There is nothing to leave to the jury, from which to infer an execution of the will according to the laws of this state. We do not say that the case of an execution similar to this could not be accompanied by circumstances which would induce the court to leave it to a jury to infer an execution in proper form, as in the case of an execution abroad between citizens of Delaware, before Delaware witnesses, under the known direction of a Delaware lawyer; which would all be circumstances from which a jury might reasonably infer an execution according to our law. But here is a Pennsylvania testator, scrivener and witnesses; they were conveying Pennsylvania property as well as Delaware property; personal as well as real; and there is no reason to infer or presume without proof, that in this case the parties looked beyond their own law, and looked to and observed the requisites of our law. It is a known inference and a reasonable one, that the parties to a paper of a solemn character are to be presumed to know the law, but this presumption extends only to the law of the place of their residence where they are acting. Now by the law of Pennsylvania, there was no necessity that the witnesses should subscribe the will in the presence of the testator, which our law makes necessary. The attestation does not state that it was so signed, and the proof is simply of the handwriting of two of the three subscribing witnesses. This mode of attestation does not satisfy the requirements of our act, nor is there any reasonable ground in this particular case to infer that the parties had any reference to the Delaware law at the execution. It is true the authorities read show that in England the courts leave it to a jury to infer if they choose, a proper execution, though the attestation be not full; but this is where the execution is by English parties, under the *Page 507 direction of English conveyancers, the former of whom are presumed to act in reference to the law, and the latter to know the law. We would do the same with a will executed in Delaware, on proof of the handwriting of witnesses, even to a defective attestation; and we do not say that the case cannot arise, where we would leave a foreign will to the jury. On the present case, we see nothing which would justify the jury to find that these witnesses did sign in thepresence of the testator, and from which to infer a proper execution of this will.
Campbell. — The decision of the question as to the will, abridges the argument, and confines it to a question arising on the deed of trust. "We contend that the deed of trust to Bush et al, conveyed the estate to the trustees for the cestui que trust, which could not be affected by the refusal of the trustees to act, and that the delivery was good. 12 Eng. Com. Law. Rep. 351,Garnon's lessee vs. Knight; Prec. in Ch'y. 211, 235.
Bayard. — The placing a deed on record puts it out of the grantor's power to deny the delivery. The record estops him. A deed cannot be recorded without delivery; if the grantor voluntarily puts it on record he admits the delivery, and is estopped from denying it afterwards. I admit that a fraudulent placing a deed on record against the grantor's will would not have such effect; but I take the case before us of a voluntary recording by the grantor himself. I Salk. 280; 2 Vernon; 5 Barn Cres. 651. The effect of placing a deed here on record, is to make a copy of it evidence, and that with-any proof of delivery. The recording of a deed cannot take place by the act of the party, without delivery. The fact of recording is proof of delivery.
Ingersoll, contra. — The delivery of the deed cannot be without the intention of the grantor to deliver, and it is for the jury to say whether Isaac Jones everintended to deliver this deed. Unless the jury say that, this deed can never stand as a defence to protect these defendants from the recovery which the plaintiffs have already been decided by the court to be entitled to, notwithstanding the will. Recording is not delivery. It is only evidence of delivery, which I agree it is prima facie; but it may be consistent with an intention not to deliver, except, under certain circumstances, which may never happen; and, if this be conclusively proved to rebut the prima facie evidence of delivery furnished by the recording, it is no deed. The formal execution of a deed before witnesses is evidence of delivery prima facie, but which may be rebutted by proof of contrary intent; the recording is but another circumstance which may be also rebutted. There is no delivery known to the law but an actual delivery; it may *Page 508 be of two kinds, absolute or as an escrow, yet in either case anactual delivery; this may be proved in various modes, but every form of proof may be rebutted by other evidence. Even the actual handing of the paper might be rebutted and shown not to amount to a delivery.