I dissent from this opinion. Whether the instrument in question was delivered, is a matter of Epley’s intent. Epley told Cramer that if Cramer would take care of him during his life, Cramer should have the mine upon Epley’s death. Later Epley said to Cramer, “I have the papers made out, and would like to deposit them in your *117box.” Upon placing them in the box, Epley said: “This contains what I am going to give you after I am dead” It seems to me immaterial whether “what I am going to give you” refers to the papers or to the mine. In a writing left by Epley with the papers he says: “I have made two deeds . . . for delivery to said John J. Cramer immediately upon my death.” The other facts appearing in evidence, very carefully and correctly set forth in the opinion, do not serve to overcome the impression I received from these statements of Epley, that he did not intend an immediate conveyance of the mine; that he did not intend an immediate delivery, conditional or otherwise, of the instrument in question. He seems to have acted upon the assumption which has cruelly defeated many benevolent plans, that he could accomplish a disposition of his property after his death without the interposition of the probate court. In this view, the instrument, being undelivered, cannot take effect as a conveyance.