The only question in this case relates to the
effect and operation of the deed from Robert Thomson, ¡an., to his two sons, Robert and Kelson. This deed was duly executed by the grantor, in his lifetime, and delivered to a third person, to be delivered to the grantees, in case the grantor should die before having made and execute his will. The grantor did die without having made any will, and the deed was, after his death, delivered to the grantees. If this deed is to be considered as an escrow, the estate, under the circumstances stated in the case, passed to the grantees, upon the delivery after the death of the grantor. It is a well-settled rule with respect to an escrow, that if either of the parties die before the condition is performed,, and, afterwards, the condition is performed, the deed is good, and will take effect from the first delivery. (Shep. Touch. 59.) It may, however, be questionable whether this deed is to be viewed as an escrow ; the grantees had nothing to do, on their part, in order to make the deed absolute, which is usually the case where a deed is delivered as an escroto. The delivery here was, at all events, conditional, and to become absolute upon an event which has taken place ; and, as in the case of an escrow, the deed will take effect from the first delivery. This principle is very fully laid down and illustrated in the cases of Wheelwright v. Wheelwright, and Hatch v. Hatch, (2 Mass. Rep. 447., and 9 Mass. Rep. 307.) The grantees in this deed are, therefore, entitled to a moiety of the premises, and partition must be made accordingly.