Day, J. —
The deceased, Isaac Bealer, had several sons and two daughters by a former marriage. During his lifetime he made provision for these sons, by conveying to them real estate intended to constitute their shares of his estate. Abraham Bealer is the offspring of a second marriage, his father being about seventy-five years of age at the time of his birth. On the sixth day of July, 1867, Isaac Bealer duly executed a deed conveying to his son Abralxain the lands in controversy. Isaac Bealer deceased on the sixteenth day of February, 1872; at the advanced age of eighty-four. Upon various occasions and to numerous parties during the last four or five years of his life, he expressed his determination that his infant son Abraham should have his homestead, the laud in controversy. ITe left a will devising to this son his personal property but making no disposition of the realty. Four or five days before his death, in reply to his son David, who remarked to him that [338]*338he had better fix his property so there would be no fussing about that when he was gone, he said that he had that all fixed, and, pointing to a big chest which he had in the room, he said: “After I am gone the deed and will will be found in that chest.” A few hours after his death this son found the deed in the chest, and kept it in his possession until a guardian for the infant was appointed^ when he delivered the deed to the guardian, who stamped it and procured it to be recorded.
The deed is a conveyance to Abraham Bealer, in fee simple of the lands in controversy, reserving to Isaac Bealer the use and occupancy, rents and profits, during his life.
The plaintiffs introduced testimony that Isaac Bealer used, occupied, enjoyed and spoke of the land as his own, and that .upon two .or three occasions he offered to sell it. Upon the other hand the defendants proved that he refused to sell timber from this land, upon the ground that the boy was to have it; and that the other children had received all they were to have. The only point which plaintiffs make is that there was •no delivery of the deed, that Isaac Bealer died seized of the lands, and upon his death they descended to his heirs. Plaintiffs maintain that, in order to constitute a delivery of a deed, it must pass absolutely and irrevocably beyond the power and control of the grantor. Undoubtedly there are many authorities which, in more or less strong terms, settle principles under which it would be held that what occurred respecting this deed did not amount to a delivery.
i deed: dewiuiif oonsti- . tutes. [339]*339■2__. _. ■ [338]*338Upon the other hand there are very respectable authorities which hold that the question of delivery does not al°ne depend upon the fact that the deed has passed beyond the control and manual power of the grantor, but that it depends very largely upon the intent of the grantor to vest an estate, and the presumed acquiescence of the grantee to the acceptance of a conveyance beneficial to him. If actual manual delivery upon the part of the grantor and acceptance by the grantee are essential to a valid conveyance, it would be impossible to execute an operative deed to an infant of very tender years. Yet the cases are numerous where deeds executed to young children, with no other proof [339]*339of delivery and acceptance than that they were recorded by the grantor, have been upheld. In Foley v. Howard, 8 Iowa, 56 (60), it is said that “ cases are not wanting to show that there may be instances where the instrument would operate as. a deed, though it was not parted with by the person executing it.” In Stow v. Miller, 16 Iowa, 460 (463), it is said: “If a ■father dies, leaving among his papers a deed of land, duly executed in form, to one of his children, the'law will give effect to the same if there is anything indicating the intention of -the intestate that it should become effective; for example, the conveying to other children an equal portion of his real estate, as was done in this case, a court of equity would be much in-; ■dined, in order to effectuate the ends of justice, to declare the deed valid, as was done in the case of Scrugham v. Wood, 15 Wend., 545, and this is about as far as the courts have gone •on this subject. It will be observed that the death of the .donor, under the circumstances stated, alters the. relative condition and rights of the parties. The intervention of this contingency takes away all power to revoke the deed, or to make other disposition of the property which existed in life; and the law, in such an event, will or will not imply a delivery and make effective the deed, according to the intent of the ■grantor and the surrounding circumstances of the case.” This we believe to 'be a correct statement of the law. Where one who has the mental power to alter his intention, and the physical power t.o destroy a deed in his possession, dies without doing either, there is, it seems to us, but little reason for saying that his deed shall be inoperative, ■simply because during life he might have done that which he did not do. It is much more consonant with reason to determine the-effect of the deed by the intention existing up to the time of death, than to refuse to give it that effect because the intention might have been changed.
