dissenting: Because I am convinced that this case has been decided incorrectly I feel compelled to dissent and will state my views briefly:
The facts are not in dispute and neither is there any dispute as to what the established rules of law are with respect to what constitutes a valid delivery of a deed. The general principles are set out in the opinion for the court and I have no quarrel with them. I disagree, however, that the facts compel the conclusion there was a valid delivery of the deed in question.
*71The important inquiry here is whether the mother gave the deed to Laverna intending thereby to vest in Kenneth, immediately, title to the remainder. If the mother retained “control” of the deed the situation was substantially the same as though she had held it in her own possession. Where a grantor deposits a deed with a third person to be turned over upon his death to the grantee there is a good delivery if he thereby surrenders all control over it, but not otherwise. (Young v. McWilliams, 75 Kan. 243, 245, 246, 89 Pac. 12.)
In Wuester v. Folin, 60 Kan. 334, 56 Pac. 490, it was held (syl. 1) that before a deed can operate as a valid transfer of title there must be a delivery of the instrument which becomes effective during the life of the grantor, and in the course of the opinion it was said:
“It is not essential, however, for the grantor to deliver the instrument to the grantee in person. An unconditional delivery to a third person for the use and benefit of the grantee, where the grantor intends to divest the title and to part with all control over the instrument, is ordinarily a sufficient delivery. What constitutes a sufficient delivery is largely a matter of intention, and the usual test is,
“Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby divest himself of title? When the deed has passed beyond the control of the grantor, and he has placed it in the hands of a third person with a declared or manifest purpose to make a present transfer of the title, a formal acceptance by the grantee is not required.” (p. 337.)
In Worth v. Butler, 83 Kan. 513, 112 Pac. 111 (opinion denying rehearing 84 Kan. 887, 112 Pac. 836) it was said:
“While delivery is largely a matter of intention, still it must appear, . . that the deeds have passed beyond the control of the grantor. ‘In this case it distinctly appears that they had not. The grantor was exercising an active control over them a few days before her death, and they were still under her dominion and in her possession when death came.” (p. 520.)
In Hush v. Reeder, 150 Kan. 567, 95 P. 2d 313, after citing many of our decisions, it was said:
“Under these authorities when the owner of real property executes a deed for it and places it in the hands of some third person to be delivered to the grantee after the death of the grantor, in order to make such delivery effective the grantor must have parted with the possession of and all the dominion and control of the deed.” (p. 576.)
In Hoard v. Jones, 119 Kan. 138, 237 Pac. 888, it was held that ordinarily the question of the delivery of a deed is one of fact to be determined by the jury or trial court from all of the evidence pertaining to the matter, but that where the facts are not controverted it is a quesion of law to be determined by the court.
*72Laverna had a safety deposit box in the bank. The mother had none. She gave the deeds to Laverna with “no instructions whatsoever.” The only reasonable inference to be drawn is that she gave them to Laverna for “safe keeping.” That she did not intend thereby to surrender all possession and control over them is indicated by the fact that in 1951 she requested Laverna to get them for her, mentioning that she “intended to sell her Kansas real estate.” From then on until her death four years later the deeds were in her possession and were found among her personal effects after her death. I concede that the fact the deed in question later came into her physical possession would not in and of itself defeat or nullify a prior valid delivery — if in fact one was made — but in my opinion there was absolutely no evidence to establish a delivery, actual or constructive, to Kenneth during her lifetime. This is not a case such as where a grantor executes a deed and places it out of his reach and in the hands of a third party with directions to deliver it to the grantee after the grantor’s death. (Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, 9 L. R. A. (NS) 317; In re Estate of Hulteen, 170 Kan. 515, 227 P. 2d 112; Hicklin v. DeVore, 179 Kan. 345, 295 P. 2d 668.) All of the facts point to just the opposite.
In the opinion for the court attention is called to the fact the mother reserved a life estate, and mention is made that if she intended no present interest to vest in Kenneth then what was her purpose in making the reservation. Perhaps so, but is it not more logical to conclude that if she intended to reserve to herself only a life estate and to vest the remainder immediately in Kenneth, she would have delivered the deed to him at that time, in which event she still would have her life estate, if that is all she desired to retain in the property?
In the early case of Burton v. Boyd, 7 Kan. 17 (1871), it was held that if a deed which shows upon its face that it was signed and acknowledged but does not show upon its face or elsewhere that it was ever delivered, be found in the possession of the grantor at the time of his death, the presumption from such fact is that the deed was never delivered, and the burden of proof rests with the party claiming that it was delivered to prove delivery. (Syl. 5.)
In 26A C. J. S., Deeds, § 184, p. 17, the rule is thus stated:
“Where a deed which has been duly executed and acknowledged is subsequently found in the possession of the grantor, a presumption arises that it was never delivered, and the burden of proof rests on the party claiming under the *73deed. This rule applies where a deed is found among the papers of the grantor after his death.”
To the same effect see 16 Am. Jur., Deeds, § 386, p. 657.
In my opinion the evidence in this case, when measured in the light of established rules of law on the subject, fell far short of showing a valid delivery of this deed during the lifetime of the grantor. I think the trial court reached a correct decision and that the judgment should be affirmed.