Mr. Justice Phillips
delivered the opinion, of the court:
It is urged by appellants that the decree of the circuit court dismissing the bill in this case for want of equity should be reversed for the reason that the deed in question was obtained by fraud and undue influence on the part of the grantee; that such deed was never operative for the reason that it Was not delivered, and that it was a testamentary devise, and void, not having been attested as the statute directs, and for the reason it was to be in force from and after the decease of the grantor, and not before.
The questions as to whether or not the deed was obtained by fraud and undue influence, and whether or not it was ever legally delivered, are questions of fact, which must be determined from the record presented to us. The son, who was the grantee in this deed, lived on the farm with his father, who was advanced in years and unable to perform hard labor, which necessitated that the son take the charge and management of the farm from year to year, which he did do for a number of years. The son was the only member of the family who resided with his father, and it appears from the record that about the time some improvements were necessary the subject as to the future ownership of the farm was talked of between the father and son, as it had been on a number of occasions before. The father expressed" a desire to make such provision as would insure his son the future ownership of this land, and expressed a desire to execute a will or some paper which would accomplish such result. An old friend and acquaintance of the family, who was a notary public and banker of Marseilles, was solicited to come to the farm and prepare the necessary papers. On September 21,1894,—the date of the deed in controversy, —in pursuance of this invitation he went to the farm and was told by Lewis Latimer, the grantor, that he desired to arrange Ms matters in such shape there would be no trouble over his property after his death. Upon being asked if he desired to make a will he said he thought he did. Upon being informed by the notary that witnesses would be necessary to a will, and, in reply to an inquiry of Lewis Latimer as to whether any expense would be incurred in the transaction after his death, receiving the information that expense of probation of the will and administration would be necessary, he then declared he desired to arrange the matter in some other way. He was told the only other method would be to make a deed, with a proviso that he should have the control and use of the property so long as he lived, and that the deed should not take effect until after his decease. To this he expressed his satisfaction, and said that was the way he wanted it, at the same time suggesting that he desired each of his daughters to have the sum of $1000, saying that he believed that was all they were entitled to. Upon the suggestion by the notary that he had considerable personal property out of which this might be paid, he responded that he did not have very much, and desired Ms son, James, to have that, and to pay to each of his daughters the sum of $1000. The deed was then prepared by the notary in the ordinary form, containing the description of the land and the following clause: “This conveyance to be in force from and after my decease, and not before.” Also the further "clause: “The said James A. Latimer to have all of my personal estate, and to pay to each of my daughters, Catherine A. Earing and Eunice A. Flint, the sum of one thousand dollars ($1000) after my decease.” The notary having been furnished, from other papers, the description of the lands, the deed was prepared and read over to the grantor, and he was asked if that was the way he desired it. The grantor then signed the deed and directed the notary as follows: “I want you to take that deed and keep it, and after my decease to deliver it to James Latimer.” Something was said regarding a consideration, whereupon the son, James Latimer, in the presence of the notary gave to his father a silver dollar, which the old gentleman laughingly took, making some jocular remark. The deed was taken and retained by the notary public upon the suggestion and request of the grantor, as above stated, Lewis Latimer remarking at the same time that the notary, being a banker, had a safe place or vault in which to keep it. Within less than one year after the execution of this deed and its delivery to Morey, James A. Latimer, the grantee, died, leaving his widow and children, the appellees in this case. Prior to his death he had made some improvements on the farm. He sunk a well at an expense of about §400, besides which he had furnished lumber, assisted in the work and boarded the men and teams for a number of months while they were engaged in the work. At the time of his death the work of boring the well was not completed, and the widow of James Latimer inquired of Lewis Latimer, who had continued to live with his son and family from the time of the execution of the deed until the death of the son, whether or not she should continue the work. His answer was, “of course,” remarking at the same time that the farm would be hers and the children’s some time, and stating further that he desired her to take care of him, and that he wished the best of care. Before James Latimer died he had borrowed §97 from his father to make payment of some expense on this well. This amount the father, after the death of James Latimer, collected from Mrs. James Latimer. Lewis Latimer, as appears from this record, also told a number of persons that he expected to remain upon the farm where his daughter-in-law and her children, the appellees, were, where he had the best of care, and that the farm would be theirs some time. He also said he intended to leave things as he and his son had arranged them,—that all he wanted was his living. Some few months after the death of James Latimer, however, Lewis Latimer went to Chicago on a visit to one of his daughters, and after remaining a number of months he executed to his two daughters the deed mentioned in the statement herein, attempting, apparently, to revoke the deed which he had made to James Latimer.