Applying this doctrine to the deed in question there.can be no doubt that it should’be sustained. The deceased, as-lie fre7 quently declared, had made all the provisions for his other children that he intended to make. . When within-a very few days of his death,, and evidently,: as .appears, contemplating [340]*340approaching dissolution, he says that he has his property all fixed, and points to the chest in. which the deed would be found, which, as he supposed, had the effect to fix his property so that there would be no “ fussing ” about it when he was gone. He thus manifested an u'nequi vocal intention, within a very short time of his death, to have this deed operate as a disposition of his property, and any construction of the law which ignores this intention and defeats this purpose prefers shadow to substance. As bearing upon this question, see Masterson v. Cheek, 23 Ill., 76; Pursley v. Walker, 42 Ill., 311; Souverbye v. Arden, 1 Johns. Ch., R. 256; Lessees of Mitchell v. Ryan, 3 Ohio State, 382; Cecil v. Beaver, 28 Iowa, 242.
But the case of Tallman v. Cooke, 39 Iowa, 402, is decisive of this question. In that case P. H. Tallman, on the thirteenth day of December, 1858, deeded certain lands to his son, John F. Tallman, then about three and one-half years old. The deed was not recorded until the twenty-third day of May, 1868. In the meantime the deed remained in the manual custody of the grantor, but he testified that he held it as the guardian of hi's son and for his benefit. In 1862 the lands were sold for delinquent taxes. In 1871, John F. Tallman brought his action to redeem from this tax sale. The question was whether he became the owner of the land before the tax sale, and was entitled to the benefits of the provisions respecting redemption, applicable to minors. It was held that the deed was delivered before it was recorded, and that the title vested upon such delivery.
3. pleading: mission. It is claimed, however, that the admission in the answer, that Isaac Bealer died seized of the lands in question, is decisive against the claim or Abraham Bealer to the land. This admission must be taken in connection with the matter contained in the entire answer.
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Day, J. —
The deceased, Isaac Bealer, had several sons and two daughters by a former marriage. During his lifetime he made provision for these sons, by conveying to them real estate intended to constitute their shares of his estate. Abraham Bealer is the offspring of a second marriage, his father being about seventy-five years of age at the time of his birth. On the sixth day of July, 1867, Isaac Bealer duly executed a deed conveying to his son Abralxain the lands in controversy. Isaac Bealer deceased on the sixteenth day of February, 1872; at the advanced age of eighty-four. Upon various occasions and to numerous parties during the last four or five years of his life, he expressed his determination that his infant son Abraham should have his homestead, the laud in controversy. ITe left a will devising to this son his personal property but making no disposition of the realty. Four or five days before his death, in reply to his son David, who remarked to him that [338]*338he had better fix his property so there would be no fussing about that when he was gone, he said that he had that all fixed, and, pointing to a big chest which he had in the room, he said: “After I am gone the deed and will will be found in that chest.” A few hours after his death this son found the deed in the chest, and kept it in his possession until a guardian for the infant was appointed^ when he delivered the deed to the guardian, who stamped it and procured it to be recorded.
The deed is a conveyance to Abraham Bealer, in fee simple of the lands in controversy, reserving to Isaac Bealer the use and occupancy, rents and profits, during his life.
The plaintiffs introduced testimony that Isaac Bealer used, occupied, enjoyed and spoke of the land as his own, and that .upon two .or three occasions he offered to sell it. Upon the other hand the defendants proved that he refused to sell timber from this land, upon the ground that the boy was to have it; and that the other children had received all they were to have. The only point which plaintiffs make is that there was •no delivery of the deed, that Isaac Bealer died seized of the lands, and upon his death they descended to his heirs. Plaintiffs maintain that, in order to constitute a delivery of a deed, it must pass absolutely and irrevocably beyond the power and control of the grantor. Undoubtedly there are many authorities which, in more or less strong terms, settle principles under which it would be held that what occurred respecting this deed did not amount to a delivery.
