#### Thomas Dawson, Ex’or. *v.*Richard P. Dawson et al.

' Richard Dawson, the testator, by his will, duly executed in the presence of three witnesses, bearing date the 2d day of May, 1820, devised and bequeathed his property to his seven children (then living), giving to each certain designated portions of his estate, with various limitations, (not necessary to be mentioned). On the 5th of July and 9th of Aug., 1836, by codicils to his said will duly executed, he professed to make several modifications of his will and to repeal, or revoke, the provisions of his said will, in favor of *some*of his children and grand-children, *specially*named, devisees under the will. In the office of mesne conveyances for Beaufort district, on the 8th of May, 1823, and in the office of the secretary of state, on the 19th of June, 1823, the following paper, with its attestation, (together with the will of May, 1820,) was registered.

*“In the year*1821,1 This day, I, Richard Dawson, of said parish, do *Beaufort District,*> give to my namd children in my will, all my reail Si. *Luck Parish.*} estate, and all my porsional propity and goods and chattels, to my namd children in my will, and I do acknolege this day to be them and no others then those that are namd in my will, and the üse therin menshend, wehren I do this day set my hand seale, this 3 day of June, 1821, in the presents of those

Witness 1 I apoint Captin Thomas Dawson in trust to *Henry T. Williams,*> the same, I give up all I have. *Wm. R. Bettison.*y Richd Dawson, [l. s.]”

Held, that the instrument of 3d June, 1821, was wanting in none of the essential requisites of a *valid deed;*that its reference to the will of the grantor of 2d May, 1820, was definite and certain, and must be construed as incorporating the will into the deed, as a necessary part of it, and as having the effect of rendering the provisions of the will, when thus *incorporated in the deed,*no longer *ambulatory*or revocable by the grantor, but irrevocable, and therefore unaffected by the codicils of July and August, 1836, so far as they conflicted with the provisions of the will.

Under the act of 1785, (1 Brev. Dig. 171, (18. P. L. 382,) wherein it is declared that no conveyance shall be effectual, “ unless the same be in writing, signed, sealed and recorded,” the *recording*of a deed is not substituted for *delivery.*It does not declare that *recording*shall be a substitute for *delivery,*nor that an instrument signed, sealed and *recorded,*shall be valid without *delivery*also. It leaves the common law definition of a deed in full force, and accumulates (in the cases to which it applies), another requisite, to wit, *recording,*to the validity of the deed.

*244*Registration*may be regarded as evidence of the *delivery*of a deed, but is not *per se*equivalent to *delivery.*It is intended not to *perfect*the convey-anee, but to *publish*it; not to supply any essential part of its execution, hut to *record it*as it is; not- to *pass rights,*but to give notice that rights toe passed.

Where the *attestation*of the subscribing witnesses to a deed, certifies to the *delivery,*as well as the execution, accounting for the non production of the witnesses, coupled with proof of their signatures, will sufficiently prove the *delivery*of the instrument; but it is otherwise where the witnesses subscribe to an instrument which does not recite that it was delivered, or purport to have been so, but signed and sealed only.

The delivery of a deed by the *grantor,*to a recording officer for the benefit of the *grantee,*.is a good delivery to the grantee himself. (S. P. Ingraham v. Porter, 4 M’Cord. Rep..198.)

Where the grantor parts from a deed at its execution, that is a *delivery*of it; so if he retains the custody of it, but delivers it to ■ a justice to take the proof of its execution, and afterwards to the proper offices for the recording of deeds, where it is recorded, this will be sufficient evidence of the *delivery,*to pass the interests conveyed to the *grantees,*though the grant- or become *repossessed*of the original deed, and it is found among his papers-after his death.

It is not necessary that a deed conveying property to one, as a *trustee*for other persons, should be *delivered*to the trustee, to pass the interests conveyed to the *cestuy que trusts;*a delivery to a *third person,*for the trustee, would, at all events, be good until he should dissent; but a trustee will not be allowed to dissent to the injury of the *cestuy que trusts.*The delivery will be good for them, and a court of equity would, if necessary, supply a *trustee*to support the trusts declared in the deed.

Under the decisions in this State, a present vested interest, to be enjoyed in *futuro,*may be conveyed by deed directly to the *grantee,*as well in personalty as in real estate.

*Before JOHNSTON, Chancellor, at Beaufort, January T.,*1838.

This case came up on an appeal from the decree of Chancellor Johnston. The decree contains a full statement of all the facts in the case and the questions arising upon them, and is as follows :

The late Richard ■ Dawson,- the elder, of St. Luke’s parish, in the district of Beaufort, by will duly executed in the presence of three witnesses, bearing date the 2d of May, 1820, devises and *245-bequeaths to his seven children, then living, (to wit, four sons and three daughters,) as follows:

“ 1st. I give and bequeath to my beloved son, Richard Dawson, and after his death to his male children, (to be kept in value for them, and not to be sold,) the following land's, viz: (two adjoining tracts of land on Sistar’s road, known by the name of Oldhouse). 150 acres of land on the west corner of Woodbine Cot Plantation, on which I now reside ; to be struck off as nearly square as possible ; bounded by Benjamin H. Buckner’s land on the south, and by Ralph M’Neill’s land on the west. A tract of land in St. Peter’s parish, on Black Swamp, containing about 370 acres. And 250 acres of land in St. Peters’ parish, being one-fourth of the Crooked-bay tract of 1000 acres.

2d. I give and bequeath unto my beloved son, Thomas Dawson, and after his death to his male children, (to be kept in value for them and not to be sold,) the following land: Two adjoining tracts of land called. Hickory-hill and Beach-hill, in St. Luke’s parish, near Sistar’s road. Woodbine Cot house, with 150 acres of high land, adjoining marsh land. 250 acres of the Crooked-bay tract above mentioned, which tract lies on the north-side of Sistar’s road.1 And a tract of land, about 90 acres, on the west of the Purysburgh road, at the .12 mile post.

3d.. I give and bequeath to my beloved son, Josiah Dawson, and after his death to his male children, (to be kept in value for them and not to be sold,) the following lands : A tract of land called Mount-Pleasant, on the waters of Bee’s creek, containing about 307 acres. 50 acres of Woodbine Cot plantation, exclusive of marsh, bounded on the south by Benjamin H. Buckner’s land, on the west by my son Richard’s portion of said plantation, on the north by a small water course, which shall be the line between this and the house farm, named for my son Thomas, and on the east by Coosawhatchie river. And 250 acres of the Crooked-bay tract above mentioned.

4th. I give and bequeath unto my beloved son, John Dawson, and after his death unto his male children, (to be kept in value for them and not to be sold, the following lands : 63 acres of land, called Oak-forest, north of the Ocean-landing road (part of the *246Woodbine Cot plantation,) exclusive of marsh, bounded on the east by Coosawhatchie river, south by the house farm aforesaid, and west by Ralph M’Neill’s land. 90 acres of land, lying between Oldhouse tract and Hickory-hill aforesaid. 250 acres, being one-fourth of the above mentioned Crooked-bay tract. And a lot in the village of Coosawhatchie, 105 feet in front and 210 feet in depth, lying on the south side of the jail lot.

5th. I will and bequeath unto my beloved children — males and females in common, and to them for their common benefit (and not to be sold) the following two tracts of land: called Ridge-hill, on the west side of the waters of Bee’s creek, containing about 190 acres; and a tract on the waters of New-river, on the east side of the Great-swamp, containing 250 acres.