A careful consideration of all of this evidence fails to convince us that the deed to James Latimer was obtained by fraud or any undue influence on his part. On the contrary, it seems to have been by premeditation and desire of the grantor that the property in question should be so disposed of. 'The evidence in this record convinces us that his intention was fully carried out by the notary public who prepared the deed at his suggestion, he reserving to himself a life estate and giving to his son, James Latimer, the fee. All of the facts connected with the execution by and turning over of this deed to the notary public, who was a banker, to be kept by him in his safe or vault, with directions to be delivered to the grantee upon the death of the grantor, are conclusive, in law, of the delivery of this deed.
The rule is well established in this State that if the grantor, by his act of delivery, loses all control over the instrument by which the grantee is to become possessed of the estate, then there is sufficient delivery. (Bryan v. Wash, 2 Gilm. 557; Shults v. Shults, 159 Ill. 654; Cline v. Jones, 111 id. 563.) The question is to be determined largely by the intention of the grantor, which may be ascertained by his acts and declarations, and by the circumstances attending the execution of the deed and its delivery to a third party. (Masterson v. Cheek, 23 Ill. 72; Walker v. Walker, 42 id. 311; Byars v. Spencer, 101 id. 429.) In the latter case it was said (p.
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Mr. Justice Phillips
delivered the opinion, of the court:
It is urged by appellants that the decree of the circuit court dismissing the bill in this case for want of equity should be reversed for the reason that the deed in question was obtained by fraud and undue influence on the part of the grantee; that such deed was never operative for the reason that it Was not delivered, and that it was a testamentary devise, and void, not having been attested as the statute directs, and for the reason it was to be in force from and after the decease of the grantor, and not before.
The questions as to whether or not the deed was obtained by fraud and undue influence, and whether or not it was ever legally delivered, are questions of fact, which must be determined from the record presented to us. The son, who was the grantee in this deed, lived on the farm with his father, who was advanced in years and unable to perform hard labor, which necessitated that the son take the charge and management of the farm from year to year, which he did do for a number of years. The son was the only member of the family who resided with his father, and it appears from the record that about the time some improvements were necessary the subject as to the future ownership of the farm was talked of between the father and son, as it had been on a number of occasions before. The father expressed" a desire to make such provision as would insure his son the future ownership of this land, and expressed a desire to execute a will or some paper which would accomplish such result. An old friend and acquaintance of the family, who was a notary public and banker of Marseilles, was solicited to come to the farm and prepare the necessary papers. On September 21,1894,—the date of the deed in controversy, —in pursuance of this invitation he went to the farm and was told by Lewis Latimer, the grantor, that he desired to arrange Ms matters in such shape there would be no trouble over his property after his death. Upon being asked if he desired to make a will he said he thought he did. Upon being informed by the notary that witnesses would be necessary to a will, and, in reply to an inquiry of Lewis Latimer as to whether any expense would be incurred in the transaction after his death, receiving the information that expense of probation of the will and administration would be necessary, he then declared he desired to arrange the matter in some other way. He was told the only other method would be to make a deed, with a proviso that he should have the control and use of the property so long as he lived, and that the deed should not take effect until after his decease. To this he expressed his satisfaction, and said that was the way he wanted it, at the same time suggesting that he desired each of his daughters to have the sum of $1000, saying that he believed that was all they were entitled to. Upon the suggestion by the notary that he had considerable personal property out of which this might be paid, he responded that he did not have very much, and desired Ms son, James, to have that, and to pay to each of his daughters the sum of $1000. The deed was then prepared by the notary in the ordinary form, containing the description of the land and the following clause: “This conveyance to be in force from and after my decease, and not before.” Also the further "clause: “The said James A. Latimer to have all of my personal estate, and to pay to each of my daughters, Catherine A. Earing and Eunice A. Flint, the sum of one thousand dollars ($1000) after my decease.” The notary having been furnished, from other papers, the description of the lands, the deed was prepared and read over to the grantor, and he was asked if that was the way he desired it. The grantor then signed the deed and directed the notary as follows: “I want you to take that deed and keep it, and after my decease to deliver it to James Latimer.” Something was said regarding a consideration, whereupon the son, James Latimer, in the presence of the notary