## Facts

- Harold and Mildred Rosengrant, an older married couple with no children, jointly owned a farm in Oklahoma.   
- They had several nieces and nephews; one nephew, Jay (J.W.) Rosengrant, lived nearby and helped them with farm chores, especially after Mildred became seriously ill.   
- In June 1972, Harold and Mildred executed a warranty deed purporting to convey the farm to Jay; the deed was prepared by Harold’s banker at Farmers and Merchants Bank.   
- At the bank, Harold handed the deed to Jay, but Harold and Mildred immediately instructed Jay to leave the deed with the banker for safekeeping and not to record it until “something happened” to them (i.e., upon their deaths).   
- The deed remained at the bank; Harold retained the ability, through the banker arrangement, to retrieve or cancel the deed at any time before death.   
- After executing the deed, Harold and Mildred continued to live on and operate the farm, paying taxes and treating the property entirely as their own, with no change in possession or apparent ownership.   
- When Mildred’s death became imminent and later when Harold developed terminal illness, they consulted an attorney, who suggested that if Harold anticipated problems he should execute a will; no will conveying the farm to Jay was executed.   
- After Harold died in 1978 (Mildred having predeceased him), Jay obtained the deed from the bank and recorded it, claiming title to the farm.   
- Other nieces and nephews (including Walter H. Rosengrant and others) brought suit to cancel the deed, arguing there had been no valid legal delivery and thus no transfer of title.   
- The trial court held the deed invalid for failure of legal delivery and ordered it cancelled; Jay appealed to the Oklahoma Court of Appeals.   

## Issues

1. Whether Harold and Mildred effected a valid legal delivery of the deed to Jay so as to presently transfer an interest in the farm during their lifetimes.  
2. Whether the arrangement—retaining control, use, and a right of retrieval while making the deed operative only upon their deaths—constituted an impermissible attempt to make a will by deed rather than a valid inter vivos conveyance.  

## Decision

- The Oklahoma Court of Appeals affirmed the trial court’s judgment cancelling the deed.   
- The court held there was no legal delivery because Harold and Mildred did not intend to presently and irrevocably divest themselves of ownership; instead, they retained control, possession, and a right to reclaim the deed.   
- The court concluded that conditioning the deed’s effectiveness on the grantors’ deaths and continued use of the property rendered the transaction an attempted testamentary disposition, which was invalid because it did not comply with will formalities.   

## Legal Principles

- The controlling inquiry in deed delivery is the grantor’s intent at the time of delivery; there must be an intent to make a present, irrevocable transfer of an interest in the property.   
- A valid legal delivery requires that the grantor relinquish dominion and control over the deed and the property; retention of a right to retrieve the deed or to prevent recordation is inconsistent with present transfer.   
- When a grantor delivers a deed but reserves a right of retrieval, makes the deed operative only upon death, and continues to treat the property as his own, the transaction is in substance an attempt to make a will by deed, which is not permissible under property law and must comply instead with the formalities of testamentary instruments.   
- Courts look at surrounding circumstances—such as continued possession, payment of taxes, and instructions about post‑death recordation—to determine whether an instrument is truly an inter vivos conveyance or a disguised testamentary disposition.   

## Conclusion

The deed from Harold and Mildred to Jay Rosengrant was invalid for lack of legal delivery because the grantors retained control of the deed and the farm, intended the transfer to take effect only at their deaths, and sought to accomplish a testamentary transfer without complying with will formalities. The court therefore affirmed cancellation of the deed and denied Jay’s claim to title.


Rosengrant v. Rosengrant, 629 P.2d 800 (Okla. Civ. App. 1981)