## Facts

- Edward Kresser and Della Pyper each had two sons from prior relationships before they married.
- Edward’s sons, Delbert Kresser and Edward Kresser (plaintiffs), were Della’s step-sons.
- Della’s sons, Vaughn Peterson and Glade Arthur Peterson (defendants), were her natural sons.
- Edward and Della owned their home as joint tenants with right of survivorship; when Edward died, Della became the sole owner.
- After Edward’s death, Della executed a will that devised the home to all four sons.
- Seven years later, Della executed a warranty deed conveying the home to herself and her two sons (the Petersons) as joint tenants with right of survivorship.
- Della executed the deed in front of a notary and witnesses and stated that she intended her sons (the Petersons) to have the property and that she did not intend her step-sons (the Kressers) to have any interest.
- Della recorded the deed.
- Della deposited the recorded deed in a bank safe-deposit box leased in the names of Della and the Peterson sons as joint tenants; the rental agreement gave the joint tenants access rights to the box.
- The Peterson sons did not know the deed had been placed in the box and did not have a key, though the lease authorized them as joint-tenant lessees.
- After Della’s death, the Kressers sued, claiming a one-half interest in the home under the will and arguing the deed had not been validly delivered.
- The trial court dismissed the suit, concluding the deed removed the home from Della’s probate estate; the Kressers appealed.
- The Kressers conceded there was no fraud, undue influence, or incompetence; the only dispute was delivery of the deed.

## Issues

1. Whether Della’s warranty deed conveying the home to herself and her two sons as joint tenants was validly delivered, thereby taking the property out of her probate estate and defeating the step-sons’ claim under the earlier will.

## Decision

- The Utah Supreme Court affirmed the dismissal of the Kressers’ suit.
- The court held the deed was validly delivered.
- Because the deed created a joint tenancy with right of survivorship among Della and the Peterson sons, the home did not pass through Della’s estate under the will.

## Legal Principles

- A deed is effective only if it is delivered—actually or constructively—in a manner showing the grantor does not retain exclusive control or a right to reclaim it.
- Recording a deed generally creates a presumption of delivery.
- Constructive delivery can be established when the deed is placed where the grantees have a legal right of access, even if they are unaware of the deed’s location or do not physically possess it.
- When the grantor conveys property to herself and others as cotenants, delivery to one cotenant (or retention by the grantor as a cotenant) can operate as delivery to all cotenants.
- The grantor’s contemporaneous statements showing an intent to make a present transfer are strong evidence supporting delivery and can show the conveyance was inter vivos rather than testamentary.

## Conclusion

The court concluded that Della’s execution and recordation of the deed, her placement of it in a jointly leased safe-deposit box to which the grantee joint tenants had legal access, and her clear statements that she intended her sons to have the property supported a finding of valid delivery; therefore, title passed by survivorship under the joint tenancy and the step-sons took nothing under the earlier will.


Kresser v. Peterson, 675 P.2d 1193 (1984)