gave to his father a silver dollar, which the old gentleman laughingly took, making some jocular remark. The deed was taken and retained by the notary public upon the suggestion and request of the grantor, as above stated, Lewis Latimer remarking at the same time that the notary, being a banker, had a safe place or vault in which to keep it. Within less than one year after the execution of this deed and its delivery to Morey, James A. Latimer, the grantee, died, leaving his widow and children, the appellees in this case. Prior to his death he had made some improvements on the farm. He sunk a well at an expense of about §400, besides which he had furnished lumber, assisted in the work and boarded the men and teams for a number of months while they were engaged in the work. At the time of his death the work of boring the well was not completed, and the widow of James Latimer inquired of Lewis Latimer, who had continued to live with his son and family from the time of the execution of the deed until the death of the son, whether or not she should continue the work. His answer was, “of course,” remarking at the same time that the farm would be hers and the children’s some time, and stating further that he desired her to take care of him, and that he wished the best of care. Before James Latimer died he had borrowed §97 from his father to make payment of some expense on this well. This amount the father, after the death of James Latimer, collected from Mrs. James Latimer. Lewis Latimer, as appears from this record, also told a number of persons that he expected to remain upon the farm where his daughter-in-law and her children, the appellees, were, where he had the best of care, and that the farm would be theirs some time. He also said he intended to leave things as he and his son had arranged them,—that all he wanted was his living. Some few months after the death of James Latimer, however, Lewis Latimer went to Chicago on a visit to one of his daughters, and after remaining a number of months he executed to his two daughters the deed mentioned in the statement herein, attempting, apparently, to revoke the deed which he had made to James Latimer.
A careful consideration of all of this evidence fails to convince us that the deed to James Latimer was obtained by fraud or any undue influence on his part. On the contrary, it seems to have been by premeditation and desire of the grantor that the property in question should be so disposed of. 'The evidence in this record convinces us that his intention was fully carried out by the notary public who prepared the deed at his suggestion, he reserving to himself a life estate and giving to his son, James Latimer, the fee. All of the facts connected with the execution by and turning over of this deed to the notary public, who was a banker, to be kept by him in his safe or vault, with directions to be delivered to the grantee upon the death of the grantor, are conclusive, in law, of the delivery of this deed.
The rule is well established in this State that if the grantor, by his act of delivery, loses all control over the instrument by which the grantee is to become possessed of the estate, then there is sufficient delivery. (Bryan v. Wash, 2 Gilm. 557; Shults v. Shults, 159 Ill. 654; Cline v. Jones, 111 id. 563.) The question is to be determined largely by the intention of the grantor, which may be ascertained by his acts and declarations, and by the circumstances attending the execution of the deed and its delivery to a third party. (Masterson v. Cheek, 23 Ill. 72; Walker v. Walker, 42 id. 311; Byars v. Spencer, 101 id. 429.) In the latter case it was said (p. 433): “The question as to what acts are necessary to constitute a sufficient delivery to render a deed operative and to pass the title to the land has been the subject of much discussion in this court. * * * It may be delivered to the grantee or to his agent. Nor is any particular form or ceremony necessary to constitute a sufficient delivery. It may be by acts or words, or both, or by one without the other, but what is said or done must clearly manifest the intention of the grantor and of the grantee that the deed shall at once become operative to pass the title to the land conveyed, and that the grantor loses all control over it.”
In this case it was attempted on the part of the grantor, Lewis Latimer, to make a voluntary settlement or disposition of his property. The law makes stronger presumptions upon the question of delivery in a case of such character. Such settlements, fairly made, are binding on the grantor. (Reed v. Douthit, 62 Ill. 348; Walker v. Walker, supra; Cline v. Jones, supra; Shults v. Shults, supra.) In all such cases, however, the intention of the grantor is the controlling element. From the evidence presented in this record there can be no question but the grantor, Lewis Latimer, intended to make a voluntary settlement, ■—to devise or deed the land in question to his son. He first had in mind the preparation of a will, and„ after-wards desired the execution of the deed in question. Upon the execution of this deed a delivery of it was made to a third person with certain directions as to its delivery after his death, which was sufficient, and resulted in the grantor losing all control over the instrument. We hold, therefore, there was no fraud or undue influence in the procurement of this deed, but it was the deliberate and voluntary act and intention of the grantor. We hold, also, there was a sufficient delivery of the deed to pass the title to the grantee.
