivering the deed to Hazen parted
with all control; that it was delivered
without power to recall it, and shat
the delivery thereby became complete
The Supreme Court afterwards. in the
case of Wittenbrock VS.. Cass, 10 Cal,
in confirming the case of Bury w.
Young, say that the parting OF all
dominion over the deed. and reserving
AAO light " iCCdi IL OI after us pro-
visions, or to have or enjoy any other
or further interest in the premises than
to hold the use thereof until his death,
constituted a valid delivery of the
deed, which vests the title immediately
in the grantee" 1t will be found in
the other cases cited that the grantor,
when he delivered the deed to the third
party, that in no case was there a
right reserved to recall the deed. but
the deed was absolute and without any
qualifications so far as the grantors
control was concerned.
But the case under consideration pre-
sents different state of facts. From
the first visit of her agent, Mr.. Short,
to her house until he finally returned
to Mrs Young with the deed complete
in all its details, was only a few hours.
and all on the same day, and the ?rst
and last conversation between Mrs.
Young and her adviser and agent must
be taken together as a part of the