This was an action for the partition of certain real estate of which Hiram Hoffman died seized.
The respondents alleged that Hiram Hoffman left other real estate which should have been included in the suit, and that the plaintiff and his wife sometime after Hiram Hoffman’s death had caused to be recorded a deed conveying to them certain premises in the town of Westchester, and that the said deed was never delivered by Hiram Hoffman to the plaintiff and his wife^ and was, therefore, void, and asked to have the premises described in said deed included in the description in the complaint and partitioned and sold.
The issue tried was whether said deed was delivered by said Hiram Hoffman, its execution being admitted.
*85The deed was in the possession of the plaintiff and produced by him upon the trial.
This was presumptive evidence of delivery, and with proof that the grantor therein intended that he and his wife should have the property, and that the deed was drawn under the direction of the grantor, justifies a finding that it is a valid deed.
There was only one witness whose testimony tended to support the respondents’ claim. She was a sister of the plaintiff, and an interested party, and was contradicted in several material points by many witnesses. This witness testified to a conversation with the plaintiff, wherein he made some admissions. The plaintiff and his wife flatly contradicted her. She is also contradicted by her brother. Hiram H. Hoffman, and a disinterested witness, Robert P. Baxter; besides the story she told was hardly probable. We think the decided weight of evidence was in favor of the plaintiff.
In addition it may be said that a holding that the deed never was delivered finds that the plaintiff and his wife were both guilty of perjury, and the former also guilty of larceny.
The presumption against the commission of crime is so strong as not to be overcome, except by evidence of a high degree of credibility.
. We also think it was error to exclude the declarations of Hiram Hoffman made at the time he executed the deed; they were made to characterize the act he was then doing, and were clearly competent and relevant. (Strough v. Wilder, 119 N. Y. 530; 7 Am. & Eng. Ency. of Law, 71.)
There must be a reversal of the judgment and a new trial.
Brown, P. J., and Cullen, Bartlett and Hatch, J J., concurred in the-result, on the ground that it was error to exclude evidence as to what was said by the grantor at the time the deed was executed.
• Judgment reversed and new trial granted, costs to abide the event.