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John Smith, now deceased, executed a quitclaim deed in favor of D. He instructed his attorney, Richard Freedman, not to record the deed, saying that he would be back in touch regarding recording. Freedman testified that he would not have recorded the deed without further instruction from Smith. A few weeks before his death, Smith asked his nephew, Gerald Buscemi, to have Freedman record the deed. Buscemi did not contact Freedman before Smith's death. After Smith died, Freedman's office mailed the unrecorded deed to D, who recorded it. P estate executed a quit-claim deed to the same property to himself, individually, and recorded it. The trial court ruled that the Smith deed to D failed for lack of delivery. Both deeds were declared void and the court let title be determined in pending probate proceedings. D appealed.

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