tention is strong prima facie evidence that the instrument was intended to operate as a will, not as a deed: Schuffert v. Grote, 88 Mich. 650; Stilwell v. Hubbard, 20 Wend. (N. Y.), 44. It would hardly be likely, however, that such a deed would be upheld as a will merely on the strength of this presumption. It is difficult to see what principle could be invoked to support such a ruling. But, though the presumption is that a deed retained by the grantor in his possession has not been delivered, there may be facts connected with and qualifying that retention, which amount to a valid delivery, as when the deed has been recorded: Glaze v. Ins. Co., 87 Mich. 349; S. C., 49 N. W. Rep. 595; Colee v. Colec, 122 Ind. 109.

III. So far, the question of the validity of the deeds under consideration has been almost purely a question of construction, dependent upon the language of the instrument and its legal effect, the only question of fact being as to the delivery. But in the class of deeds we are now about to discuss the intention of the grantor, in the previous cases to be gathered from the instrument itself, and so a question of law, becomes also a question of fact to be decided from the circumstances attendant upon the execution and delivery of the deed. These deeds arc those which, though absolute in form, are delivered to a third person, with the understanding that they are not to be delivered to the grantee until the death of the grantor, thus virtually securing a ife estate to the latter.

The first question is, of course, whether such a delivery is sufficient

to pass the title to the grantee. It is beyond controversy that delivery need not be made to the grantee in a deed personally; it may be made to another for his use, and it makes no difference when he receives the dced: Sncathen . Sneathen, 104 Mo. 201; or, for that matter, whether he receives it at all. The title, passes with the delivery to the depositary, unless the grantor retains some power of control or revocation, in which case there is no delivery: Duer v. James, 42 Md. 492; Bovee v. Hinde, 135 III. 137. The delivery, then, is sufficient, unless the instrument is to be considered as testamentary. But we have already seen that a mere postponement of the enjoy ment of an estate granted will not make the instrument conveying it a testamentary paper: See cases cited ante, I (a). The whole question, then, resolves itself into this: Did the grantor intend to convey a present estate to the grantee, merely postponing his enjoyment of it until his death, or did he intend the estate to vest only upon that event?

There are two classes of deeds, to which these bear a close resemblance :-escrows, and deeds to be delivered on the happening of some future event. But there is a clear distinction between the two. An escrow, the second delivery of which is dependent upon the performance of a condition, of necessity can vest no estate until the performance of that condition; and the title, therefore, passes only upon the second delivery, that from the depositary to the grantee, except in rare cases, where the rights of third parties have intervened, or the grantor has done some act which would defeat the

estate granted, if the strict rule were adhered to; and in which the title is accordingly held to vest by relation to the first delivery: Price 7. Pitts., Ft. Wayne & Chic. R. R. Co., 34 I. 13; Shirley . Ayres, 14 Ohio, 307. But when the final delivery of a deed only awaits the lapse of time, or some contingency, as, for example, when the grantee shall come to town, the title is held to vest in the grantee upon the delivery to the depositary, and the latter is only a trustee of the deed for the benefit of the grantee: 13 Vin. Abr. tit., Faits or Deeds, p. 23. pl. 9; Bryan v. Wash, 7 Ill. 557; Cook . Hendricks, 4 T. B. Monroe (Ky.), 5co; contra, Demesney. Gravelin, 56 III. 93.

The class of deeds under consid cration can hardly be properly classed with escrows, though this has sometimes been done; for there is, in these, no condition to he performed by the grantec. And further, if they are so classed, it would be difficult to find any principle upon which they could be held valid for the title to the estate conveyed by an escrow dates only, as has been said, from the second delivery, except when there are circumstances that would render the strict application of the rule inequitable. Applying this rule, where no rights of third parties had intervened, the title conveyed by deeds of this class would vest only after the death of the grantor, and that would make them operative only as testamentary dispositions. Even when the rights of third parties had intervened, there would be no true equity in following the rule as to escrows, for as these deeds are almost always purely voluntary, the grantee can have no superior equity against in

tervening rights. But, on the other hand, these deeds present an almost perfect analogy with deeds to be delivered on the happening of some future event, both in their nature and their operation; and should be preferably classed with them.

Accordingly, it is the general doctrine that when a deed, absolute on its face, is delivered to a third party, to be by him delivered to the grantee after the death of the grantor, the delivery is absolute, if the grantor retains no control or dominion over the deed in the hands of the depositary; the effect of the conveyance is to vest the estate in the grantee, subject to a life estat: in the grantor; the depositary becomes a trustee of the deed for the grantee; and the delivery of the deed by him, in pursuance of the grantor's instruction, is, to all intents and purposes, as valid as if made by the grantor during his life: Doe v. Bennett, 8 C. & P. 124: McCalla v. Bane, 45 Fed. Rep. 828; Stewart 7. Stewart, 5 Conn. 317; Hockett v. Jones, 70 Ind. 227; Squires . Summers, 85 Ind. 252; Smiley 7. Smiley, 114 Ind. 258; Goodpaster. Leathers, 123 Ind. 121; Hinson 7. Bailey (Iowa), 35 N. W. Rep. 626; Wheelwright v. Wheelwright, 2 Mass. 447; Foster 7. Mansfield, 3 Metc. (Mass.) 412; O'Kelly . O'Kelly, 8 Metc. (Mass.) 436, 439; Hatch . Hatch, 9 Mass. 307, Latham v. Udell, 38 Mich. 238; Williams . Latham (Mo.), 20 S. W. Rep., 99; Parker v. Dustin, 2 Fost. (N. H.) 424; Hathaway . Payne, 34 N. Y. 92; Diefendorf v. Diefendorf, 8 N. Y. Suppl. 617; Crain v. Wright, 114 N. Y. 307; Crooks v. Crooks, 34 Ohio St. 610; Ball v. Foreman,

37 Ohio St. 132; Geisinger's Est.. 11 Pa. C. C. R. 168; Stephens z. Huss, 54 Pa. 20; Stephens Rinehart, 72 Pa. 434; Albright 2. Albright (Wis.), 36 N. W. Rep. 254; Bury . Young (Cal.), the principal case, 33 Pac. Rep. 338. But see Stone . Duvall, 77 I. 475.

