delivered the opinion of the court.
The objection to John Waldron as, a competent witness, on account of his being an inhabitant of Dover, cannot prevail. Since the trial we have had occasion to make a full examination of the principles and precedents connected with this point, and they may be seen at length in the case of Eustis vs. Parker, (see page 273.) In considering the objection as to the uncertainty of the estate which Richard Waldron intended to convey to his children, it ought not to be forgotten that all doubtful expressions in deeds between individuals are to be construed favourably to the grantee(1.) and that every deed is, if possible, to be made operative.— Shep. T. 253.-4 M. R. 137, 143,-7 do. 428, 527.—Ch. Pl. 241.—Cow. 600. Goodlittle vs. Bailey.-Willes 675. Doe vs. Salkeld.
It seems clear that the grantor intended to convey “in the buildings,” a several estate to Job Waldron. But the situation of the particular quantities of “land” intended for each of the grantees, and the nature of the interest conveyed in those quantities, are not so obvious. — These quantities are not distinguished by separate boundaries, nor are they described as certain shares of the whole farm. The deed, however, proceeds to state that they are “ in common and undivided.” It is not improbable, therefore, that the grantor may have expected they would be so held : and as the whole farm contained “ 104 acres,)’ the difficulty in ascertaining* the proportion of each grantee would not be insuperable.— Excluding the buildings, the proportion of Richard, jr. in the land would be twenty-four one hundred an r fourths— [356]*3560p ..j_fágan six 0ne hundred and fourths — and that of jQ^ se¥eaty-four one hundred and fourths. After a survey, if the farm was found to contain a larger or less quantity of land, the proportions would remain in the same ratio/and would be sufficiently certain fox a tenancy in common. — Bac. Grant. H. 3.
When we remember that in the interior of the country it is not the practice to employ professional men to write many deeds, and that the deed in this case was intended to be a substitute for a will, the circumstance does not appear unnatural, that a several estate in a part of the premises to one person, and an estate in common in the rest to him and other persons, should both be conveyed in one instrument.
But were it necessary, for the purpose of making the deed operative, to resort to a different construction, it would not be a very forced one to pass by the deed a several estate to each of the grantees. “ To R. W. jr.” “ 24 acres of land,” not bounded by the grantor, but to be “ in common and undivided” till it was elected in which part of the farm to make the location of it: “6 acres to Abigail' ' in a similar manner ; and the ‘‘ remainder of the farm, with the buildings, to J. W.” — Upon this hypothesis the species of estate conveyed is different: but it accords almost as well with the language used in the premises, and seems justified by good authorities. — Co. Lit. 145, a. — Bac. Gr. H. 3. — 1 Leon.— 30 Sir Walter Hungerford’s case.
Nor is it an objection to this construction, that the grantees never elected their several portions; because, during the existence of their right to elect, a division became unnecessary in consequence, of a conveyance of the whole premises town of Dover (2.), For the same reason, too, it is not material: to consider whether R. jun. must elect first, or whether the election- first made shall stand: though lord Coke- observes, in Heyward's case,(3) “ that if a man makes a lease for* life of two acres, the remainder of one acre to I. S. [357]*357and of the other to .1. W., he who first makes election shall enjoy the one ‘ acred ” '
The exception as to the want of a delivery of the deed remains to be considered ; and our opinipi in relation to it has not been formed without sotne hesitancy.
The very derivation of the word “ deed” implies that it must be given or delivered ;• (4) and though in this case the possession of the deed by the grantees would be presumptive evidence, of a delivery by the grantor, yet as the mode of obtaining that possession has been explained by the witnesses, it must still be decided whether, upon all the facts, the delivery was a legal one.
It is not necessary, says Shepard,(5) that a deed be delivered to the grantee in person ; it “ may be delivered to any stranger” “ for and in the behalf and to the use of him to whom it is. made.”
We apprehend that the delivery is as much the act of the grantor as is the signing or sealing ; and consecpently the stranger who receives it may at that time possess no authority from, the grantee(2.) AJ1 that is incumbent on the grantee, in order to perfect the delivery,, is that he accept, or assent to, what has been done by the grantor before the latter revokes his intention to- convey(3.)