6th. I will and bequeath unto my four beloved sons, Richard, Thomas, Josiah and John, before mentioned, and to my three beloved daughters, Jane Wells, Providence Taylor [married women,] and Rebecca Ann Dawson, [unmarried,] all my personal property, consisting of negroes, horses, cattle, sheep, hogs, &c., share and share alike: provided that' those of the above named children, to whom I have loaned, or may hereafier loan, a negro or negroes, will bring forward such negro or negroes, with the issue or increase, to the division, to be justly valued as their, or a part of their respective and equitable portions of the whole.

*Itb.*I will and bequeath that my beloved daughter, Rebecca Ann Dawson, shall have the privilege of living at Woodbine Cot, or at Mount Pleasant, and of working her hands at either place, as she may think proper, so long as she shall remain unmarried and no longer, free of rent or expense.

8th. As to Samuel Marvin, late the husband of my daughter, Mary Dawson, deceased, I deem him, (and his children by my daughter, on his account,) unworthy of sharing in my property. Therefore, I will and bequeath unto the children of the said Samuel, by my daughter aforesaid, the sum of #20, or less', if the law will allow.

9th. In case any of my male children should die without leaving a child or children, or if leaving a child or children, in case such child or children should die before the age of *21*years, without *247leaving lawful issue; then, I will and bequeath such estate to go, in gavel, amongst my other sons, or their male issue, share and share alike, in regard to my lands. And with respect to personal property of my sons aforesaid, in case of any or either of them dying without issue as aforesaid, then I will and bequeath such personal estate to go, in general, to my three above named daughters, as well as to my sons, and their respective heirs, share and share alike.

10th. In case either or any of my three before mentioned daughters should die without leaving a child or children — or, if leaving a child or children, in case such child or children should die before the age of 21 years, without leaving issue — -then, I will and bequeath that the personal property of such daughter should go, in general gavel, to all my surviving sons and daughters aforementioned, share and share alike.”

Of which will he appointed his sons, Thomas and Josiah, executors.

On the 5th of July, 1836, the testator, in the presence of three witnesses, one of whom was a daughter of his daughter, Jane Wells, (then deceased,) executed thé following paper:

“As a codicil to my last will and testament, I hereby declare that the plantation called Woodbine Cot, near Coosa watchie, with all the negroes that belong there, I give to my son, Thomas Dawson, to him and his heirs forever.

Item. I hereby will and declare, that in consequence of the bad conduct of my son John, and of my grandsons Thomas H., William and Samuel Dawson, I cut them off from any portion of my property whatever: it being my desire that the said John '/Dawson, my son, and the said Thomas H. Dawson, William Dawson and Samuel Dawson, my grandsons, (being sons of my son Richard,) shall have no part of my property.”

On the ninth of August, 1836, (on the last of which month he died,) the testator executed the following paper, in the presence of three witnesses:

“ Whereas I, Richard Dawson, the. elder, of St. Luke’s parish, have made and duly executed my last will and testament, in writing, bearing date the 2d day of May, in the year of our. Lord 1820; *248and thereby have given, devised and bequeathed, a portion of my estate, real and personal, to my son John Dawson and his children, and also a portion of my estate, real and personal, to my son Richard Dawson and his children.

Now I do hereby revoke and make void the devises and bequests to my said sons, John and Richard, and their children; it being my intention, in consequence of their unnatural and disobedient conduct, to deprive them of all interests whatsoever in my estate.

From the children of Richard Dawson aforesaid, I desire to except his son, by his first marriage, named Richard P. Dawson; who has not been a participant in the many and outrageous acts of filial ingratitude and rebellion, of which the others have been guilty towards me.

To the said Richard P. Dawson, my grandson, I give, devise and bequeath, all that plantation or tract of land, situate near Gra-hamville, known as the Oldhouse tract; consisting formerly of two separate tracts. Also, a tract of land, situate on Black Swamp, St. Peter’s parish, containing about 370 acres, purchased by me from Grimball Roberts. Also, six negroes, to be designated to my executors, of a fair average value with my other ne-groes, (including in this number, two now in his possession, named Adeline and Maria,) to him and his heirs forever.

Item. To my son Thomas, I give, devise and bequeath, all that plantation called Woodbine Cot, purchased by me from Captain James Postell; no part whereof to be taken *off,*as directed by my said will; but the whole to go to my said son Thomas — as also, two adjoining tracts of land called Hickory-hill and Beach-hill, in St. Luke’s parish, near the Sistar Ferry-road: 250 acres of a tract called Crooked-bay, (which contains about 1000 acres,) situate in St. Peter’s parish : Also, a tract of land, about 90 acres, on the west side of Purysburgh road, near the twelve mile post. Also, the following negro slaves, Barnes, Charlotte, [&c., naming 37]. To have and to hold the said property, real and personal, unto him, the said Thomas, and his heirs forever.

To my grandson Richard Septimus Dawson, son of Thomas, I give, devise and bequeath, my plantation called Oak-forest, to him and his heirs forever.

*249The residue of the property, real and personal, devised and bequeathed, by my will aforesaid, to my sons John and Richard and their children, not disposed of by this codicil, I give, devise and bequeath as follows:

To my sons Thomas and Josiah, I give, devise and bequeath, the whole of the real estate, share and share alike, to them and their heirs forever. 'To my said sons Thomas and Josiah, and my daughter Rebecca Ann M’Kenzie [formerly Dawson], I give and bequeath the personal property, share and share alike, to them and their heirs forever.

And I do ordain and declare this present writing to be a codicil to my said will; and that the same shall be annexed thereto and taken as a part thereof. And I do confirm my said will, in every particular thereof that is not hereby altered and revoked.”

Of the children of the testator who were alive at the execution of his will in May, 1820, one son arid two daughters had died before the execution of the codicils. Of these, Richard, who died intestate in 1835, was first married to a, Miss Pelham, by whom he had a son, Richard P., the same mentioned in the last codicil, and therein made the object of his grandfather’s bounty. But after the birth of this son, Richard separated from his wife about the year 1806. Some years afterwards, but-whether in his first wife’s lifetime, is the subject of controversy, he' married a Miss Breeland; of which marriage were born three other sons, Thomas H., William and Samuel. These are the children of Richard, cut off by the codicils. Richard died leaving these four sons (the whole of his family) surviving him. The youngest, Samuel, is now about 26 years old.

Mrs. Providence Taylor, one of testator’s daughters, also died in his lifetime. She left a husband, but no issue.

Mrs. Jane Wells, another daughter, died also before the testator, leaving issue, an only child, Mary E., who after the testator’s death'became wife of Hamilton Raiford. They were born and have ever lived in Georgia. Mrs. Raiford was a minor at her marriage.

Rebecca Ann Dawson, the testator’s other daughter, (who was *250born in Sept., 1805) was married, after testator’s death to Mr. M’Kenzie.

John, one of the testator’s four sons, is out of the State.

Josiah, another of them, who was appointed one of the executors of his will, has refused to qualify.

Thomas qualified on the will and codicils; and took into possession the bulk of the testator’s estate.

For the purpose of calling all interested parties before the court, and obtaining the protection of its judgment, he, on the of filed his bill in this cause, against his brother John and Josiah, the four sons of his deceased brother Richard, against Mrs. Raiford (the surviving child of his sister Jane Wells) and her husband, and against his sister, Mrs. M’Kenzie, and her husband.