Even if the depositary deliver the deed to the grantee before the death of the grantor, in breach of his trust, the delivery will be good to vest the estate at the death of the grantor: Wallace

Harris, 32 Mich. 380. But he will not be allowed to oust or disturb the latter during his lifetime: Alsop. Eckles, 81 III. 424. The rights of third persons, in the ab sence of fraud, will not be allowed to intervene: Smiley 7. Smiley, 114 Ind. 258; contra, Davis v. Cross, 14 Lea (Tenn.), 637. And a conveyance of the estate, made by the grantee, before the death of the grantor, is sufficient to pass his title thereto Tooley. Dibble, 2 Hill (N. Y.), 641. When part of the land conveyed was taken by a railroad company subsequent to · the delivery of the deed to the depositary, the damages therefor were held to go to the grantees of the estate, not to the executor of the grantor: Geisinger's Est.. 11 Pa. C. C. R. 168.

If, however, the grantor manifest an intention that no present estate shall vest in the grantee, the delivery to the depositary is not a delivery to him, and his title can date only from the second delivery. In such a case, the depositary is the agent of the grantor, not of the grantee, and, his authority being revoked by the death of his principal, his delivery of the deed after the death of the latter, can vest no title in the grantee. Accordingly,

any retention of control or dominion over the deed in the hands of the depositary, which is acknowledged on all sides to show an intention that the estate shall not finally pass from the grantor at the time of the delivery to the depositary, will make the instrument. a mere testamentary disposition, and therefore invalid as a deed: Wellborn v. Weaver, 17 Ga. 267; Stinson z. Anderson, 96 Ill. 373: Hale t. Joslin, 134 Mass. 310: Weisinger

Cock, 67 Miss. 511; Baker v. Haskell, 47 N. H. 479; Prutsman v. Baker, 30 Wis. 644. The reservation of a right on the part of the grantor to withdraw the deed at any time before his death: Brown v. Brown, 66 Mc. 316. The delivery to the depositary with instructions to deliver it to the grantee, "provided it is not previously recalled:" Cook . Brown, 34 N. H. 460. And directions as follows: "Take this deed and keep it. If I get well I will call for it. If I don't, give it to Billy (the grantee):" Williams v. Schatz, 42 Ohio St. 47, have been held to show such a retention of control as will render the deed nugatory.

As the grantor, in such a case, has the right to rescind or recall the deed at pleasure, the mere fact that the grantee gets possession of it and records it will not confer any title on him: Pennington v. Pennington, 75 Mich. 600.

A few old cases are in opposition to this rule, holding that when the deed is delivered to the depositary, subject to the grantor's control, the delivery by the former to the grantee after the death of the grantor will pass the title, if that right of control is never, in fact, exercised. But these rest upon very insufficient grounds, and can

not prevail against the weight of authority cited above: See Belden v. Carter, 4 Day (Conn.), 66; Shed 2. Shed, 3 N. H. 432 (expressly overruled in Cook v. Brown, 34. N. H. 460); Morse . Slason, 13 Vt. 296.

Though such an instrument is not valid as a deed, it may, nevertheless, if executed with the proper formalities, as we have seen, be good as a will; but in that case will of course be subject to all rights of third persons that have intervened between the date of its delivery to the depositary and the death of the grantor: Jones Loveless, 99 Ind. 317.

It only remains to consider the manner in which such a deed, when valid, takes effect. Anumber, perhaps the majority of the cases, hold that it vests the title by relation to the first delivery. But there are a very respectable list of well-considered cases that hold that the title vests in the grantee immediately on the delivery to the depositary. This seems to be in every regard⚫ the better view. The cases that hold the title to vest by relation have undoubtedly been misled by the impression that these deeds were similar to an escrow, an impression that we have seen to be without foundation. The doctrine of relation is even in the case of an escrow only permitted to defeat intervening rights; and that would be a poor excuse in the case of a voluntary deed. Further, the first delivery in case of an escrow is conditional, and cannot vest title except by relation; while in the cases under consideration, the first

delivery must be absolute in order to vest any title, by the second delivery, and if so, what is to prevent its vesting the title of itself, without regard to the second? On every ground, then, the latter doctrine is more consonant with reason, principle and justice.

To sum up the results of the preceding discussion: 1. Any deed, which purports to convey a present estate, even though that estate is not to be enjoyed until the death of the grantor, is valid as a deed, unless never delivered, either to the grantee or some persou for him. 2. A deed, delivered to a third person with instructions not to deliver it to the grantee till after the death of the grantor, is valid ⚫as a deed, if that delivery be absolute; and vests a present estate in the grantee, the depositary being a trustee of the deed for him; but is of no effect as such, if the delivery is made subject to the subsequent control or dominion of the grantor. 3. Any instrument, evincing an intention to make a post-mortem disposition of property, though nugatory as a deed, will be valid as a testamentary paper, if executed with the requi. site formalities of a will. 4. But a deed, purporting to convey a present interest, which is never delivered, but simply retained in the possession of the grantor till his death, whatever may be presumed to have been his intention in so retaining it, will be of no effect, either as a deed or as a will, tinless there is some direct proof that it was intended to operate as the latter. R. D. S.