That this delivery, also, to a stranger was t!‘ for and in behalf and to the use of him to whom the deed is made,” may be shown by either actions or words which evince- the intent of the grantor (4.)
If we> then, compare the testimony in this case- with these principles, the formal delivery of the deed to Jo/m Waldron seems to have been with the express intení on the part of the grantor that it should avail to the benefit of the grantees. It is true that for safe custody the deed was returned to the grantor’s wife, and was afterwards deposited by them with Stevens ; yet the design to treat it as executed and kept till the grantor’s death, for “ the use” of the grantees, is apparent throughout the whole transaction. It was “ in lieu of a devise to operate after his decease ;”(5) and the settlement [358]*3580f estates by deeds rather than by willij is, according to lord Coke, (6) to be encouraged. The possession of the deed by the wife and then by Stevetis, after its delivery to John Wal-dr on, furnishes n$ evidence that is irreconcilable with this supposition: because the wife was expressly requested to keep it with care ; and it was handed to Stevens, with the same view, uno intuitu, if we regard either the directions given or the manner of its being sealed up. The actual disposition, made of the deed by those with whom it had been lodged, is another strong indication of the understanding of them and the grantor, at the time of the delivery, as to the future disposition of it. Under all the circumstances, therefore, we feel justified in the opinion that in the first instance this was not the case of a deed, “ delivered to a stranger without any” “ declaration, intention or intimation” that it was for or “ to the use” of the grantees : (7) and, that in the gll|;)Sequent transactions there was no evidence of a revocation of the original intent of the grantor.
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delivered the opinion of the court.
The objection to John Waldron as, a competent witness, on account of his being an inhabitant of Dover, cannot prevail. Since the trial we have had occasion to make a full examination of the principles and precedents connected with this point, and they may be seen at length in the case of Eustis vs. Parker, (see page 273.) In considering the objection as to the uncertainty of the estate which Richard Waldron intended to convey to his children, it ought not to be forgotten that all doubtful expressions in deeds between individuals are to be construed favourably to the grantee(1.) and that every deed is, if possible, to be made operative.— Shep. T. 253.-4 M. R. 137, 143,-7 do. 428, 527.—Ch. Pl. 241.—Cow. 600. Goodlittle vs. Bailey.-Willes 675. Doe vs. Salkeld.
It seems clear that the grantor intended to convey “in the buildings,” a several estate to Job Waldron. But the situation of the particular quantities of “land” intended for each of the grantees, and the nature of the interest conveyed in those quantities, are not so obvious. — These quantities are not distinguished by separate boundaries, nor are they described as certain shares of the whole farm. The deed, however, proceeds to state that they are “ in common and undivided.” It is not improbable, therefore, that the grantor may have expected they would be so held : and as the whole farm contained “ 104 acres,)’ the difficulty in ascertaining* the proportion of each grantee would not be insuperable.— Excluding the buildings, the proportion of Richard, jr. in the land would be twenty-four one hundred an r fourths— [356]*3560p ..j_fágan six 0ne hundred and fourths — and that of jQ^ se¥eaty-four one hundred and fourths. After a survey, if the farm was found to contain a larger or less quantity of land, the proportions would remain in the same ratio/and would be sufficiently certain fox a tenancy in common. — Bac. Grant. H. 3.
When we remember that in the interior of the country it is not the practice to employ professional men to write many deeds, and that the deed in this case was intended to be a substitute for a will, the circumstance does not appear unnatural, that a several estate in a part of the premises to one person, and an estate in common in the rest to him and other persons, should both be conveyed in one instrument.