Those parties whose legacies are cut off or decreased by the codicils, say in their answers, in the first instance, that the testa-tator was, from infirmity of mind, incompetent to make them at the time they were executed-: at least that his infirmity was such, that the plaintiff and qualified executor, Thomas, who had undue influence with him, was able to procure, and did, by undue influence, procure him to execute them, much to his own advantage and their detriment. This has failed in the proof, and may be dismissed at once from further consideration.

Their second defence is very important; and requires to be particularly stated.

In the office of Mesne Conveyances for Beaufort, on the 8th of May, 1823, and in the office of the Secretary of State, on the 19th of June, 1823, the following paper, with its attestation, (and I believe the will of May, 1820,) was registered:

“ In the year of 1821Y This Day I Richard Dawson of Said Beaufort District ^parish Do Give To my Namd Children St. ■ Luck ParishJ in my Will all my Reail Estate and all my Porsional Propity and goods and Chattels To my named Children in my will and I Do acknolege This Day To be Them and no others Then Those That are Namd in my will and The use Therin Menshend Wehren I Do this Day Set my Hand Seale this 3 Day of June 1821 in the Presents of Those

*251Witness I apoint Captin Thomas Dawson in Trust Henry T. Williams )"to the Same I give up all I have Wm. R. Bettison J Richakd Dawson l. s.

Beaufot) Before me enry A. Moss Justic of the Quorum— Dist ) Personally appeared Henry T. Williams, who being Duly Sworn, saith on Oath that he saw the above named Ricd Dawson sign, seal & deliver the above Instrument & he Signed his name thereto as witness.

Sworn to before me this") 8th day of April 1823 r Henry T. Williams” Henry A. Moss Q U. J

The bill states “ that about a year after the execution of the will” of May, 1820, “to wit, on the 3d day of June, 1821, the testator, Richard Dawson, executed an instrument in writing, in the words and figures following: [setting out the foregoing paper somewhat inaccurately;] which instrument of writing was proved and recorded,” &c. “ and the original of which is in the hands of your orator’s solicitor, ready to be produced to the court, whenever required. That he [the plaintiff,] never accepted the trust created by this instrument, or in any manner assumed to act under the same. That the said Richard Dawson continued in the possession of the property mentioned in his will, until the day of his death, which occurred on the 25th day of August, in the year of our Lord, 1836 : no proceedings ever having been had, in any of the courts of the country, to set up and establish this last mentioned instrument, which was found by your orator among the papers of the deceased.”

It appears, that at the death of Richard Dawson, Sen., four negroes, formerly his property, were in the possession of Josiah Dawson, and three in the possession of Richard P. Dawson. Of these the plaintiff, as representative of the deceased, did not take possession. Of the rest of his estate he did take possession ; and alleges that it was in his testator’s possession up to his death.

The three youngest children of Richard Dawson, Jr., (Thomas H., William, and Samuel,) admit that their grandfather continued in possession of the property after the deed was executed, as stated in the bill, “ except that part of Woodbine Cot, devised to their fa*252ther, and the plantation called Oldhouse, also devised to him; but they aver that their father resided on that part of Woodbine Cot, before the making of the deed, by permission of the testator. — . That, after the deed, he held the same, in his own right, and remained there until 1826, when he moved to Oldhouse, and remained there until 1830. That he then removed to Savannah, where he lived until his decease. That, after removing from Oldhouse, he leased it to M’Kenzie, and received the rent for one year.— That Josiah Dawson occupied that part of Woodbine Cot which Richard Dawson, the son, had left, for three years, by his permission. And they believe, and hope to prove, that the plaintiff applied to Richard Dawson, the son, for permission to plant his part of Woodbine Cot, which he refused ; and that it was not planted, from the time Josiah Dawson quit, until after the said Richard Dawson, the son was dead.”

They say that, “ in fact, their grandfather, for a long time, returned all the property in question [to the tax collector] as *the estate*of *Richard Dawson;*and recognized the rights of his children to it, under the deed he had made ; and, although the children acquiesced in his possession and use of the estate, they never waived, but always asserted their rights: and were only restrained from enforcing them by the gratitude they owed to the said Richard Dawson, Sen., as a parent, who had acquired the estate by his own labour, and bestowed it on-them.”

I may as well state, at once, that as to the adverse possession of Richard Dawson, Jr., pleaded in the answers of his three younger sons, there is no proof.

There is proof that old Dawson remained in possession of the great body of the property after the date of the instrument, called a deed. But that, although he dealt as usual, and in one instance, (in 1830,) bought a family of negroes ; his general habit was to make his returns of property to the tax collector, as “ *the estate of Richard*Dawson.” He directed the tax collector, who was about setting down his property, in the usual way, to put it down as his “ estate,” saying *he had made over his property to his children,*by some deed, or other instrument, and declaring, *“ I am a trustee*

There is no direct .proof to show a formal delivery of the in*253strument, at its execution. Neither does it directly appear that the grantor retained possession of itan inference to that effect may be drawn from the fact, that it was found among his papers, after his death, by his executor, who produced it at the trial. Who procured it to be registered, can only be inferred in the same way.

As I have stated, there are two classes of parties to this suit. Those who take exclusively under the codicils, or whose interests as declared in the will, are increased by the codicils, maintain that the pretended deed was either not executed, or if executed, was never delivered, or if both executed and delivéred, that it is, either entirely inoperative, or is in virtue of its terms, or of its reference to a testament, testamentary in its character apd provisions, vesting no present interests ; or that if it is to be regarded at all, in the light of a deed, it did not fasten inseparably upon the will of 1820, so as to give an irrevocable permanency to that will, but must be considered as a covenant to stand seized to the uses of any will the grantor might leave, in which case the codicils must operate: or at most, that it is a covenant to stand seized to the will of 1820, as a will, with the incident annexed thereto, of its being liable to be changed by qualifying codicils.

These are the grounds taken by Richard P. Dawson, and also argued on behalf of the plaintiff, although in his bill, he submits fairly to any judgment the court may make, and takes neutral ground. Josiah Dawson is entirely neutral, and John Dawson does not appear to have taken any notice of the matter.

On the other hand, the three younger sons of Richard Dawson, (Thomas H., William, and Samuel,) Mr. and Mrs. M’Kenzie, (formerly Rebecca Ann Dawson,) and Mr. and Mrs. Raiford, (the only child of Mrs. Wells, deceased,) contend that the instrument of the 3d of June, 1821, was duly executed as a deed, that it operates as a deed, that it specially attaches on the will of 1820, and renders the provisions of the latter irrevocable; and of course avoids the attempts made by the testator to qualify the same by his codicils.

Mr. M’Kenzie and Raiford take the additional ground, that their marriage with persons provided for in the deed, in connexion with the will, after the public registration thereof, enables them *254to stand as purchasers of the interests secured to their wives by those instruments; to deprive them of which would be a fraud upon them.

I believe the statement I have made is a sufficient preliminary to the discussion of the execution and effect of the deed. Any other facts which bear upon that inquiry, shall be noticed, as we1 proceed.

