The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-07-17
WINNIE 0. DAVIS, ct al.
VS..
EUGENE WILLIAMS, ct al.
Judgment affirmed.

Appeal from the Chancery Court of Gre
NADIA, county Hon. j. b. Morgan, Chancellor
Robert Williams ST., died in 1878, in
Grenada county, leaving large estate con-
sisting, in part, of valuable lands situated
in this State. He left will, by which he
disposed of none of his property except
some real estate in the city of Memphis.
Tennessee. For several years he had
kept box containing valuable papers,
in bank in the town of Grenada After
his death, the key to said box could not be
| found. 1t was opened by another key,
and in il were found several deeds dispos-
| ing by gift, of said lands in this State to
some OF his grandchildren. Said deeds
bore date, some in 1874, and the others in
1875, were duly acknowledged but not re-
corded. Folded in each of said deeds was
| a separate piece of paper containing these
words: 81 hereby direct that this deed be
handed to my grandchildren therein named.
as | have mado deposit of it for safe keep
ing and to avoid destruction, for their sake
and benefit" and was signed by said
Williams.
Did these facts constitute Il deIigcly of
the deeds! (Only one of them is involved
in this suit.)
Fitzgerald ~ Whitfield for appellants.
r. II. Golladay for appellces.
CAMPBELL, j.,
Held-
1. Whether there has been such deliv-
cry of an instrument under the seal of the
maker, as to make it operate as his deed, is
Il question of intention on the part of the
maker. If he considered it az fully exc
cuted and operative according to its terms,
and intended it to have effect from GER
tain date, that is sufficient delivery to
give it effect. The mere fact that the
maker retains the instrument in his own
possession, and under his own control, if
he has once etfectually delivered it, does
not prevent it from being enforced.
2. A careful consideration of the facts
disclosed by the record, as to the intent
and understanding of Robert Williams, ST.,
with reference to the paper averred by the
bill to be his deed, has convinced us that
ii was ReUer deLSUered as such. 1t is certain
that he had it drawn, and signed it, and
acknowledged 1t before a Justice of the
Peace, who certified such acknowledgment,
but it is equally certain that he did not
then deliver it or intend that it should then
become operative. The separate slip of
paper signed by Robert Williams and
placed within the folded paper alleged
to be deed, is without any indication of
the purpose of the maker, as to when the
instrument should take effect as his deed.
The separate slip did not constitute deliv-
cry, and was unnecessary, if delivery was
made. 1t indicates that the making and
acknowledging the instrument was precau-
tionary; that the maker then intended
to make the disposition of his property in
dictated by the instrument he subscribed,
and that he did not intend it to take effect
Immediately, but at some time IN the future,
when he should see proper, and therefore,
he retained control of the instrument.
3. The instrument cannot be upheld as
deed, for want of delivery. 1t is not valid
as testamentary act, because it is not
attested by witnesses; nor wholly written
and subscribed by the maker.
Decree reversed, and bill dismissed