UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
: September 4, 1941.
KEATING ET AL.
On Petition for Rehearing.
It is not necessary for us to say that, in the case of a gift to the donor and the donee as joint owners, the donor can in no circumstances retain custody of the property on the theory that the possession of one joint donor is the possession of both; although In re Bates' Estate, Sur., 21 N.Y.S.2d 306, affirmed 259 App.Div. 968, 20 N.Y.S.2d 1012, seems to hold that delivery is necessary even in the case of a gift by a donor to himself and another as joint donees. The plaintiff's letter of December 21, 1936, which authorized the decedent to collect the interest on the mortgages and to keep it as her own, was incorporated into the succeeding assignments, regardless of their formal terms; and the plaintiff never in equity became a joint owner at all. The assignments gave her nothing but an interest in survivorship; that is, a contingent remainder. While a donor may by deed create such a future interest as well as a present interest, there is no reason for saying that delivery is any less necessary in one case than in the other; and certainly the donor's possession cannot be imputed to the donee.
CLARK, Circuit Judge (dissenting).
It still seems to me that the real issue in the case is not faced in the opinions herewith. Were the deeds of assignment effective to convey the title they purported to convey? I do not see how a negative answer is possible on the precedents or, I may add with all deference, in reason. And if the deeds were effective, the plaintiff's letter of December 21, 1936, was clearly a direction in aid of their purpose and intent, not in opposition thereto. The statements made in this opinion as to delivery in the case of joint owners I should feel were somewhat open to question or at least were incomplete; but since I have felt throughout that this was a case of conveyance by valid deeds of assignments, rather than of delivery of chattels, I do not feel it necessary to pursue that matter.
© 1998 VersusLaw Inc.