This opinion turns largely upon the interpretation given to the testimony of one witness, L.L. Horney. He was the only person who testified to the circumstances surrounding *Page 404 the making of the deed. In substance he related that Robinson came to his store to see about this particular deed; that Robinson then told witness he wanted to change the deed he had first made to Mrs. Adams and wanted to make a new deed to Mrs. Adams and Leonette Thannert, with some provision therein for a life estate. Robinson further said he did not want the deed to take effect until after his death. Horney prepared the deed and Robinson told him to hold it until after his death, but did not give Horney any other instructions concerning it. Witness said he had some discussion with Robinson about the execution of this deed; that these children might be able to take possession before his death and that some provision should be made and that was done by inserting the quoted provision in the deed. Horney said the reason the provision was inserted in the deed was to protect Robinson from being dispossessed of his property before his death. Robinson never said what was to be done with the deed after his death; he only wanted to make sure the deed would not take effect before his death. Robinson had witness make two deeds — the first one was taken up by him, the last one is the deed in dispute. Mrs. Adams and Leonette Thannert were not aware of the existence of the deed wherein they were grantees until after the death of their father, when Horney gave the deed to Mrs. Adams.
In a deed a grantor is presumed to intend what his words import, and less latitude is permitted in construing a deed than a will. (Coogan v. Jones, 278 Ill. 279.) The intent of the grantor will be given effect if not contrary to some positive rule of law. (Woods v. Seymour, 350 Ill. 493.) A deed must take effect upon its execution and delivery or not at all. (Patten v.Knowe, 354 Ill. 156.) It must be kept in mind in deciding the issue that the deed was the unilateral act of Robinson and not the result of negotiation between the parties. The words, "This deed shall not be in effect until after my death" stand in need *Page 405 of outside aid in construing them. Extraneous and surrounding circumstances of the execution of the deed can be used in such cases. (Dick v. Goldberg, 295 Ill. 86; Cutler v. Garber, 289 id. 200.) We derive such aid here from the testimony of Horney.
As to the first deed, Horney was unquestionably the agent of Robinson, for Horney relinquished this deed to Robinson upon request. As to the second deed — the one in issue — Horney was also undoubtedly the agent of Robinson in its preparation and execution. Whether Horney continued as the agent of Robinson after the deed was left with him, or became the agent of the grantees, by designation of the grantor or by operation of law, must be determined from Robinson's intention as to when the deed should be delivered.
The primary intent of Robinson was that the two daughters should receive the sixty acres in such a manner that they could not dispossess him of it. Robinson was insistent that this should be accomplished by Horney phrasing the deed so it would not take effect during his lifetime. Regardless of whether the quoted language under the circumstances reserved a life estate, the fact remains that the deed was to take effect only after Robinson died. Robinson did not at any time, or in any manner, instruct or empower Horney to do anything with the deed, except to keep it until he (Robinson) died. In the light of the understanding of their relations concerning the first deed, the sole instruction to Horney, to keep the second deed until Robinson died, does not, of itself, connote the imposition of any different duty upon Horney respecting this second deed. From the evidence Horney appears as nothing more than the custodian of the deed for safe-keeping. His only obligation or duty was to Robinson.
The death of Robinson terminated the agency of Horney, as the evidence fails to show that he had any duty to perform after the death of his principal. The delivery *Page 406 of the deed to Gladys thereafter, was the independent act of Horney. The case of Hoyt v. Northup, 256 Ill. 604, is cited on the theory that delivery of the deed is presumed. In that case the facts were quite different, and the evidence disclosing the intentions of the grantor respecting delivery was more voluminous and certain, than in the present case. There it was shown the gift by deed was really made in payment of notes, one of them outlawed, given in satisfaction of valuable services rendered the grantor during a course of years. The presumption of delivery involving a deed of voluntary settlement should not be allowed to stand in this case against convincing evidence to the contrary. The burden was upon appellees in this case to establish the delivery of the deed to Horney to be a constructive delivery to the two daughters. In my judgment they failed, and the circuit court erred in decreeing that the deed was constructively delivered.