I should do violence to my feelings, if I did not acknowledge the obligations I owe to the counsel, (particularly to Mr. Law of Georgia,) for the information I received from their argument of this cause: an argument so abounding in manifestations of both candor and courtesy; so replete with the evidences of .judicious and industrious research ; so full to every point of law and fact, as to have far surpassed, upon the whole, any to which I have listened, not only since my call to the bench, but since I came to the bar. Only let this good example be imitated, and an enlightened bar and an instructed bench, the sure results, will at no distant day, impart, at- once, enviable rank to our forums and invaluable security to the rights of our citizens.,

The only abatement to the satisfaction afforded me by the luminous argument of the counsel engaged here,- arises from the mortifying conviction that I shall not be able, in my decision, to do justice to the instruction I have received. I shall content myself with making use of the legal positions established by the authorities and cáses quoted by them, without a very particular reference to-them' on my part; and shall endeavor to apply the facts, in a plain way, to the doctrines thus ascertained.

With respect to the execution of the deed. The hand writing of the grantor is proved. Of the two subscribing witnesses, Henry T. Williams, is proved to be dead ; and his hand writing is proved. Wm. R. Bettison, the other, is proved to have lived but about a 'year or two in the neighborhood; to have been an obs'eure person, who seldom wrote or signed his name ; that he left the neighborhood 16 or 17 years ago, and that it is not known whither he went, except by a report which has prevailed 10 or *12*years, that he died in Charleston. This is, I think, reasonable proof of the signing and sealing of the instrument, which, from the words *255employed over the subscriptions, is all that the grantor professes to have done, or the witnesses to have seen done. To this we may add the grantor’s general acknowledgement of a dee'd, (as testified by the tax collector, executed by himself,) under which he held his property in trust for his children.

Was the instrument ever delivered? I think there is no room to doubt, that after the grantor subscribed it, he retained the possession of it. The plaintiff denies that he ever accepted the trust; and it has not been proved that he did. The reasonable inference is that the paper was not delivered to him. There is no direct proof of a formal delivery. But it lias been insisted that the registration is delivery. Let us distinguish here between the effect of registration, as evidence of delivery, where the paper has come to the hands of the recording officer, from the hands of the grantor, and where it does not appear from whom the recording officer received it. It is contended here that simple registration is equivalent to' delivery, without regard to this distinction.

The argument is upon the words of the act of 1785, 1 Brev., 171, § 18; P. L. 381, 382, wherein it is declared that no conveyance shall be effectual “ unless the same be in writing, signed, sealed and *recorded: ”*from which it has been inferred that *recordl-ing*is substituted for delivery. That is to say, that whereas the definition of a deed had previously been, an instrument in writing signed, sealed and *delivered,*the act has changed that definition, and substituted for it, a written instrument signed, sealed and *recorded.*Passing by the observation that, allowing this argument to be sound, it can only apply to the lands covered by this instrument ; since the statute in its terms applies only to conveyances of lands : it appears to me that it would be more in the spirit of the argument to infer from the act, that delivery is *dispensed with*than that recording is substituted for it. The act does not declare that *recording*shall be a substitute for *delivery.*Nor does it declare that an instrument signed, sealed and *recorded,*shall be valid without delivery also. It leaves the common law definition in full force, and accumulates *another requisite,*(to wit: recording,) to the validity of the paper; and, after all, does not invalidate it, for want of recording, as between the parties to it, (as in the case before *256us,) but only as to third persons. If the argument were sound, that registration is, under the act, a term convertible with delivery ; then the act, which allows an *unregistered*deed to prevail *among*the parties to it, must, by just reasoning, give validity among the parties, to a similar instrument *though never delivered,*but retained, after execution, as an *escrow.*

It is believed that in all those cases in which *dicta*have escaped the court, to the effect that registration is delivery, the meaning really was that registration was some evidence of delivery; since there must have been a tradition of the paper to the officer before he could record it. It was the tradition, then, to the officer, and not the recording, which was in the mind of the court; and where the circumstances warrant the conclusion that the grantor has deliberately parted from the control of the paper, and that it has come from him directly or circuitously to the officer, for the benefit of the grantee, I think the fact, that the latter has been in possession of it, manifested by his recording it, may be taken for evidence of delivery. But that registration, *per se,*is equivalent to delivery, is a proposition not to be maintained. Registration is intended not to perfect the paper but to publish it; not to supply any essential part of its execution, but to record it as it is ; not to pass rights, but to give notice that rights have passed.

Marbury v. Madison. 1 Cranch, 137, did not turn on the question whether recording was delivery, but whether delivery to the recording officer was recording.

In Ingraham v.. Porter, 4 M’Cord’s R. 198, the judgment turned upon the form and effect of the deed. What the court said upon the subject of registration was not necessary to the decision. But the court does not say that recording is delivery; but that “ *delivery to the officer,*to be recorded for the benefit of the daughter, may be considered a sufficient delivery.” That is, that delivery to the officer for her benefit, or for a purpose beneficial to her, may be considered as a delivery to herself.

Again, it is insisted that the attestation of the deed having been sufficiently proved, and the witnesses being dead who would have proved its 'actual delivery, the fact of delivery is thereby established.

*257The cases quoted in support of this position fail of sustaining it as applicable to this deed. Most of therp were suits upon bonds and other instruments in the hands of the plaintiff; from which fact, and not from the proof of the attestation, the delivery was justly inferable.

I presume that whei’e the attestation is of a proper form, accounting for the non-production of the witnesses, coupled with proof of their signatures, will sufficiently prove delivery of the instrument. Attestation is evidence of what it professedly declares. But here the witnesses subscribe to an instrument which does not recite that it was *delivered,*but signed and sealed only.

I am nevertheless, of opinion, that there is proof sufficient to establish the delivery of this deed.

If the grantor parted from it at its execution, that was a delivery of it.

If he retained the custody of it, then it must have been he who delivered it to the justice, to take the affidavit of Williams ; and who again delivered it two years after its execution, with that affidavit upon it, to the Secretary of State, and afterwards to the register of conveyances, for recording. If it be said, that after the justice obtained possession of it, for the special purpose of taking the affidavit, he may have delivered it to the recording officers, without authority to do so; the answer is, that we are not at liberty to indulge in conjecture, when the fact, if it were true, might have been put beyond doubt, by calling the justice to establish it. The same degree of certainty might have been attained by examining either of the recording officers. Where then there were opportunities for certain proof, it would be unreasonable to draw a merely conjectural inference in favor of the party neglecting them. Besides, how did the grantor become re-possessed of the paper, unless it was he who put it into the hands of the officers ? We are not to suppose that public magistrates were so ignorant or faithless respecting their duty, as to have put a paper into his hands from whom they did not receive it, unless authorised to do so; and, least of all, into the hands of one against whose interests it operated to the extent of his whole estate; and who therefore, had a proportional motive to destroy or conceal it.

*258Now, when the grantor delivered the instrument for registration, with the affidavit of Williams endorsed upon it, that he had seen if not only signed and sealed, but delivered also, was not this an acknowledgement on the part of the grantor, himself, that the fact was so ?

Again. We have seen from Ingraham v. Porter, that delivery to a recording officer, for the benefit of the grantee, is a good delivery to the grantee himself. And although that was not a necessary point in the case, the position is entirely too well supported by authority to be doubtful. Then, let me ask, with what motive, unless for the benefit of the grantees, could Mr. Dawson have procured this deed to be registered ?