The third reason urged by appellants for a reversal of the decree in this cause is, that the deed in question was but a testamentary devise, and contained a clause to the effect that it was to be in force from and after the decease of the grantor, and not before, and that it was therefore void. This involves a question of law, only.
Under the statutes of this State livery of seizin is abolished. At common law a freehold estate could not be created to commence in futuro, except where there was a particular estate to support it as a remainder. This was because a charter of feoffment was the only common law instrument for the conveyance of a freehold, and a feoffment was void without livery of seizin, and that ceremony was necessarily performed presently. In this State, by the act of 1827 livery of seizin was abolished, and it was provided, in substance, that every deed or other conveyance should be sufficient without livery of seizin for conveying or transferring lands, so as absolutely and fully to vest in every donee, grantee, bargainee, or purchaser of such estate or estates as should be specified in the deed or other conveyance.
Since the act of the legislature of this State abolishing livery of seizin, the question as to whether or not a deed of conveyance reserving to the grantor a life estate and giving and granting to the grantee an estate in fee is a testamentary devise has been frequently presented. The rule is well established, a conveyance of real estate delivered, but not to take effect or to be recorded until the death of the grantee, is good and valid without the creation of an intermediate estate to support it, and such an instrument cannot be held to be one in the nature of a testamentary devise or disposition of the property. Harshbarger v. Carroll, 163 Ill. 636; Shackelton v. Sebree, 86 id. 616; Vinson v. Vinson, 4 Ill. App. 138; Calef v. Parsons, 48 id. 253; Golding v. Golding, 24 Ala. 122; Gillham Sisters v. Munstin, 42 id. 365; Elmore v. Munstin, 28 id. 309; Bryan v. Bradley, 16 Conn. 474; Wall v. Wall, 30 Miss. 91; Cummings v. Cummings, 3 Ga. 468.
In the case of Shackelton v. Sebree, supra, the question was fairly presented to this court by a clause reading, “this deed not to take effect until after my decease,—not to be recorded until after my decease.” The deed was properly executed and delivered. There, as here, the contention was urged that the deed was in the nature of a testamentary devise, and as such was not so executed and authenticated as to become operative and valid. In disposing of that contention it was said (p. 619): “Was this deed void, or did it operate to convey the fee at the death of the grantor? Had he conveyed a life estate to another, or had he conveyed to another to hold in trust for him during his life, then it would have been free from all doubt; or had he, in the same instrument, reserved a life estate to himself, we apprehend that it will be conceded that the title would have passed to the grantee; * * * and had he expressly reserved in this deed a life estate he would have held in the same manner. If, then, in either of these cases the grantor could thus hold the title necessary to support a remainder, why not when, by operation of law and construction of the deed, he holds a life estate in legal effect the same? We are unable to perceive any reason in law or in fact.” And further: “Here the remainder-man was in being, named as grantee, and no reason is seen, since livery of seizin has been abolished, why the fee in remainder did not vest on the delivery of the deed, which has been adopted as a substitute for livery.”
In Witham v. Brooner, 63 Ill. 344, it was said (p. 346): “Livery of seizin is abolished by the first section of the Conveyance act, and the title is thereby absolutely vested in the donee, grantee, bargainee, etc., independently of the Statute of Uses. Hence, under this statute a deed in the form of a bargain and sale must be regarded as having the force and effect of a feoffment, and under the Statute of Uses a feoffment to A, for the use of or in trust for B, would pass the leg'al title to B. In a deed purely of bargain and sale, independently of the first section of the Conveyance act, the rule would be different and the title would vest in the bargainee. Without the first section the legal title would be in the trustee in this case; but as the trust was a passive one, the deed operated as a feoffment would at the common law, and vested the legal title in the cestuis que trust by virtue of the Statute of Uses. Thus the statute executes itself. It conveys the possession to the use and transfers the use to the possession, and by force of the statute the cestuis que trust had the lawful seizin, estate and possession.”
It is apparent, therefore, that the deed in question was not a testamentary devise, for the reason it was to be in force and effect after the decease of the grantor, and conveyed to the grantee the fee based upon a life" estate.
The decree of the circuit court of LaSalle county dismissing appellants’ bill for want of equity is affirmed.
Decree affirmed.