Mr. Chief Justice Hand
delivered the opinion of the court:
The main question presented here for determination is, did the appellant deliver the deed executed by him on February 18, 1899, to his three daughters, or to one of them for the benefit of all, with the intention that it should then take effect and the title to .said farm immediately vest in them, or was the deed in the nature of a testamentary disposition of the farm? That is, did the appellant intend the deed should not take effect and the title to the farm vest in his daughters until after his death? The deed was recorded by him, but that is not conclusive evidence that he then delivered it absolutely or that he intended it to at once take effect. When the deed was executed the grantees were not present. Neither did they have any knowledge of the fact that it had been executed until after it had been recorded. The first time they received notice that the deed had. been executed was when the appellant brought it home with him. He then gave it to one of his daughters and told her to place it among his papers, where it could be found in case of his death. Anna testified, when her father brought the deed home with him he gave it to her and Elizabeth, and said: “Here is the deed; now you take care of it.” We think the weight of the evidence strongly preponderates in favor of the appellant’s contention that he did not. deliver the deed to his daughters with the intention that it should then vest in them the title to the farm.
In the case'of Brown v. Brown, 167 Ill. 631, a bill was filed by the father to cancel, as a cloud upon his title, a deed which he had executed to his son and caused to be recorded. On page 636 it was said: “It is true, the deed was placed upon record; but that fact, of itself, does not establish a delivery of the instrument. If a grantor, without the knowledge or assent of the grantee, place a deed on record, that will not constitute a delivery, for the reason the grantee has not assented to receive the deed, and it is well settled that it is essential to the legal operation of the deed that the grantee assents to receive it. Without acceptance on behalf of the grantee there can be no delivery. (Herbert v. Herbert, Breese, 354; Kingsbury v. Burnside, 58 Ill. 310; Maynard v. Maynard, 10 Mass. 458; Sullivan v. Eddy, 154 Ill. 199.) Here, from all the evidence, it is apparent that the grantor himself placed the deed on record, and after it was recorded he retained the possession and control of the instrument, and if at any time the deed passed out of his possession the act Was without his consent, and hence did not affect his rights. Wormley v. Wormley, 98 Ill. 544.”
If the deed was intended by the appellant to operate as a will, and not as a deed, it was not delivered. In Hayes v. Boylan, 141 Ill. 400, Patrick Boylan executed a deed to a piece of real estate to his three sons. He handed it to one of them with instructions, “Take this deed and put it in the box in the bank.” He further said, “The boys need not know anything about this till after my death.” The circuit court held the deed was delivered, but this court reversed its decree, and on page 406 said: “It is plain that the intention of Patrick Boylan was to have the deed to take effect only after his death. On its face the deed purported to operate presently, but he intended to, and did, retain the possession of the land apd. pceiypd and enjoyed its rents during his life. He did not deliver the deed in escrow to a third party, with direction to him to deliver it to the grantees therein named after his déath, but he retained its possession himself until his death, intending that it should become operative only after that event,—in other words, he intended it should operate precisely as a will without having it executed and witnessed as a will.”
It has been held, if a parent execute a deed to an infant child which is beneficial to the child, and manifests by his words and acts that he intends the deed shall operate at once, a delivery will be presumed and proof of actual delivery is unnecessary. This is because the infant is incapable of doing any act in regard to the deed which he may not avoid on reaching his majority, and it is the duty of a parent, as his natural guardian, to accept and preserve the deed for him. (Hayes v. Boylan, supra,.) The grantees here were all of age, and the presumption of delivery in their favor does not obtain,—at least'to the extent it would if they were minors; and if such presumption did obtain, the circumstances under which this deed was executed and recorded, and the fact that it was retained by the grantor and placed by one of the grantees, by his direction, among his papers, with the view that it might be readily found in case of his death, rebuts the presumption of delivery.