All this proof is strengthened by the declaration of the grantor to the tax collector, that he had made a deed, (importing, of course a valid deed, which includes delivery,) to his children, under which he held his property in trust. This corresponds with the effect of the paper now under examination; and may therefore, reasonably be applied to it: and must be, unless some other instrument of like effect be shown to have existed.

But the trustee says he did not accept the trust, and I have already said, that unless his declaration is disproved, we are to take it for true. The deed was not, therefore, delivered to him; nor was that necessary. A delivery to a third person, for him, was good until he should dissent. 2 Dyer, 167 ; *2*Leon. 110; 3 Rep. 26 ; 5 B. & C. 671 ; 12 Com. L. R. 351.

The trustee, although he says he did not accept the trust, does not dissent. Nor would he, nor will he, be allowed to dissent, to the injury of the *cestuy que trusts.*The delivery will be good for them; and this court would, if necessary, supply a trustee to support the trusts declared in the paper.

Its execution and delivery being established, what is the effect of the instrument ?

It imports the transition of interests, *in prcesenti,*out of the benefactor and into the beneficiaries. “ I do give to the children named in my will all my real estate and personal property.” “ I give up all.”

A consideration appears on the face of the paper. The persons *259to whom the bounty is bestowed, are described as his children ; a description implying the consideration of paternal duty arid affection.

The persons to whom the donation' is made are ascertained by the paper : not only by the description of children, but children named in his will, a co-existing instrument.

If there is any thing to prevent the instrument under discussion, from operating as a deed, it does not consist in a want of suitable parties, well ascertained, or of a consideration expressed, or of due execution and delivery. What, then, is wanting ?

It is said, correctly, that no instrument can operate as a deed unless it was so intended by the person who executed it. But it appears to me such was the intention with respect to this paper.

The observation that the word used, (“ give,”) is appropriate to a will, and not to a deed, is not warranted. ’That word always, wherever employed, imports a present transfer of right; unless accompanied by restraining words; In a will it is only restricted to a future operation, by the accompanying words, which show the instrument to be a will. It is the appropriate word in a deed, where the consideration is merely gratuitous. Its employment, therefore, does not disprove an intention that the paper before us should operate as a deed.

Then, it is argued that it does not sufficiently refer to the will of 1820, to incorporate the provisions of the latter with itself; and is therefore defective for the want of certainty in the limitations and quantities of estate and'the property given. But, in my opinion, it can refer to no other paper than the will of 1820. We are not to suppose that Mr. Dawson was guilty of so absurd a thing as to say, I give my property as I shall hereafter give it, and to such of my children as I shall name in the instrument by which I shall do so. Such a reservation of a power to appoint, as to property still in his possession, added to the fact, that no one child, if he never executed the power, could complain that *hz*was the child neglected, or enforce an execution of the trust — a reservation, in the construction of which, *“*I give up all,” means “ I keep all and give up nothing ” — would be an invention entitled to the palm among the highest efforts of genius.

*260It is evident that he referred to an existing instrument, and that of a testamentary character. The deed is in favor of the children “ named in my will,” excluding all others than those “ named therein.” The will of 1820, is the only one shown to have existed at the time. The two instruments incorporate: for the authorities show that the reference in an operating paper, to another-paper then existing, serves to ingraft the paper referred to, whether the latter be then operating or not. 2 Yes. jr. p. 226, 227,228; 1 N. & M’C. 386; 4 Dess. 623.

But putting both these papers together, shall the paper called a deed operate as a deed *†*

The argument is, that adopting the provisions of the will, it acquired a testamentary character itself, because the dispositions of property in the instrument adopted were to take effect, *in futuro,*at the death of Mr. Dawson.

If Mr. Dawson intended the instrument of 3d June, 1821, to operate as a deed, and it is not legally impossible that it shall so operate, his intention should prevail.

It is a benign principle well established, that if a paper, wearing the form of a deed, cannot operate as a deed, it shall (if that will not prevent its provisions,) be allowed as a testament. The converse is not true: what was expressly intended to have a testamentary effect, shall not lose its ambulatory and revocable character, and acquire a present energy, under any circumstances; since that would serve to rob the disposer of his rightful control, and must, therefore, necessarily be against his intentions.. But would it not be a perversion of principle, if the instrument we are considering was intended to be a deed, and can lawfully operate as such, to hold, merely because it might have been allowed as a testament, provided it could have had operation no other way, that therefore, it shall be deemed a testament and not a deed ?— What blighting of hopes, what destruction of just expectations, what ruin and impoverishment of families, led on to contract marriages,. to make costly purchases and heavy contracts, in consequence of the provision made for them in such instruments, would speedily ensue the declaration of a principle investing them with the new character of wills, and -putting it in the power of the *261grantor to defeat them, as the growing infirmities of age, operated on, perhaps, by an artful step-mother, might draw his affections from them ? Such a decision would not only lead to injustice, but would subvert the plain principle that papers are to operate most against those who make them and in favor of the other party.

The question then is, did Mr. Dawson intend this for a deed, and can it have effect as a deed ?

He had a testament already, the provisions of which he incorporated into this instrument. This instrument contains no provisions of its own; all its dispositions consist of those borrowed from the previously existing will. They are, then, identical; and I ask, if he intended the compound paper to have the identical effect of the pre-existing one, why did he execute the second ? What was his intention when he had the paper of the 3d June, 1821, proved and recorded ? Was it to have his will recorded in his lifetime *1*What was his understanding of the matter when he told the tax collector he had made a trust deed, and paid taxes as trustee of a trust estate ? What is his meaning when he says, in the instrument itself, “ I give up all ?” As the law stood, at the date of this paper, three witnesses were required to a will of land, but two sufficed for a deed of the same kind of property. This instrument carries land. Why, then, if he intended a will and not a deed, did he reduce the number of witnesses to two ?

Can the paper operate as a deed ? I shall not, after the decisions which have been made in this State, (Hill v. Hill, M. S. Columbia, 1837; Dukes v. Dyches, ib. 1829; see 1 Rice’s Digest, 208, §24; 1 Bail. 100; 2 Hill. 543,) trouble myself by enquiring whether a present vested interest, to be enjoyed *in futuro,*can be directly conveyed by deed, either as to realty or personalty.— That is a settled question. That is precisely the character of this instrument. The title passes now, by the deed, to take effect, in enjoyment, at Mr. Dawson’s death, according to the provisions of the will therein referred to. Himself is to stand seized in the meantime.

The gift is to the children named in the will; but it is according to the uses therein mentioned: which naturally brings under con*262sideration the limitations set forth in the will. Whether these limitations are válid, and what is the proper construction of the clauses creating them, are- questions not raised in the argument of counsel; and upon which the court, therefore, reserves its judgment.

The bill insists that the grantees of this deed are barred, because they did not interrupt Mr. Dawson’s enjoyment of the property during his life, by interposing their claim. For what purpose should they have interposed ? By the terms of the gift, their own right of enjoyment was postponed until the grantor’s death.— Mr. Dawson could not convert his possession into a destruction of their right. As life tenant, his possession was consistent with the deed ; and if it was not, I apprehend that he who has effectually declared a trust, if he retains possession, stands as much affected with notice of the trust, as a purchaser with notice from a trustee would he. How does Mr. Dawson’s case differ from that of a life tenant, who has received possession 'from the trustee ? — ■ Is he not to be regarded as a trustee for the remainder men ? According to my construction of the deed, Mr. Dawson was entitled to enjoy the property during his life; and the only purposes for which the remainder men could have come into court, would have been to substitute a trustee, to declare the trusts and to prevent waste. But if they were satisfied with his execution of the trust, felt satisfied that the trusts were sufficiently explicit, and were willing to submit to the waste, if any, I know not who can complain of their indulgent behaviour. As among themselves, (all parties to this suit standing in the same situation,) no one can impute laches to another, in this respect, of which himself is not equally guilty.

