Law School Case Brief
Kresser v. Peterson - 675 P.2d 1193 (Utah Sup.Ct. 1984)
An effective deed requires delivery, actual or constructive, without exclusive control or recall. Recording generally presumes delivery. Delivery to one cotenant or reservation of an estate connotes delivery to all cotenants, where the grantor is also the grantee.
When the stepsons' father died, the testatrix executed a will that devised real estate jointly owned by the couple to her sons and the stepsons. Seven years later, she executed a warranty deed to the same property, naming herself and her sons as grantees, with right of survivorship. She recorded the deed and placed it in a safety deposit box under a lease agreement with a bank. The sons did not know that the deed was in the safety deposit box and had no key to the box despite the lease being signed by them as joint tenants with the testatrix. Access to the box was reserved to any single one of the joint tenants.
Was there valid delivery of the deed from the testatrix to her sons?
The court noted that an effective deed required delivery, actual or constructive, without exclusive control or recall. Delivery to one cotenant or reservation of an estate connoted delivery to all cotenants, where the grantor was also the grantee. Affirming, the court found that the most significant indicia of delivery was the statement of the testatrix at the time she signed the deed that she intended her sons to have the property. Delivery was reflected by recordation of the deed and deposit in the safety deposit box with written authority that any of the grantees, who also were tenants under the box rental agreement, had exclusive right of access to the box.
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