(concurring) :
1 concur in the conclusion reached by my brother Hooker. The question to be .determined is whether the devise to James Baynes was revoked by the subsequent contract to convey the property ■ devised and by the delivery of .the deed in escrow. "The effect off the agreement to convey Was to convert the testatrix’s property from- real estate to personalty. (Williams v. Haddock, 145 N. Y. 144.) At common law either the agreement to convey or the delivery of the deed in escrow w'.ould have revoked the specific devise," (Walton v. Walton, 7 Johns. Ch. 258 ; Adams v. Winne, 7 Paige, 97 ; Beck v. McGillis, 9 Barb. 35 ; Brown v. Brown, 16 id. 569; McNaughton v. McNaughton, 34 N. Y. 201; Gray v. Gray, 5 App. Div. 132.) The question is, has the statute (2 R. Si 64, 65, §§ 45-48) changed the common-law rule ? The contract to sell did not revoke the will (2 R. S. 64, § 45 ; Knight v. Weatherwax, 7 Paige; 182 ; Wagstaff v. Marcy, 25 Misc. Rep. 121), nor did the delivery of the deed in escrow (2 R. S. 65, §§-47, 48). "Where a deed is delivered as an escrow nothing passes by the deed unless’ and until.the condition of its delivery is performed. ( Wheelwright v. Wheelwright,. 2 Mass. 447; Jackson v. Catlin, 2 Johns, 248 ; Catlin v. Jackson, 8 id. 520; Frost v. Beekman, 1 Johns. Ch. 288 ; Beekman v. Frost, 18 Johns. 544; Jackson v. Rowland, 6 Wend. 666 ; Green v. Putnam, 1 Barb. 500 ; Cagger v. Lansing, 43 N. Y. 550; County of Calhoun v. American Emigrant Co., 93 U. S. 124.) It is only where the estate or interest in the property ■ specifically devised is wholly divested that the devise is revoked. (2 R. S. 65, § 47; Vandemark v. Vandemark, 26 Barb. 416; Matter of Dowd, 58 How. Pr. 107; Langdon v. Astor’s Execu- tors, 16 N. Y. 9, 39.) - The fact that by fiction of law the second delivery off the deed takes effect from the time of the first, in cafe of the death .of the grantor intermediate the two, :in nowise alters the fact that it had not. taken effect when the testatrix died and the *513will speaks from that event. Therefore, said sections 45 and 47 save the contract to sell and the escrow respectively from operating . to revoke- the specific devise, and the devisee takes the proceeds substituted for the property devised. ;
■ Jenks, J., concurred.
' Judgment for the defendant Baynes on submission of controversy, with costs. "