I concur in the reversal of this judgment. William H. Webb was the owner of the property in question, subject to an inchoate right of dower of his wife. Mr. and Mrs. Webb made an agreement between themselves as to the disposition of this property, which was evidenced by three instruments executed simultaneously and which, I think, in ascertaining the intent of the parties and the rights acquired must bé read together. The first instrument was a deed conveying the property to- Thomas B. Hidden, executed by ■ both husband and wife. The second instrument was a deed from Thomas B. Hidden, party of the first part, William H. Webb, Henrietta A. Webb (his wife) and Webb’s Academy and Home for Shipbuilders, parties of the second part. By this deed the property was conveyed to William H. Webb during his natural life, and upon and after his death unto Henrietta A. Webb, her heirs and assigns forever, if she. then be living, and if the said Henrietta A. Webb should not survive the said William H. Webb, then upon and after the death of William H. Webb unto the said Webb’s Academy and Home for Shipbuilders, its successors and assigns forever. These two instruments were executed, delivered and recorded, and thereby William H. Webb acquired an estate for life in the property, with a vested remainder to Mrs. Webb in fee, with a contingent remainder over to the plaintiff in the event that Mrs. Webb did not survive her husband. The parties had also agreed as *720between themselves what disposition Mrs. Webb should make of the property in case she survived her husband and acquired the fee, and that was evidenced by the third instrument in which Henrietta A. Webb (wife of William H. Webb) was party of the first part and William H. Webb was. the party of the second part. By the instrument the party of the first part (Mrs. Webb) agreed to execute a conveyance or will so as to vest the plaintiff with the remainder in the property after her ' death, and she further covenanted and. agreed that this covenant and agreement “ is made to. and with and .shall enure to the benefit of the said Webb’s Academy and Home for Shipbuilders, its successors and assigns, as well as to and with the party of the second part, his heirs, executors, and administrators, and that the said Webb’s Academy and Home for Shipbuilders, its successors and assigns, shall' be entitled to enforce the -same against the party of the first part, her heirs, executors, administrators and • assigns as well in equity as at law and by suit for specific performance as well as by action for damages, and that in case the party of the'first part shall fail in her lifetime, either by conveyance or by last will' and testament to vest in said Webb’s Academy and Home for Shipbuilders, the fee simple of said premises to take effect upon and after her death, then the said Webb’s Academy and Home for Shipbuilders shall nevertheless be entitled to the _ ownership and possession of said premises and to all remedies against and releases, conveyances, and acquittances by the heirs, executors, administrators and assigns of the party of the first part, which shall be requisite and proper to' vest in and to itself and its successors the title to said premises in fee simple.” This instrument was executed and acknowledged and was in possession of William H. Webb until he delivered it to his counsel at or about the time .of its revocation as hereinafter stated.
Taking this transaction as a whole, and these several instruments designed to carry out the agreement between William IT. Webb and his wife as to the disposition of his property together, I think if there had been a delivery of this agreement, or if there had been any consideration proceeding from the plaintiff, the court would have implied a trust under which Mrs. Webb held the property in trust for the plaintiff, but William H. Webb and his wife, the parties to the agreement and the- parties to the instrument evidencing *721it, retained possession of it and it was never delivered to the plaintiff.