In Cline v. Jones, 111 Ill. 563, Cline went alone before a justice of the peace and had drawn up and signed and acknowledged, a warranty deed of the land in controversy to Mrs. Jones, his daughter, the deed reciting it was made in consideration of love and affection and one dollar. He told the justice he had given all his other children land but none to Mrs. Jones, and he felt he ought to give her said land. After he had executed the deed he told many persons that he had -made the deed; that he had made his children equal; that Mrs. Jones would have the land upon his death. He also said to Mrs. Jones and her husband he had fixed it so that the land would be hers at his death, but if she would move on the land it should be hers immediately. That she did not do. He retained the possession of the deed until his death, also the possession of the land. It was held the deed was not delivered and for that reason it did not convey the title. It was there said (p. 569): “The deed by its purport was absolute, conveying the grantor’s entire interest, to operate immediately. But the evidence shows the deed was not intended to be absolute, but to be qualified in its effect; that it was not intended to convey the grantor’s whole interest, but that he meant to have a life estate unless the grantee should move upon the land, which she never did; that the deed was not intended to operate presently, but only upon the grantor’s death or going upon the land to reside. The- evidence shows the distinct intention not to create a present estate in the grantee. As, then, there was never any actual delivery of the deed but the grantor ever kept it in his own possession, and as it never was his intention that the deed should presently take effect and become operative according to its terms, there was no delivery of the instrument as the deed of the grantor, and it was not valid as a deed.”
Mr. Lewin, in bis work on Trusts, on page 124 quotes from the case of Habergham v. Vincent, 2 Ves. Jr. 203, as follows: “A deed must take place upon its execution, or not at all. It is not necessary for a deed to convey an immediate interest in possession, but it must take place as passing the interest to be conveyed at the execution; but a will is quite the reverse, and can only operate after death.” The author then proceeds: “We may therefore safely assume as an established rule, that if the intended disposition be of a testamentary character and not to take effect in the testator’s lifetime, but ambulatory until his death, such disposition is inoperative unless it be declared in writing, in strict conformity with the statute enactments regulating devises and bequests.”
The evidence in this case also shows that the appellant remained in the possession and was in the possession of the land at the time he commenced this suit.
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Mr. Chief Justice Hand
delivered the opinion of the court:
The main question presented here for determination is, did the appellant deliver the deed executed by him on February 18, 1899, to his three daughters, or to one of them for the benefit of all, with the intention that it should then take effect and the title to .said farm immediately vest in them, or was the deed in the nature of a testamentary disposition of the farm? That is, did the appellant intend the deed should not take effect and the title to the farm vest in his daughters until after his death? The deed was recorded by him, but that is not conclusive evidence that he then delivered it absolutely or that he intended it to at once take effect. When the deed was executed the grantees were not present. Neither did they have any knowledge of the fact that it had been executed until after it had been recorded. The first time they received notice that the deed had. been executed was when the appellant brought it home with him. He then gave it to one of his daughters and told her to place it among his papers, where it could be found in case of his death. Anna testified, when her father brought the deed home with him he gave it to her and Elizabeth, and said: “Here is the deed; now you take care of it.” We think the weight of the evidence strongly preponderates in favor of the appellant’s contention that he did not. deliver the deed to his daughters with the intention that it should then vest in them the title to the farm.
In the case'of Brown v. Brown, 167 Ill. 631, a bill was filed by the father to cancel, as a cloud upon his title, a deed which he had executed to his son and caused to be recorded. On page 636 it was said: “It is true, the deed was placed upon record; but that fact, of itself, does not establish a delivery of the instrument. If a grantor, without the knowledge or assent of the grantee, place a deed on record, that will not constitute a delivery, for the reason the grantee has not assented to receive the deed, and it is well settled that it is essential to the legal operation of the deed that the grantee assents to receive it. Without acceptance on behalf of the grantee there can be no delivery. (Herbert v. Herbert, Breese, 354; Kingsbury v. Burnside, 58 Ill. 310; Maynard v. Maynard, 10 Mass. 458; Sullivan v. Eddy, 154 Ill. 199.) Here, from all the evidence, it is apparent that the grantor himself placed the deed on record, and after it was recorded he retained the possession and control of the instrument, and if at any time the deed passed out of his possession the act Was without his consent, and hence did not affect his rights. Wormley v. Wormley, 98 Ill. 544.”
If the deed was intended by the appellant to operate as a will, and not as a deed, it was not delivered. In Hayes v. Boylan, 141 Ill. 400, Patrick Boylan executed a deed to a piece of real estate to his three sons. He handed it to one of them with instructions, “Take this deed and put it in the box in the bank.” He further said, “The boys need not know anything about this till after my death.” The circuit court held the deed was delivered, but this court reversed its decree, and on page 406 said: “It is plain that the intention of Patrick Boylan was to have the deed to take effect only after his death. On its face the deed purported to operate presently, but he intended to, and did, retain the possession of the land apd. pceiypd and enjoyed its rents during his life. He did not deliver the deed in escrow to a third party, with direction to him to deliver it to the grantees therein named after his déath, but he retained its possession himself until his death, intending that it should become operative only after that event,—in other words, he intended it should operate precisely as a will without having it executed and witnessed as a will.”