But were it necessary, for the purpose of making the deed operative, to resort to a different construction, it would not be a very forced one to pass by the deed a several estate to each of the grantees. “ To R. W. jr.” “ 24 acres of land,” not bounded by the grantor, but to be “ in common and undivided” till it was elected in which part of the farm to make the location of it: “6 acres to Abigail' ' in a similar manner ; and the ‘‘ remainder of the farm, with the buildings, to J. W.” — Upon this hypothesis the species of estate conveyed is different: but it accords almost as well with the language used in the premises, and seems justified by good authorities. — Co. Lit. 145, a. — Bac. Gr. H. 3. — 1 Leon.— 30 Sir Walter Hungerford’s case.
Nor is it an objection to this construction, that the grantees never elected their several portions; because, during the existence of their right to elect, a division became unnecessary in consequence, of a conveyance of the whole premises town of Dover (2.), For the same reason, too, it is not material: to consider whether R. jun. must elect first, or whether the election- first made shall stand: though lord Coke- observes, in Heyward's case,(3) “ that if a man makes a lease for* life of two acres, the remainder of one acre to I. S. [357]*357and of the other to .1. W., he who first makes election shall enjoy the one ‘ acred ” '
The exception as to the want of a delivery of the deed remains to be considered ; and our opinipi in relation to it has not been formed without sotne hesitancy.
The very derivation of the word “ deed” implies that it must be given or delivered ;• (4) and though in this case the possession of the deed by the grantees would be presumptive evidence, of a delivery by the grantor, yet as the mode of obtaining that possession has been explained by the witnesses, it must still be decided whether, upon all the facts, the delivery was a legal one.
It is not necessary, says Shepard,(5) that a deed be delivered to the grantee in person ; it “ may be delivered to any stranger” “ for and in the behalf and to the use of him to whom it is. made.”
We apprehend that the delivery is as much the act of the grantor as is the signing or sealing ; and consecpently the stranger who receives it may at that time possess no authority from, the grantee(2.) AJ1 that is incumbent on the grantee, in order to perfect the delivery,, is that he accept, or assent to, what has been done by the grantor before the latter revokes his intention to- convey(3.)
That this delivery, also, to a stranger was t!‘ for and in behalf and to the use of him to whom the deed is made,” may be shown by either actions or words which evince- the intent of the grantor (4.)
If we> then, compare the testimony in this case- with these principles, the formal delivery of the deed to Jo/m Waldron seems to have been with the express intení on the part of the grantor that it should avail to the benefit of the grantees. It is true that for safe custody the deed was returned to the grantor’s wife, and was afterwards deposited by them with Stevens ; yet the design to treat it as executed and kept till the grantor’s death, for “ the use” of the grantees, is apparent throughout the whole transaction. It was “ in lieu of a devise to operate after his decease ;”(5) and the settlement [358]*3580f estates by deeds rather than by willij is, according to lord Coke, (6) to be encouraged. The possession of the deed by the wife and then by Stevetis, after its delivery to John Wal-dr on, furnishes n$ evidence that is irreconcilable with this supposition: because the wife was expressly requested to keep it with care ; and it was handed to Stevens, with the same view, uno intuitu, if we regard either the directions given or the manner of its being sealed up. The actual disposition, made of the deed by those with whom it had been lodged, is another strong indication of the understanding of them and the grantor, at the time of the delivery, as to the future disposition of it. Under all the circumstances, therefore, we feel justified in the opinion that in the first instance this was not the case of a deed, “ delivered to a stranger without any” “ declaration, intention or intimation” that it was for or “ to the use” of the grantees : (7) and, that in the gll|;)Sequent transactions there was no evidence of a revocation of the original intent of the grantor.
This delivery, too, was afterwards ratified by the grantees as they received the deed from those with whom it was deposited, placed it upon record, and have since conveyed the land to the vouchees.
■ In this view of the case the facts do not render it necessary for us to investigate the distinctions between an absolute and conditional delivery, or one in the nature of an escrow. But these distinctions are well discussed in Shep. T. 58. — Perk. sec. 143, and in the following precedents, which in many respects resemble the case under consideration.-2 Mass. R. 447. Wheelwright vs. Wheelwright.-9 do. Hatch vs. Hatch.-4 Day 66.
Let judgment he entered on the verdict.
) Co. Lit. 36. a.-Bac Gra. J. 1.