It will be noticed that all through this instrument there is no word of present gift or transfer, and I can find no intention to vest any present interest in the plaintiff either in possession or remainder in the property in question. Mrs. Webb makes no declaration that she will stand seized of the property for the benefit of the plaintiff, or hold the property for its benefit, and clearly the. covenants in the instrument between Mr. Webb and his wife could not be enforced by the -plaintiff, there being no consideration passing from the plaintiff and the plaintiff not being a party to the instrument. There was plainly an agreement between those owning the property and having an absolute right to it, by which they agreed as between themselves that there should be a gift of the property to the plaintiff after Mrs. Webb’s death. The plaintiff, however, acquired no present interest in the property and no present right to enforce the agreement. I suppose it could hardly be claimed that if the plaintiff had acquired knowledge of the execution of this instrument by Mr. and Mrs. Webb during Mr. Webb’s lifetime, and had filed a bill to compel Mrs. Webb to execute a declaration of trust in its favor, such an action could have been maintained ; and yet, as I view it, to sustain this judgment the plaintiff must have acquired a present interest in 'or title to the property which inured to it upon the execution of the instrument. Whatever title or interest the plaintiff acquired in or .to the property must have been acquired upon the execution of the instrument. This instrument remained in the possession of Mr. Webb until the month of. October, 1899, when he gave it to his counsel, who has retained it from that time to the present. On October 8, 1899, Mr. and Mrs. Webb executed an agreement reciting these conveyances, and also reciting that in pursuance to the agreements and arrangements under which they were executed, Mrs. Webb had entered into'an agreement with Mr. Webb, dated the 26th day of September, 1889, whereby she agreed that she would vest in the plaintiff the fee simple of the premises, subject to an estate in her for life; and “ whereas, for various reasons, - the parties hereto have become dissatisfied with' the said agreement and the disposition thereby agreed to be made of said premises, and *722are .desirous of canceling said agreement and making a new disposition of said premises, and the party of the first part (Mrs. Webb) lias agreed, in consideration that she shall be released 'from said agreement and all obligation and liability'thereunder, that she will enter into .a new agreement pursuant to the original understanding and arrangement upon which said premises were conveyed to her, and providing that in case she shall survive the party of the second part (Mr. Webb) and the title to said premises shall become vested in her, she. will forthwith devise or convey the said premises in fee to William E. Webb, the son of the parties héreto subject to an estate in her for lifeand it is then agreed that the parties cancel and annul the said agreement, bearing date the 26th day of September, 1889, “ and all covenants and agreements and provisions therein contained and all obligations and liability thereunder or arising therefrom;” and that Mrs. Webb agreed to convey the premises to her son in pursuance of the agreement entered into between them. Whatever part of the agreement of September 26, 1889, was executory was, therefore, canceled and released by this new indenture of the 3d of October, 1899, and whatever Mr. Webb* who had been the owner of the property, and with whom the covenant as to the conveyance to the plaintiff was made, could do to release Mrs. Webb from any obligation that she assumed under the contract was done. Consequently, unless the plaintiff had acquired some interest in the property that a court of equity would enforce, there was nothing left of the agreement, which was euforcible.
. An essential part of the due execution of an instrument granting or conveying.an interest in land is delivery, and such an instrument never takes effect unfjl delivery, and treating all these instruments as One instrument by which Mr. Webb intended to convey his land so that he would be entitled to retain a life estate, with remainder to. his wife, and remainder over to the plaintiff, liis retention of the instrument was not a delivery which would vest the plaintiff with any interest in the land; and, as I view it, the agreement being without consideration, so far as the plaintiff was concerned, it could vest no present title in the plaintiff until a delivery. There being no declaration of trust, or words that Would act as a -present limitation of Mrs. Webb’s estate in remainder which had vested in her' by the execution of the deed from Hidden to her, I cannot see that *723there was any estate in the land to which the plaintiff was entitled, or any contract or declaration of trust which a court of equity could enforce. The agreement that the plaintiff seeks to enforce was a voluntary agreement by which the plaintiff ivas to be entitled to this land upon the death of Mrs. Webb. The agreement never was delivered to the plaintiff, or any one for its benefit. There was no consideration. Ho title or interest, either as grantee or as cestui que trust, ever vested in the plaintiff, and the parties to the agreement, before it had ever become an executed agreement, so far as the plaintiff was concerned, revoked and canceled it and made other disposition of the property.
It seems to me to follow that there could be no enforcement of this agreement in. equity, and that the defendants were entitled to judgment.
Judgment reversed, new trial ordered before another referee, costs to appellants to abide event. Settle order on notice.