(concurring specially). This case comes here for trial do novo. Hence, the members of this court are required to weigh the evidence and determine what judgment should be rendered upon the facts established by the evidence, and the rules of law properly applicable. Both parties seem to concede, and the opinion of a majority of this court is predicated upon the theory, that the pivotal question in this case is whether the deed in controversy was delivered to the plaintiff by his father, Andrew Anderson. Of course, there is, and can be, no question but that the deed was in fact executed. The undisputed evidence shows that it was; and the deed itself was recorded in the office-of the register of deeds of Griggs county, and the plaintiff produced it upon the trial of this action. There is no secret as to the circumstances surrounding the execution of the deed. Andrew Anderson owned a half section of land upon which there was an existing mortgage in the sum of $3,000. He decided that he would go to the western part of this state and enter land under the Federal homestead laws. Under such laws he could not make a homestead entry if he owned more than 160 acres of land. And so he decided to convey one quarter to his eldest son,, the plaintiff in this action. Thereupon, Andrew Anderson and the plaintiff went to the office of Tufte, an attorney at Cooperstown, and Andrew Anderson directed Tufte to prepare a deed conveying the land in controversy to the plaintiff. It appears that Tufte was not a notary public, and, therefore, they went to one Udgard, a notary public (who* also was cashier in a bank), in the same city, and Andrew Anderson acknowledged the execution of the deed before Udgard. To both Tufte and Udgard, Andrew Anderson stated specifically the reasons why he desired to convey the land to his son. Udgard testified: “He [Andrew Anderson] said he made this deed for his convenience for the pur*643poso of enabling Mm to take a homestead. He was going to the western part of the state to take a homestead, and if he did not, why I understood that he annulled it.” Tufte testified: “My impression is that the old man told me that he was going to deed that land to his son. I think he said he was going to file on some land.” The plaintiff testified, without objection, that his father delivered the deed to him shortly after its execution. Apparently, Andrew Anderson decided to abandon his homestead, for the evidence is undisputed that he never went near the land after he made his entry; and under the law he was, of course, required to take up his residence thereon within six months after making entry. If the deed had never been delivered and was in the possession of Andrew Anderson, why did he continue to preserve the deed ? Why did he keep and guard it for more than eight years after he had decided to abandon his homestead entry ? From his standpoint the deed was of no use, and should have been destroyed. Not so with the plaintiff, however. It is true he was probably in doubt as to what, if any, rights he had by virtue thereof. But nevertheless it appears, both from the testimony of Udgard and Mrs. Scramstad, that plaintiff did believe the deed would be of some value to him in case trouble arose among the heirs. Hence, there was some reason for plaintiff’s preserving the deed which his father had given to him; but there was absolutely no reason why the father should have preserved this deed throughout the years, if he had it in his possession. The contention of the defendant that the plaintiff took the deed from a drawer in a certain bureau where the father kept it is based upon the testimony of Mrs. Scramstad that the plaintiff took it from such drawer in September, 1916; but that occurrence was more than three months after the father had died, and in the meantime the plaintiff had been, and was then, making that place his home. Is there any reason why the son, after the father’s death, might not have decided to put his valuable papers in the same bureau drawer where the father, while alive, used to keep his ?
But the evidence shows clearly that the plaintiff had the deed in his possession before the father died. Udgard testified that the plaintiff exhibited the deed to him several weeks before the father’s death; and Larson, one of plaintiff’s attorneys, testified that plaintiff exhibited the deed to him before the father’s death. Hence, the case of the plaintiff does not rest alone upon his testimony to the effect that the father de*644livered the deed to him, and upon the presumption arising from his possession thereof at the time it was offered for record, and subsequent thereto.
Plaintiff’s possession of the deed raised a strong presumption that it was delivered to him at the time it was executed. Comp. Laws 1913, § 5496. It is also presumed that a person is innocent of crime or wrong; that private transactions have been fair and regular; and that the law has been followed. Comp. Laws 1913, subds. 1, 19 and 33, § 7936.