It has been held, if a parent execute a deed to an infant child which is beneficial to the child, and manifests by his words and acts that he intends the deed shall operate at once, a delivery will be presumed and proof of actual delivery is unnecessary. This is because the infant is incapable of doing any act in regard to the deed which he may not avoid on reaching his majority, and it is the duty of a parent, as his natural guardian, to accept and preserve the deed for him. (Hayes v. Boylan, supra,.) The grantees here were all of age, and the presumption of delivery in their favor does not obtain,—at least'to the extent it would if they were minors; and if such presumption did obtain, the circumstances under which this deed was executed and recorded, and the fact that it was retained by the grantor and placed by one of the grantees, by his direction, among his papers, with the view that it might be readily found in case of his death, rebuts the presumption of delivery.
In Cline v. Jones, 111 Ill. 563, Cline went alone before a justice of the peace and had drawn up and signed and acknowledged, a warranty deed of the land in controversy to Mrs. Jones, his daughter, the deed reciting it was made in consideration of love and affection and one dollar. He told the justice he had given all his other children land but none to Mrs. Jones, and he felt he ought to give her said land. After he had executed the deed he told many persons that he had -made the deed; that he had made his children equal; that Mrs. Jones would have the land upon his death. He also said to Mrs. Jones and her husband he had fixed it so that the land would be hers at his death, but if she would move on the land it should be hers immediately. That she did not do. He retained the possession of the deed until his death, also the possession of the land. It was held the deed was not delivered and for that reason it did not convey the title. It was there said (p. 569): “The deed by its purport was absolute, conveying the grantor’s entire interest, to operate immediately. But the evidence shows the deed was not intended to be absolute, but to be qualified in its effect; that it was not intended to convey the grantor’s whole interest, but that he meant to have a life estate unless the grantee should move upon the land, which she never did; that the deed was not intended to operate presently, but only upon the grantor’s death or going upon the land to reside. The- evidence shows the distinct intention not to create a present estate in the grantee. As, then, there was never any actual delivery of the deed but the grantor ever kept it in his own possession, and as it never was his intention that the deed should presently take effect and become operative according to its terms, there was no delivery of the instrument as the deed of the grantor, and it was not valid as a deed.”
Mr. Lewin, in bis work on Trusts, on page 124 quotes from the case of Habergham v. Vincent, 2 Ves. Jr. 203, as follows: “A deed must take place upon its execution, or not at all. It is not necessary for a deed to convey an immediate interest in possession, but it must take place as passing the interest to be conveyed at the execution; but a will is quite the reverse, and can only operate after death.” The author then proceeds: “We may therefore safely assume as an established rule, that if the intended disposition be of a testamentary character and not to take effect in the testator’s lifetime, but ambulatory until his death, such disposition is inoperative unless it be declared in writing, in strict conformity with the statute enactments regulating devises and bequests.”
The evidence in this case also shows that the appellant remained in the possession and was in the possession of the land at the time he commenced this suit. The fact that the grantor remains in possession of the land "after the deed is made is considered and commented upon in all the decided cases as an important fact in determining whether a deed for land made to a party out of possession has been delivered. The facts of this case are peculiar. The grantor was old and infirm and his daughters resided with him. They often did the work upon the farm usually performed by men. He advised with them as to whom the land should be rented to when rented, and divided with them the income of the farm,— that is, the profits arising from the grain and hay raised on the farm and stock raised and sold from the farm,— before and after the'execution of the deed. The fact that the land was assessed in the names of the girls and an insurance policy was written upon the buildings in their names, if the assessment was made and the policy written without the knowledge or assent of the appellant, would not bind him. If the appellant was to be bound by such facts, the burden of proof was upon Anna to show that he knew of such facts and assented thereto. This she failed to do. The fact that the appellant stated to different persons that he had made a deed of the farm to the girls is not inconsistent with the view that he intended the deed to take effect only upon his death.
We have examined this record, which is voluminous, with care, and are fully convinced that the appellant did not intend to transfer by said deed to his three daughters, absolutely, said farm, which represents the accumulations of a lifetime and whidh transfer would have left him almost penniless, as it is conceded the farm was substantially all he had and the deed was without any valuable consideration, but are confident, in view of what appellant supposed was approaching death, he sought by said deed to make a disposition of his property which would place the title in his three daughters after his death.
The decree of the circuit court will be reversed and the cause remanded to that c.ourt, with directions to enter a decree in favor of the complainant and against all the defendants, in accordance with the prayer of the bill of complaint.
Reversed and remanded, with directions.