The action was brought to set aside a deed bearing date the 1st •day of May, 1891, of 220 acres of land in the county of Chautauqua, made by the plaintiff and her husband, Henry J. Newton, since •deceased, to the defendant, the son of Henry J. Newton, but left in escrovt, with two other, deeds executed at the same time, the contents of which were not shown by the' evidence, to be delivered on the death of the husband. The deeds were subsequently recalled from escrow by said Henry J. Newton, with the intention of making some changes therein, and they remained in his possession for a period of a year or a year and a half. About the middle of December, 1892, the deed' in question came into the possession of the defendant. The plaintiff testified that she delivered it to the *97■defendant on his representation that her husband desired it for the purpose of comparing it with "a map. The defendant called his son-in-law, Dr. Nash, and George P. Newton as witnesses. The former testified that, at the house of the decedent, about the middle of December, 1892, decedent produced this deed and handed it to the defendant saying, “ There was a deed of a portion of the property that he intended to give him.” The other witness corroborated this incident and stated that decedent said, “ It was a deed he had promised him (referring to the defendant), and for him to bring up Sackett and he would make out some more as he had promised.” Defendant denied that he received the deed from plaintiff as stated by her, and testified that he received it from his father. Decedent lived at Silver Creek and was in feeble condition physically and had not been out of his house for some weeks prior to the 12th day of January, 1893. Hr. Sackett resided at Irving, about three miles distant. Subsequently, and several days prior to the date last given, defendant brought Sackett to the decedent’s house, where he remained for an hour of two conversing with the decedent, in the presence of defendant, about the changes he intended to make in the disposition of his property. A map of Cattaraugus village' was needed ; this was obtained and Sackett returned with the defendant •on the 12th of January, 1893, and prepared three deeds, one of which running to the defendant was executed by the decedent and plaintiff; •another ran to the plaintiff and was executed by her husband .alone; the third is not material to the questions under consideration. These three deeds were executed and acknowledged on the 13th ■of January, 1893. The deed to plaintiff embraced fifty acres of land, which had been included in the deed of May 1, 1891, to the ■defendant. The deed to the defendant, executed at this ' time, did not include the premises deeded to the plaintiff, but, by express provision, referred to the deed to her and excluded the premises •embraced therein. These three deeds were then left in escrow, to be delivered upon the death of the decedent, which occurred on the 5th day of March, 1894. The defendant retained possession of the .deed of May 1, 1891, and caused it be recorded on the 23d day of November, 1893. The plaintiff’s "testimony, while not very clear, indicated that she understood that the prior deeds were to be *98destroyed when the deeds of January 12, 1893, were executed. She -testified that she destroyed two of "them at that time; that she inquired for the third and defendant said he had it in his pocket and that his father told him to take it and destroy it. Defendant, denied this testimony given by his stepmother, and claimed to be ignorant of the contents of the deeds executed .on January 12,1893, but he understood that ope of them ran to him. The defendant, claims title under both deeds. He obtained the deed of January twelfth running to him four of five days after his father’s death and then became aware of its contents and caused it to be recorded- on the 7th day of April, 1894. The deed to the plaintiff had been recorded on the twenty-seventh day of the month preceding. :
The referee found that the deed of. May 1, 1891, was delivered to the defendant in the month of December, 1892, and'that it was. - a gift to him from his father, as was also the deed of January 12, 1893. He- also found that at the time of executing the deeds of January 12, 1893, the decedent had forgotten that he had conveyed the said fifty acres to the defendant by the prior deed.
There is no evidence that the - mental faculties of the decedent were in any manner impaired, and we are of the opinion that this conclusion of the learned referee was erroneous. While the decedent may have handed the first deed to the defendant, on the occasion _ alluded to by the witnesses, three or four weeks prior to January 12, 1893, it quite clearly appears, and by a fair preponderance of the evidence, that this was not intended as, and did not constitute, a. legal delivery to pass title to the premises described therein. The-decision of the referee would be more satisfactory had he made-findings on the other material questions of fact in the case which were controverted. He has found - as a conclusion of law, not. merely that the plaintiff acquired no interest under - the deed from, her husband, but that .she has no title or interest in the premises..This would bar any claim for dower therein.
If the defendant obtained the deed from her on false representations, as she testifies, then a subsequent delivery by his father to-him, without her consent, could not cut. off her dower interest in the premises, inasmuch as she had executed the deed merely for the-purpose of delivery upon the death of her husband and evidently as part of a scheme, subsequently changed, by which he was. dis*99posing of Ms property and she was receiving some corresponding benefit or equivalent for her dower interest. (Simar v. Canaday, 53 N. Y. 298; Jackson v. Rowland, 6 Wend. 666 ; Artcher v. Whalen, 1 id. 179; Pendleton v. Hughes, 65 Barb. 136; Green v. Putnam, 1 id. 504; Clark v. Gifford, 10 Wend. 310 ; Jackson v.. Catlin, 2 Johns. 259; Brown v. Starke, 3 Dana [Ky.], 316; Ladd v. Ladd, 14 Vt. 185; Leland's Appeal, 13 Penn. St. 84; Russell v. Russell, 50 Barb. 445.)
The equity of this casé as presented by the record is with the plaintiff, and the decision works an injustice to her. It is manifest that she joined in the deed of January 12, 1893, to the defendant, which embraced a large tract of land not covered by the former deed to him, thereby cutting off her dower interest therein, on the understanding and entertaining the belief that-she was to receive, by the deed to her, good title to the fifty acres. The defendant cannot be permitted to accept and enjoy the fruits of her deed, executed under such circumstances, and at the same time claim the. fifty acres under the prior deed to him, which she understood was to be" destroyed or was superseded by the proceedings of January 12, 1893.
Aside from any question of fact, it may be observed, without deciding the point, for the reason that it has not been fully argued' and may not be properly presented by the pleadings, that there is room for serious contention that the defendant, by' accepting the deed of January 12, 1893, recording the same with full knowledge of its contents, and claiming possession and title thereunder, is estopped by the express reference therein to the deed of the fifty acres made at the same time to the plaintiff, from claiming title to-said fifty acres under the former deed of May 1,1891. (Sayles v. Smith, 12 Wend. 57; Jackson v. Ireland 3 id. 99; Jackson ex dem. Munroe v. Parkhurst, 9 id. 209; Denn ex dem. Colden v. Cornell, 3 Johns. Cas. 174; Sinclair v. Jackson, 8 Cow. 543; Chloupek v. Perotka, 89 Wis. 551; Sepulveda v. Sepulveda, 77 Cal. 605; Orthwein v. Thomas, 127 Ill. 554; Bowman v. Griffith, 35 Neb. 361; Emeric v. Alvarado, 64 Cal. 587; Thompson- v. Thompson, 19 Maine, 235.)
While it is held in the case of Thompson v. Thompson (supra) that a party may accept a deed of correction embracing additional-*100lands, omitted by mistake from a former deed, and claim under both, .which doctrine appears sound, the reasoning of the court tends to support an estoppel on facts such as aró here under consideration.
■ We. are constrained to grant a new trial in this case upon the ground that the findings of the referee, that the deed of May 1, 1891, was delivered by the decedent -and that when he executed the deed of January 12, 1893, to the plaintiff, embracing the same premises, he had forgotten the delivery of the former deed, are contrary to the probabilities of the case and against the weight of evidence. The judgment appealed from should be reversed and a new' trial granted, with costs to the appellant to abide the event.
All concurred.
J udgment reversed and a new trial ordered, with costs to the appellant to abide the event.