With respect to the after acquired property, if any, it would seem that Mr. Dawson, being life tenant and entitled to the profits, would be entitled as life tenant to property purchased by him with the profits ; and that such property, so purchased, does not pass under the deed, but must go under his will, (considered altogether as testamentary,) and the codicils. But property purchased by him with the *corpus*of the estate in his hands, should be subjected to the trusts which attached upon the property so employed. As *263this point was not raised in argument, I will reserve the judgment of the court upon it. The parties may go before the commissioner if they please ; and when he reports, the court will decide.

I say nothing on the peculiar ground taken by Mr. M’Kenzie and Mr. Raiford; because upon the grounds common to them and most of their co-defendants, the deed must stand.

My opinion, upon the whole, is that the deed of 3d of June, 1821, attaches upon the will of 1820, so as to fix and render no longer ambulatory or revocable, the provisions of the latter. And it is so decreed.

I am happy that the painful enquiry into the legitimacy of the three younger children of Richard Dawson, junr., was not pressed. They will, therefore, be considered lawful children, in any after proceeding which may take place in this cause.

Let the costs be paid out of the fund.”

The complainant and the defendant, Richard P. Dawson, appealed from the decree of his honor the chancellor, in this cause, and moved that the same might be so modified as to subject the whole of the estate to the operation of the codicil of 9th August, 1836. And in support of this motion relied upon the following grounds:

1. That there was no proof of any delivery of the supposed deed of 3d June, 1821; which, it is submitted, was essential to its perfect execution and operation as a deed: whereas, the whole of the evidence shows that it was never delivered, to, or for, either the trustee or any of the *cestuys que trust.*

*2.*That if thq execution of the deed were fully established, it is nevertheless wholly inoperative, by reason of the entire want of certainty, as well in the description of the property granted, as of the persons, interests and estates of the grantees.

3. That the want of certainty in the deed is not cured by the reference to the will of the grantor; because there is nothing in the deed to limit the reference to the will of 2d May, 1820, or to any other then existing instrument; the reference being not to any specific document, but to the donor’s will, which, *ex vi termini,*imports only his last will.

4. That even if the deed be not void for want of certainty, yet *264it can only operate as a conveyance to the uses of the last will of the grantor. And this was obviously the intention of the grantor, who supposed that he might, in this way, protect his property from creditors, whilst he preserved the entire control of it in himself; but who,never regarded it as other than his own estate, and never manifested any understanding on his part, that the deed had altered the character of the will of 1820, or rendered it irrevocable.

5. That if the reference in the deed were intended to be restricted to the will of 2d May, 1820, yet both papers, taken together, are but testamentary in their character, being to take effect only at the death of the supposed grantor: and if not testamentary, yet a just construction of every part of both instruments will render them only a conveyance to future uses, with a power reserved to the grantor to alter or revoke the uses.

6. That whether the gift were *in prcesenti,*or *in futuro,*it was never perfected by a delivery, either of the property, or of the deed, and was therefore void.

7. That if the deed were intended to take effect at the donor’s death, it was testamentary and revocable ; and if intended to take effect at its date, the rights of the donees vested instantly, and the subsequent possession by the donor was adverse to their rights, which are therefore barred by the statute of limitations.

8. That for other reasons, the decree is contrary to law and equity; nor can it be sustained on any view of the case made by the pleadings and the evidence.

This case was very fully and ably argued by Mr. Bailey and Mr. Colcock, on the part of the appellants, and by Mr. Law (of Georgia,) and Mr. Petigru, on the part of the appellees.

The Reporter has been kindly favored with an abstract of the argument of Mr. Law, but regrets that he is not able to give the arguments of the other counsel in the cause.

*Mr. Law for the Appellees.*

“ The first ground of objection to the decree of the chancellor, alleges the want of proof of the delivery of the deed.

The deed was executed in the presence' of two subscribing wit*265nesses, both of whom are dead, and therefore cannot be called to testify to the circumstances attending the execution.

In such case, the execution of the deed, including the delivery, is proved by proof of the handwriting of witnesses — and if that cannot be done, by proof of handwriting of grantor. 1 Phil. Ev. 419.

The handwriting of the attesting witness is evidence of every thing on the face of the instrument. — The sealing and delivery will be presumed. 1 Phil. 420, 1 Stark. 332, Milnard v. Temple, 1, Campb. 375.

The fact attested by the subscription of the witnesses is the sealing and delivery. Ev. Pothier on Obi. 154.

Very slight circumstances will authorize the presumption of a delivery, for it need not be proved by positive testimony, but may be inferred from circumstances. Peake N. P. Cas. 146; 2 Bos. 6 Pul. 217,3 Mason’s Rep. 398.

In the case cited below, it was held that proof of signing a bond which purported to be sealed with the obligor’s seal, was evidence to be left to the jury of sealing and delivery. Talbot v. Hodson, 7 Taunt. 251, 2 Dali. 96.

In this case we have higher evidence of the delivery — the affidavit of an attesting witness, made for the purpose of the registration of the deed.

And when it is considered, (as the evidence abundantly ascertains,) that this affidavit was made at the instance of the grantor, and the deed procured to be recorded by him, it amounts to a re-acknowledgment by him, at that time, of the truth of the facts stated in the affidavit.

I consider it sufficient, says Mr. Evans, that the party should in any manner testify his intention of delivering the instrument as his deed, having it in his presence. 2 Pothier, 144.

No particular mode of delivery necessary; it is sufficient if a party executing a deed, treated it as his own. 4 Term Rep. 313.

The defendant, in his answer, states that he and his wife *may have used*the formal words of delivery. The chancellor says, “in the absence of clear and positive proof that there was no delivery, I should conclude from the defendant’s answer alone, (it being *266silent as to any conditions or stipulations at the time of execution,) that there was then a *delivery of the deed in judgment of*law.— It is obvious here that the chancellor presumed the delivery from the signing and sealing, and threw the proof of resisting this conclusion upon the defendants. 1 John. Ch. Rep. 252.

We ask for the evidence by which the presumption arising in this case, from signing, sealing, and treating it as his deed, by procuring the affidavit to be made, and the registration of the deed, is to be repelled. There is no evidence of any qualifying conditions or stipulations, or reservations made at the time. And surely the allegation in the bill, that the trustee never accepted the trust, nor acted upon the deed, will not be received to raise an impression against its due execution — and for the following reasons: 1. not legal evidence, it is the allegation of a plaintiff not upon oath.— *2.*He is directly interested in defeating the deed. 3. It was not necessary that the deed should have been delivered to him. It was not necessary that the trustee should be present at its execution— a delivery may be by acts,- or by words without acts. A man may use the formal words of delivery and hand the deed to any person for the grantee. 12 John. Rep. 536.

Neither will the retention of the deed by the grantor, in *his*possession until his death, repel the evidence of a formal execution of this paper.

