dissenting:
We do not regard the facts of this case as sufficient to justify defeating the intention of John Noble, nor the reasoning of the foregoing opinion as justifying the conclusion reached. In a great many cases this court has held that if a deed is not delivered to the grantee in the lifetime of the grantor but is intended to take effect only upon the death of the grantor it is testamentary in character and invalid as a deed. For the purpose of showing the intention of the grantor parol evidence is admissible, and if by such evidence, it is shown that the deed was not intended to operate presently but only upon the grantor’s death, it is uniformly declared to be a testamentary disposition of the property and not ‘ operative unless executed in conformity with the Statute of Wills. Oswald v. Caldwell, 225 Ill. 224, and cases there cited.
The evidence shows that the instrument in question in this case was deposited with the will of John Noble, in the same envelope, in a bank, and the endorsement made upon the envelope by his direction manifested his intention that the instrument was not to be effective and not to be delivered until his death. In the suit for the purpose of setting aside the instrument as a deed it was claimed to be a testamentary disposition of the property and invalid as a deed for want of delivery. It was competent in that suit to prove the intention of John Noble for the purpose of showing that the intended disposition of the farm was testamentary in character and ambulatory until his death, and we do not see how it can be now held that the same evidence is not admissible or competent to prove the same fact. We do not see how it can consistently be said that the instrument amounts to a testamentary disposition of the property described in it and yet that it is not a testament, although it was executed with all the formalities required in the case of a will. If the effect of the evidence by which the instrument was invalidated as a deed had been to vary or contradict the plainly expressed terms of the instrument it would have been incompetent. But that was not the effect in the other suit nor in this one. The delivery of a deed is an essential part of its complete execution, but it is not shown on the face of a deed or by its terms. The delivery or non-delivery of a deed is almost wholly a matter of intention. A delivery may be by acts without words or’ words without acts, the only requirement being that the evidence shall show an intention of the grantor that the deed shall become operative and effectual, (Gunnell v. Cockerill, 79 Ill. 79,) and the acceptance of a deed for the benefit of the grantee, such as this one, will be presumed. Haenni v. Bleisch, 146 Ill. 262.
Proof of delivery or non-delivery of an instrument does not in any manner add to its terms, and if it is admissible to show an intention that the instrument shall only become operative upon the death of the grantor, and is therefore of a testamentary character, we see no logical ground upon which it can be said that it is not competent to establish the instrument as a will, provided it is executed in conformity with the Statute of "Wills. The fact that no instrument in the form of a deed has ever been held by this court to be a will is of no more consequence than the fact that no instrument in the form of a deed has ever been declared by this court not to be a will. No weight is to be given to either.
The four requirements of the Statute of Wills which' are mentioned in the foregoing opinion and which entitle an instrument to probate as a will were all fully complied with in this case, and the evidence shows that the deed was deposited with the will, to be delivered after the death of the maker and to take effect at that time. References to the instrument as a deed of bargain and sale, and the conclusion that it would be an unsafe rule to hold that such a deed which by chance happened to be attested by two witnesses could be converted into a will by parol evidence, are inappropriate in this case. The instrument is not a deed of bargain and sale and expresses no valuable consideration whatever. The form of a statutory conveyance was used in part, but it did not follow that form by expressing a consideration paid, and the only' consideration expressed or in fact existing was “natural love and affection” for the son. The uncontradicted evidence is that John Noble was advised by his attorney that a delivery would be essential to make the instrument effective as a deed but that he could máke a deed, and if it was properly witnessed and failed as a deed it might be good as a testamentary disposition of the farm and would operate as a will. The witnessing was not by chance or accident, but was at the request of the maker of the instrument.
There was further evidence which, in our opinion, was entirely competent and sufficient to meet all the requirements of the law and fix the character of the instrument as a will. In disposing of his property by the instrument which is in form a will the testator referred to the property described in the deéd as being a part of his estate at his death and declared his intention that it should go to Thomas Noble by virtue of this instrument. After disposing of other property, not including the home farm described in the deed, he devised the remainder, expressly excepting from the operation of the residuary clause the home farm, containing 503 J4 acres, with the statement that it had been deeded to his son Thomas Noble. He was not only presumed to know the law regarding the necessity of a delivery to make the instrument operative as a deed, but was also advised by his attorney as to the law, and the will shows that he regarded the home farm as a part of his estate, which would pass by the-residuary clause unless excepted therefrom. The two instruments were deposited together, and as the will referred to the deed, they are to be construed together. When so construed there can be no doubt, as we think, that the instrument was intended to operate as a will. Not only is the plain intention of John Noble defeated by the decision in this case, but the absurd result is reached that in making his will he designed to die intestate as to the home farm, and that it is, in fact, intestate property. As we understand it, such an intention and such a consequence will always be avoided where it is possible, and we see no good reason either for defeating the intention of the maker of the instrument or holding the property to be intestate estate.