Whether, when a deed is executed, and not immediately delivered to the grantee, but handed to a stranger, to be delivered to the grantee at a future time, it is to be considered as the deed of the grantor presently, or as an escrow, is often matter of some doubt; and it will generally depend rathe" on the words used and the purposes expressed, than upon the name which the parties give to the instrument. Where the *415future delivery is to depend upon the payment of money, or the performance of some other condition, it will be deemed an escrow. Where it is merely to await the lapse of time, or the happening of some contingency, and not the performance of any condition, it will be deemed the grantor’s deed presently. Still it will not take effect as a deed, until the second delivery ; but when thus delivered, it will take effect, by relation, from the first delivery. But this distinction is not now very material, because where the deed is delivered as an escro.w, and afterwards, and before the second delivery, the grantor becomes incapable of making a deed, the deed shall be considered as taking effect from the first delivery, in order to accomplish the intent of the grant- or, which would otherwise be defeated by the intervening incapacity. Wheelwright v. Wheelwright, 2 Mass. 454. The cases there cited fully justify this position ; and the principle is recognized in Hatch v. Hatch, 9 Mass. 310.
This principle governs the present case. ■ Mansfield, the grantor, being seized of the land, executed and acknowledged a deed, and delivered it to Dr. Shed, with a request that he would deliver it to the grantee, after his, the grantor’s, decease ; which he did. Then, by relation, the deed took effect, as at the time of the first delivery, and devested the estate of the grantor, as from that time.
It is immaterial to inquire, what would have been the effect, if the grantor had recovered from his sickness and taken back the deed. As the estate did not effectually pass till the second delivery, if that second delivery had been prevented, it would probably have been held that it'was wholly inoperative. Nor is it material to inquire whether such deed would have been valid against creditors. Had the deed been executed in the most formal manner, and delivered to the son himself, in presence of witnesses, if made without valuable consideration, it could not avail against creditors.
Judgment on the verdict for the respondent,