If the grantor retain a voluntary deed, it is still good, unless there be clear proof that he never parted, nor intended to part with it; and there must be other circumstances beside the mere fact of retaining it, to show it was not intended to be absolute. 1 John. Ch. Rep. 256.

The act of 1785, requires that conveyances shall be made in writing, signed, sealed.and *recorded.*Now we do not intend to be understood as contending, that the effect of this act is to dispense with the common law requisite of delivery, so as to make a deed valid, which has been signed and sealed, and never in, any manner promulgated. But the legislature in this act undertake to define and prescribe the requisites of a deed, and when they omitted to mention delivery among these, they must have supposed that they had embraced this indispensable requisite in the acts prescribed to be *267*performed. When,*therefore, a deed is recorded, that act furnishes the evidence of its delivery. ■ Suppose the legislature had omitted *signing,*but signing is required by statute. Well suppose they had omitted the word *sealing,*that is a common law requisite. The stat. of Car. superadded the requisite of attestation by witnesses. But the legislature of Rhode Island, in their act omit it, and Judge Story held, forasmuch as it was not required'by the statute, a deed would be good without such attestation. West v. Randall, 3 Mason, 181.

We think it equally certain that the same decision would have been made, if signing or sealing had been omitted. But in this case we are pressed with the argument arising from the indispensable character of delivery. Since a man may make a paper in private, and lock it up in his drawer, without ever saying a word about it, and it would be a nullity. The legislature then must have considered the placing the deed on record, equivalent in point of evidence to actual proof of delivery. -

The opposite party may resist this inference, as they might disprove evidence of actual delivery, by showing that it was delivered as an *escrow; so*here, they may show the circumstances evincive of intention under which the registration was made.

The requisites prescribed by the act are *“probate*and *registration.”*

In England, if a deed is enrolled which needs enrolment, a copy shall be received in evidence. The same distinction, if correct, must apply to proof by witnesses, &c., therefore, a *bargain and sale*which needs enrolment, may be given in evidence without proof. Gilb. 97, 99, Ev. Poth. 155. Smartle v. Williams, 1 Salk. 280. Bull. N. P. 356.'

The delivery of the deed to the officer for record, by the grantor, was a delivery for the use of the *grantee*and will enure to his benefit.

I am aware that it has been said, that a delivery to a stranger, without authority from the grantee to receive if, was no delivery.

We respectfully submit that the better opinion is, that such delivery to a stranger, will enure to the benefit of the grantee, and bind the grantor until the grantee dissents.

*268Where A. delivered a deed to B., to deliver over to C. as his deed, and B. did so, and though C. refused to accept of it: Held that the deed enured from the first delivery: because it was not delivered as an escrow, or upon a condition to be performed.— Taw’s Ex’or. v. Berry, 2 Dyer, 167 — b. Alford & Leah’s case, 2 Leon. 110.

Lord Coke explains this point by admitting that C. may refuse the deed in pais, when offered; and then the obligation will lose its force ; but it having been his deed until refused, he may not plead *non est factum.*Butler & Baker’s case, 3 Coke. 26 — b.

Such was the law of England at that day, and such, a recent decision of the King’s Bench declares it to be at this.

It will be perceived, that the stress of the reasoning is founded on the idea, that the delivery to his sister, with the declaration, that it belonged to Garnons, might have authorized the sister to refuse its re-de'livery to him. That it was, therefore, in effect, relinquishing his control over it, and therefore a valid delivery, and the paper would enure to the benefit of Garnons. But the control of the paper is as effectually put out of his power by registration; for although he may reclaim the original, yet the donees may, at any time, have procured a copy from the record, and compelled the adduction of the original, or had the full benefit of the copy upon its refusal. Doe v. Knight, 5 Barn. & Cresswell, 671. 12 Com. Law., 351.

The case of Nalred v. Gilman, was that of a copy surreptitiously obtained, the grantor having destroyed the original.

This argument is strengthened by the local act to which reference has been made, which makes registration necessary to the validity of the deed.

It seems, says Kent, to be the rule at law, that a deed so executed and delivered, (i. e. to an unauthorized agent,) will bind the grantor, if the grantee can, at any time, and in any way, get possession of it.. 4 Kent’s Com., 447, note c.

The deed may operate by a presumed assent until the dissent appears. 3 Preston on Abstracts. 104.

We say the moment the deed was put on record, the grantees could have ayailed themselves of it at law.

*269The proposition advanced by our adversaries is, that by the evidence the deed was never delivered *to,*or *for*either the trustee, or any of the *cestui que trusts. -*

But we have shown that it is sufficient, if the party executing a deed, treated it afterwards as his deed ; and sufficient, if he make such a delivery of it to any one, though a stranger, that the grantee can avail himself of it.

Did he not treat it as his deed, when he placed it on record ; when he associated with it, on record, the will to which it referred ? When he again recorded it in a second office ? And when he returned the property afterwards as trust property ?

I shall proceed to consider the second and third grounds, assumed by the appellants in the notice furnished conjointly. They assail the imperfections of the deed; allege its entire want of certainty in all essential particulars; and deny that this is remedied by its reference to, and union with, the will of May, 1820.

In discussing these questions, your honors will pardon me for a few general observations and authorities upon the subject of- the formal and necessary parts of a deed; or, in other words, how informal an instrument may be a good and valid deed. It will assist me as I approach immediately the more particular argument.

The component, necessary and essential parts of a deed may be reduced to the following: names of parties, the consideration, description of the thing granted, and quantity of interest conveyed. To which may be added, (if there be any,) covenants,' conditions, &c. 4 Kent’s Com., 451.

Sir Henry Spelman, speaking of the Saxons, says they used no set forms in their deeds, but honest and perspicuous words, to express the thing intended, with all brevity, yet not wanting the essential parts of a deed, as the names of donor and donee, the consideration, the certainty -of the thing given, the limitation of the estate, the reservations and names of witnesses. Spelman’s works, 234, cited 4 Kent, 451.

Lord Coke says, if a deed of feoffment be without premises, *habendum, tenendum, reddendum,*clause of warranty, &c., it is still a good deed, if it gives lands to another and his heirs, with*270out saying more, provided it be sealed and delivered, and accompanied with livery. Coke Litt., 7 a,

Chancellor Kent says, in the United States, generally, the form of a conveyance is very simple. It is usually by bargain and sale, and possession passes *ex vi facti,*under the authority of the local statute, without the necessity of livery of seisin, or reference to the statute of uses. In Delaware, Virginia, and Kentucky, deeds still operate under the statute of uses. 4 Kent. 452.

In Massachusetts, under the provincial act of 9 Wm. 3, a simple deed of conveyance, without any particular form, and without livery, was made effectual, provided the intention was clearly declared. Durant v. Ritchie, per Story, J. 4 Mason, 57.

The learned chancellor of New-York has favored us with a brief form of a deed, which he considers good to convey a fee in any part of the United States, viz:

“ I, A. B. in consideration of one dollar to me paid by C. D. do bargain and sell to C. D., and his heirs, the lot of ground, (describe it.) Witness my hand and seal.” 4 Kent, 452.

In the analysis of this paper, we look to its character. It is a gift; and the appropriate word of conveyance is *give.*

Gifts are distinguishable by the term, *give,*being introduced into the deed when the conveyance is gratuitous, and which expresses rather the motive of the party conveying, than any particular description of conveyance, for in other respects the terms are the same as in any other conveyance, which may equally well operate as, and be termed, *a gift,*if it be not for a valuable consideration. 1 Chitty’s General Practice, 309.

