#### Helen M. Evans, Plaintiff, *v.*W. Smith Evans and Others, Defendants.

(Supreme Court, Oneida Trial Term,

September, 1910.)

Deeds — Delivery — Death of grantor before actual delivery.

Where a person signs and seals a deed of real and personal property and delivers it to a person other than the grantee to be held by him until after the grantor’s death and then delivered to the grantee, and in the deed undertakes to transfer all the personal property he owns at the time of signing it “ or that may take the place thereof at the time of my death ” and also makes the transfer subject to the condition that the grantee shall pay his debts and funeral expenses and certain sums to individuals designated against whom he further provides there shall be no charge or claim made by his estate, and there are no contractual relations between the parties to the deed and the grantee has no knowledge of the execution of the instrument, the grantor must be held to have attempted to bring about results which could be accomplished only through the medium of a will, and the instrument must be held inoperative as a deed.

Action far partition.

Francis A. Watters, for plaintiff.

Mason & McNamara, for defendant Oren B. Evans.

O. P. Backus, for defendants McDonald, Gillette and W. Smith Evans.

*87Devendorf, *J.*

The plaintiff claims an interest in the property in question hy virtue of the instrument purporting to he a deed, dated October 31, 1908, executed by Horatio O. Evans to W. Smith Evans, Helen M. Evans, his wife (plaintiff), and Oren B. Evans, parties of the second part, as tenants in common. It purports to convey a -farm containing upwards of ninety .acres of land, together “ with all the horses, cows, live stock, wagons, sleighs, farming tools, furniture and personal property I now own or that may take the place thereof at the time of my death.” Eollowing the above the deed contains this language:

> “This transfer is made subject to the following conditions, to wit:

> “ *First.*That my just debts and funeral expenses be paid and borne equally by second parties herein.

> “ *Second.*That in consideration of the care, comfort and company Adeline McDonald was to my wife in her last illness and the care, comfort and company she has been to me since the decease of my said wife, second parties shall pay said Adeline McDonald $500, five hundred dollars, in lieu of any claim for wages, however, which said payment shall be borne equally by second parties herein.

> “ *Third.*That in consideration of my filial affections for Viola Evans, or Viola Gillette, and in consideration that my late wife died without making the provision for her that she intended, second parties herein shall pay to Viola Evans, or Gillette, two hundred fifty ($250) dollars, said payment to be paid equally by second parties herein.

> “ It is further understood that in the disposition of my property- hereby there is to be no charge or claim by either of the parties hereto or any of the parties herein against the others in favor of my estate.

> “ The property herein intended to be conveyed is my farm of land upon which I now reside, together with all the personal property thereon.

> “This deed is delivered to E. A. Watters, of Rome, 1ST. Y., in escrow, to be by him held until after my death, then and in that event to be by him delivered to second parties herein.”

*88Horatio C. Evans died April nineteenth, following its execution, at which time said instrument was in the custody of Mr. Watters, named therein, for delivery to the second parties.

I think the delivery to Watters in the nature of an escrow would have been effective as a conveyance of the real estate described and title thereto would have passed presently upon the first delivery by relation from the subsequent delivery, had that been the limit of the attempted transfer. Ruggles v. Lawson, 13 Johns. 285; Tooley v. Dibble, 2 Hill, 641; Nottbeck v. Wilks, 4 Abb. Pr. 315; Crain v. Wright, 36 Hun, 74; Hathaway v. Payne, 34 N. Y. 92.

I am also of the opinion that, as the instrument ran to the parties “as tenants in common,” plaintiff would not have been limited to a tenancy by the entirety of an undivided half of the real estate, as claimed by the defendant Oren B, Evans, -and would have taken an undivided one-third of the whole as tenant in common, were the conveyance otherwise effectual. Jooss v. Pay, 129 N. Y. 17; Miner v. Brown, 133 id. 308; Matter of Albrecht, 136 id. 94.

But the grantor attempted to do much more than to convey his real estate by delivery of this deed in the nature of an escrow. He undertook to bring about results which could be accomplished only through the medium of a will. He provided for a transfer of all the personal property on his farm .at the time of the execution of the instrument, or such as may have replaced the same, at the time of his death. He also made such transfer subject- to the conditions that the parties of the second part should pay his debts and funeral expenses and $500 and $250, respectively, to certain individuals designated; and he further provided that there should be no charge or claim made by his estate against either of the parties named therein.

■Some of these provisions could not take effect except upon his death and were inoperative until that time. I think unto his death he considered himself as the owner of the property, uninterfered with by the instrument in question.

*89There were no contractual relations between the grantor and the grantees; neither did the grantees, or either of them, have any knowledge of the execution and delivery of such instrument. The scheme, as a whole, of the grantor, as evidenced by the provisions thereof, necessarily fails, if it is to be restricted to the scope of the conveyance of the land only.

If the other provisions are to operate in compliance to his wishes, then the next of kin or personal representatives must withhold or release any and all claims in favor of the estate against either of the grantees, or parties named, funeral expenses and debts must be assumed and paid and the parties mentioned must receive their gifts in the nature of legacies. These directions and provisions applied.to •a condition of things created or arising after death. They were inoperative until that time and inserted in the instrument for the purpose of controlling affairs then and, hence, come within the matters necessarily to be included in or provided for by will and not by deed in escrow.

I do not see any injustice in limiting testamentary dispositions to last will and testament. This instrument in form of execution is in the nature of a deed, but in substance is a will. It is an attempt at testamentary disposition by deed. The .party making such dispositions should be confined to a will. Gilman v. McArdle, 99 N. Y. 451; Matter of Diez, 50 id. 88.

Another serious question which arises against the plaintiff in this case is that one of the grantees'refuses to accept and be bound by the instrument. Can he be compelled by it to yield any claim which his father’s estate may possess against the other grantees or persons named, or to pay funeral expenses, debts and a proportionate share or sum given in the nature of legacies ? I think not.

As to these provisions, as stated, the instrument did not operate in the lifetime of the donor or grantor; and the son now refusing to accept was not a party to it and cannot be made liable to earry out its directions. All this could have been provided for by will, but not in the manner attempted.

*90Acceptance is as necessary as delivery. Hamlin v. Hamlin, 117 App. Div. 493. Delivery is essential to. the transfer of title and there can he no delivery without acceptance by the grantee. Both delivery and acceptance must appear in order to make an effective conveyance. Ten Eyck v. Whitbeck, 156 N. Y. 341; Jackson v. Phipps, 12 Johns. 418.

It is urged that, upon his refusal to accept, the one-third of the property goes into the estate and is divided according to law. If that is correct, then the plan of the father (the grantor) fails and the instrument does not carry out his wishes, intents and purposes.

I have come to the conclusion that, .as the instrument (executed as a deed) is an attempt at testamentary disposition and is not accepted by one of the grantees, it becomes inoperative as a deed and the plaintiff’s case fails. Judgment for the dismissal of the complaint will enter accordingly.

'Complaint dismissed.