
    No. 584
    BURGY et v. DANE et
    No. 19880.
    Supreme Court
    On motion to certify.
    Dock. June 9, 1926.
    1271. WILLS — Where a deed has been placed in escrow to be delivered at the time of the grantor’s death pursuant to an agreement between a deceased and his house-keeper and later before the testator’s death the agreement is revoked by consent and the testator’s will refers to the deed and accepts the property described in the deed from passing to the heirs, may the heirs maintain an action in ejectment against the grantee named in the deed?
    Attorneys — Walker &Kelvey, St. Clairsville, for Pltfs.; Thornburg & Lewis, St. Clairsville, for Defts.
   This action was brought originally in the Belmont Common Pleas by Ross Dane, Lois Masters, and Gladys Fulton, heirs of John Dane against Cora Burgy to eject Burgy from said property.

■ It appears that John Dane in accordance with an agreement had delivered a deed in escrow conveying certain real property to Burgy his housekeeper to compensate hex for her services. Subsequently John Dane executed a will in which he bequeathed to his children, defendants in error, all his property both real and personal. The property described in the deed was accepted in the will and reference was made to the deed which has been placed in escrow.

The evidence disclosed that before the testator’s death that he and Burgy agreed that the deed should be destroyed and that she snould be paid money for her services.

The Common Pleas rendered judgment in favor of the heirs, which judgment was affirmed by the Appeals. Burgy in the Supreme Court contends:

1. That parole evidence is not admissible to show the failure of delivery of the deed.

2. That the deed was so incorporated in the will as to cause the title to pass to Burgy.

3. That the heirs are not permitted by statute to maintain an action in ejectment.

4. That it is a question for the jury to decide and not the court of whether or not there was a delivery of the deed.  