In strict connection with the character of the deed as a gift, is the consideration.

A good consideration is that of blood, or natural love and affection, when a man grants an estate to a near relation; *being*founded on motives of generosity, prudence and natural duty. 2 Black. Com. 296, 297.

The dictum of Judge Blackstone, that a deed made without consideration is, as it were, of no effect, as it enures only to the use of the grantor, Mr. Christian conceives to be only true of a bargain and sale, for herein it is said to *differ from*a *gift, that*this *271may be without any consideration or cause at all; and that hath always some meritorious cause moving to, and cannot be without it. See note to Black, and 3 John. Rep., 486. Shep. Touch. 221.

All deeds made without consideration, or upon good consideration only, are merely voluntary — they are *gifts.*And a gift, considered as a mere voluntary conveyance, will be good as against the grantor, even in favor of a stranger.

It is true, that in this deed, no consideration is expressed, it is not said, “ in consideration of love and affection,” &c. Neither was this necessary, for it is equally true, that a gift to a near relation imports a consideration, though it be not expressed.

In illustration of this point, we shall presently argue upon the *reference to the will.*

Spencer, J., speaking of a covenant to stand seized, says, the great and leading requisite is the consideration of blood ; and it need not appear, in form, to be the consideration expressed; if that appears from the deed it is enough. Jackson v. Sebring, 16 John R. 518.

-In the same case, the chancellor says, whether any consideration be expressed or not, if the parties be of one blood, the law implies a good one, arising from the natural love and affection between the parties — citing Ld. Bacon on the uses of the law, 151; Goodtitle v. Petto, Strange, 934.

The case in Strange was decided in favor of the lessor of the plaintiff in ejectment, because 1st, he was named in the covenant to stand seized ; and 2d, he averred in the pleadings that he was the nephew of the covenantor.

B was seized of the premises, and he and his wife, in consideration of the natural affection and paternal love which he had for his sons, James and Michael, and for their better preferment and advancement, covenanted to stand seized to the use of himself, for life, and after his decease, to the use of his wife for life, and after their deaths, to the use of the sons in tail. The question was, whether any use arose to the wife or not; and it was resolved, if a man covenant, &c. to the use of his wife, son, or cousin, it shall raise a use without any express words of consideration. Bedell’s case, *7*Coke. 133 — cited 20 John.. 88.

*272In this case, it is ascertained by the very deed itself, that the gift is to the donor’s children, and consequently the'law implies a good consideration, without its being expressed in the deed.

The intention of the party must be so clearly declared that the court can, with reasonable certainty, ascertain it. All uncertainty here, is removed by the reference to the will; and the rule is, that when an instrument refers to another already written, that other makes a part of the instrument. 2 Yes., jr. 226, 227, 228, 4 Dess., 623; 1 Nott & M’Cord, 386.

A deed may refer to any collateral authenticated writing, when the terms of such writing will be considered as incorporated with the deed. 1 Henry Black. Rep. 254.

By reference to the will, the names of the donees are ascertained with as much precision as if they had again been repeated ; and the expression, “ *and the use therein rhentioned”*ascertains with all sufficient clearness, that the donor 'intended them to take, in the proportions or according to the limitations in the will.

Two prominent objects seem to have pervaded his mind, and to have prompted the accomplishment of the act. The first was to exclude all and every person, who might have claims upon him, from relationship from any participation in his estate ; the second, not wholly disconnected with the first, and perhaps designed the better to accomplish it, was to transform that which was before ambulatory, and without effect, until his death, into a present subsisting vested interest. There is nothing which indicates an intention to change the terms of the original instrument as to the proportions and limitations of the estate conveyed; but on the contrary, a confirmation of them by reference to, and adoption of that instrument, without alteration in these particulars. The appointment of a trustee, too, to carry into effect these uses and limitations, none others having been declared by the deed, evinces the intent that they were not designed to be changed.

Thus, then, the argument on this point is two-fold : 1st, from the positive testimony derived from the express reference in the deed to the will for the names of donees, and the use therein mentioned. 2d negative, from the fact that no other uses are declared, or limitations mentioned in the deed ; and consequently there would have been nothing for a trustee to accomplish.

*273One of two conclusions seems to us inevitable; either the deed adopts the will entire, or so far as the donees’ names are concerned.

If the former, then the will ascertains, with unerring certainty, all essential particulars ; if the latter, the deed gives the whole estate among the children named in the will, and the law will imply an equal distribution.

It is not necessary that the devisees or legatees in a will should be personally named, any general description, designating the person, is enough, if sufficiently certain, to ascertain the person.

But here we are met with the suggestion, that it was not the will of 1820, but his last will — some will to be made, to which the deed refers.

Let us look, iri the first place, to the terms of the deed itself: — ■ “ to my named children in my will — and I do acknowledge *this day*to be them, and no others than those that *are named*in my will.” *This day,*those1 that *are*named, (not *to he*named,) *I give up all.*

Would not the construction contended .for, do violence to the very terms employed ?

But the argument is by no means limited toa critical exposition of the words of the instrument.

Contemplate the position of the donor, under the construction contended for. It is contended that this instrument is testamentary. Then. the testator is made to reserve a power by which he is to alter or revoke his will. This would be absurd, since having parted with nothing by his will, whatever he should thereafter do in altering or revoking it, would not be by virtue of any power reserved in, or derived from the will, but from his unimpaired ownership. Since the will could not take effect till after his death, when he could no longer alter or .revoke. But the learned counsel will now be pleased to consider it a deed. Well, let us concede that a man may convey his property to a trustee, upon such trusts as he shall thereafter declare by deed or will. The legal title in such a case would pass to the trustee, with a resulting trust to the grantor.

There is no express reservation of such a power here, and it *274must be argued upon the presumed intention of the party. But what is the rule of law as to such an implied or resulting trust.

It is a general rule, that the law never implies,-and equity never presumes such a trust, except in case of absolute necessity. Cook v. Fountain, 3 Swanst. Rep. 591, 592.

Or to take the rule as modified by an American jurist, such trust is never presumed as intended by the parties, unless, taking all the circumstances together, that is the fair'and reasonable interpretation of their acts and transactions. 2 Story’s Equity, 439.

There are other rules in aid of this in its application. As 1st, where a conveyance is made without consideration express or implied, or any other use or trust stated. There the presumed intention is a resulting trust for the grantor. But if there be an express declaration, that it is to be in trust, or for the use of another person, nothing will be presumed against such declaration. Or if there be either a good or a valuable consideration, equity will immediately raise a use or trust correspondent to such consideration, in the absence of any controlling declaration. — Ibid 440.

So, if a man makes a conveyance, and parts with or limits a particular estate only, and leaves the rest undisposed of.

If there be a consideration, though purely nominal, and no use declared, the grantee takes the whole use.' — Ibid 442. *

*Colcock, Bailey, De Treville,*for the motion.

*Petigru, Law,*contra.

Curia, per Johnston, Chancellor.

This court is satisfied with the decision of this case on the circuit^ and it is ordered, that the appeal be dismissed, and the decree affirmed.

The court may hereafter add something in confirmation of the view taken by the chancellor.

David Johnson and Harper, Chancellors concurred.