These presumptions are all in harmony with the theory that the deed was delivered to the plaintiff. Por if the deed was not delivered then Andrew Anderson did not carry out his intentions as expressed when he executed the deed; he went out to the Dickinson land office, and committed a crime in stating under oafh, as part of his application to make homestead entry, that he did not own more than 160 acres of land; the plaintiff committed larceny in obtaining possession of the deed; and the father, Andrew Anderson, after having abandoned all idea of delivering the deed to his son, nevertheless kept the deed for nine long years. It seems to me that when the evidence is construed in the light of applicable presumptions, it shows that the deed was delivered to the plaintiff at or about its date.
But while I am of the opinion that the evidence shows a delivery of the deed to the plaintiff, I am inclined to the view that he is precluded from claiming under it. The evidence shows that the father, during his lifetime, exercised full dominion over the premises in controversy, and in every respect treated them as his own. He mortgaged them (together with an adjoining quarter) for $4,300. He sold and conveyed part of them. About three months before his death he leased the premises for three years to his two youngest sons, and the plaintiff signed as one of the subscribing witnesses to the lease. The plaintiff procured the scrivener who prepared the will; and after execution it was delivered to the plaintiff. About ten days after the father’s death the plaintiff took the will to the county judge’s office, and instituted proceedings to have the will admitted to probate. The plaintiff signed and verified the petition for probate of the will. In such petition it was averred that the estate of said decedent consisted of one half section of land in Eomness township, in Griggs county, which did not exceed in value the sum of $12,000; of goods, chattels, and personal property of the value *645of about $3,000; aud that the probable amount of debts due and unpaid left by the deceased was $4,400. The inventory and appraisement in the probate proceedings shows that the land was appraised at $10,000, and is encumbered in the sum of $4,300; and that all the personal property of the deceased was of the value of $3,532.63.
In the will a bequest of $500 was made to each of four children, including the plaintiff. The will further provided that all the remainder of the estate should be divided equally among all of testator’s six children. The plaintiff admitted that he had received and accepted the $500'bequeathed him in the will. It seems clear that the decedent at the time he made and published his last will and testament was under the impression that the quarter in controversy was his property, and was being disposed of by, and would be distributed in accordance with the terms of, the will. In fact this is virtually conceded by plaintiff’s counsel, for in their brief in this court they say: “It may well be conceded, and in fact we are satisfied, that the fact is that after Anderson, Sr., concluded to abandon his homestead entry, there was a tacit understanding on the part of both him and Henry that the latter would not make any claim under the deed, or it may have been that both believed that the deed was no longer of any effect when the old man abandoned his homestead entry.” The testimony of the scrivener also shows that at the time the will was drawn in March, 1916, the testator, in discussing its terms, referred to the land in question as his property and as property disposed of by the will. The plaintiff seems to have put the same construction on the will when he petitioned to have it admitted to probate. In these circumstances, it seems to me that the plaintiff is precluded from claiming that he is the owner of the land in controversy. For it is a well-settled rule in equity that a person will not be permitted to hold both under and against a will. Herbert v. Wren, 7 Cranch, 374, 378, 3 L. ed. 374, 377. In other words, he may not (with a full knowledge of the situation) take any beneficial interest under a will, and at the same time set up any right or claim of his own, de hors the will and adverse to it,—even though such claim otherwise is legal and well founded,—which defeats, or in any way prevents the full effect and operation of every part of the will. Bigelow, Estoppel, 6th ed. pp. 733, 734; Jarman, Wills, 6th ed. pp. 532 et seq.; Story, Eq. Jur. 14th ed. § 1454; Pom. Eq. Jur. 3d ed. §§ 462 et seq.; 40 Cyc. 1959 et seq.; *646Hyde v. Baldwin, 17 Pick. 303, 308; Pry v. Morrison, 159 Ill. 244, 42 N. E. 774; Drake v. Wild, 70 Vt. 52, 39 Atl. 248; Utermehle v. Norment, 197 U. S. 40, 49 L. ed. 655, 25 Sup. Ct. Rep. 291, 3 Ann. Cas. 520.
Birdzell, J., concurs.