i deed: dewiuiif oonsti- . tutes. [339]*339■2__. _. ■ [338]*338Upon the other hand there are very respectable authorities which hold that the question of delivery does not al°ne depend upon the fact that the deed has passed beyond the control and manual power of the grantor, but that it depends very largely upon the intent of the grantor to vest an estate, and the presumed acquiescence of the grantee to the acceptance of a conveyance beneficial to him. If actual manual delivery upon the part of the grantor and acceptance by the grantee are essential to a valid conveyance, it would be impossible to execute an operative deed to an infant of very tender years. Yet the cases are numerous where deeds executed to young children, with no other proof [339]*339of delivery and acceptance than that they were recorded by the grantor, have been upheld. In Foley v. Howard, 8 Iowa, 56 (60), it is said that “ cases are not wanting to show that there may be instances where the instrument would operate as. a deed, though it was not parted with by the person executing it.” In Stow v. Miller, 16 Iowa, 460 (463), it is said: “If a ■father dies, leaving among his papers a deed of land, duly executed in form, to one of his children, the'law will give effect to the same if there is anything indicating the intention of -the intestate that it should become effective; for example, the conveying to other children an equal portion of his real estate, as was done in this case, a court of equity would be much in-; ■dined, in order to effectuate the ends of justice, to declare the deed valid, as was done in the case of Scrugham v. Wood, 15 Wend., 545, and this is about as far as the courts have gone •on this subject. It will be observed that the death of the .donor, under the circumstances stated, alters the. relative condition and rights of the parties. The intervention of this contingency takes away all power to revoke the deed, or to make other disposition of the property which existed in life; and the law, in such an event, will or will not imply a delivery and make effective the deed, according to the intent of the ■grantor and the surrounding circumstances of the case.” This we believe to 'be a correct statement of the law. Where one who has the mental power to alter his intention, and the physical power t.o destroy a deed in his possession, dies without doing either, there is, it seems to us, but little reason for saying that his deed shall be inoperative, ■simply because during life he might have done that which he did not do. It is much more consonant with reason to determine the-effect of the deed by the intention existing up to the time of death, than to refuse to give it that effect because the intention might have been changed.
Applying this doctrine to the deed in question there.can be no doubt that it should’be sustained. The deceased, as-lie fre7 quently declared, had made all the provisions for his other children that he intended to make. . When within-a very few days of his death,, and evidently,: as .appears, contemplating [340]*340approaching dissolution, he says that he has his property all fixed, and points to the chest in. which the deed would be found, which, as he supposed, had the effect to fix his property so that there would be no “ fussing ” about it when he was gone. He thus manifested an u'nequi vocal intention, within a very short time of his death, to have this deed operate as a disposition of his property, and any construction of the law which ignores this intention and defeats this purpose prefers shadow to substance. As bearing upon this question, see Masterson v. Cheek, 23 Ill., 76; Pursley v. Walker, 42 Ill., 311; Souverbye v. Arden, 1 Johns. Ch., R. 256; Lessees of Mitchell v. Ryan, 3 Ohio State, 382; Cecil v. Beaver, 28 Iowa, 242.
But the case of Tallman v. Cooke, 39 Iowa, 402, is decisive of this question. In that case P. H. Tallman, on the thirteenth day of December, 1858, deeded certain lands to his son, John F. Tallman, then about three and one-half years old. The deed was not recorded until the twenty-third day of May, 1868. In the meantime the deed remained in the manual custody of the grantor, but he testified that he held it as the guardian of hi's son and for his benefit. In 1862 the lands were sold for delinquent taxes. In 1871, John F. Tallman brought his action to redeem from this tax sale. The question was whether he became the owner of the land before the tax sale, and was entitled to the benefits of the provisions respecting redemption, applicable to minors. It was held that the deed was delivered before it was recorded, and that the title vested upon such delivery.
3. pleading: mission. It is claimed, however, that the admission in the answer, that Isaac Bealer died seized of the lands in question, is decisive against the claim or Abraham Bealer to the land. This admission must be taken in connection with the matter contained in the entire answer. It is plain, when so considered, that it is more the admission of a legal conclusion than of a distinct fact. Notwithstanding this admission the defendant claims that he is entitled to the land in question under the conveyance referred to, and if the proof supports this claim he should not be defeated because of this admission.
One of the counsel for appellee claims .that the agreement [341]*341to waive the benefits of the decree as to the twenty-seven acres was made by a subordinate counsel, without his assent, and that it should not be enforced. This is claimed under the deed which was not signed. We are satisfied that that deed cannot be enforced, and that the only way to avoid the costs of appeal was to assent to this modification.
The-decree is affirmed, with the modification agreed to.
Affirmed.