
    Miranda P. Stanton and others vs. George W. Miller and others.
    A" decision, on the trial of a question of fact by the court, which does not authorize a final judgment, but directs further proceedings before a referee, or otherwise, is precisely the decision described in section 268 of the Code, as amended in 1861, authorizing a party to move for a new trial, upon a case, or exceptions.
    An action in equity was brought to compel the delivery to the plaintiffs of a deed which had been executed and acknowledged by M., in her lifetime, and deposited with B. as an escrow, subject to the performance of a contract made between M. and one of the plaintiffs, for the support of M. during her life, and after her death such deed was to be delivered to the grantees. The action was tried before a justice of this court, who made and filed his decision containing his finding of facts, and conclusions of law. But, instead of rendering or ordering any final judgment, in the case, such justice, having arrived at the conclusion that the plaintiffs were not entitled to the relief sought, but were entitled to receive compensation in damages for the breach of the contract, ordered that the plaintiffs have leave to move to have the legal representatives of M. made parties, and for a reference, or an issue, to ascertain the amount of damages; and that in the meantime the cause stand over, and that all other questions, including that of costs, be reserved. Held that this was a case where the plaintiffs were entitled to move for a new trial, under section 268 of the Code.
    The specific performance of an agreement for the conveyance of land, in consideration of support and maintenance during life, may be compelled, in equity.
    To compel, the delivery of deeds and other instruments in favor of persons legally entitled to them is an old head of equity jurisdiction, is a most important branch of that jurisdiction, and is exerted in all suitable eases, in favor of persons entitled to the possession of deeds or other instruments.
    And a case where a deed has been delivered in escrow, upon a condition which has been fulfilled, would seem to be one which especially justifies and calls for the exercise of this jurisdiction; since the withholding of the deed interferes with, and probably prevents, the vesting of the legal title. Per Talcott, J.
    An escrow, signed, sealed and deposited upon a valuable consideration, is not revokable by the depositor, except according to the terms of the agreement and deposit.
    The depositary of an escrow, under such circumstances, is as much the agent of the grantee as of the grantor; and he is as much bound to deliver the deed, on performance of the condition, as he is to withhold it until performance.
    Although it may be doubtful whether the deed can take effect without actual delivery, yet when it is delivered, the' delivery relates back to the time of the deposit.
    
      Where the contingency upon which a deed in escrow was to be delivered, viz., the death of the grantor, had happened, and the grantees had fully performed the contract, on their part; held that the arrangement created an equitable interest in the property conveyed, which ripened into an absolute equitable (if not legal) title, on the death of the grantor; and that the grantees were entitled to a delivery, and the custody, of the deed, and to have the same recorded.
    MOTION by the plaintiffs for a new trial, under section 268 of the Code of Procedure.
    
      G. id DanfortJi, for the plaintiffs.
    I. The case is within the provisions of section 268 of the Code. The decision does not authorize final judgment, but does direct further proceedings for ascertaining damages.
    II. The plaintiffs are entitled to a delivery of the deed, to the grantees therein. 1. The learned justice at Special Term misconceives the action. He treats it as if it was an action for specific performance of the agreement merely. On the contrary it is brought to compel a delivery of the deed, and may be maintained for that purpose, within well recognized rules of equitable jurisdiction. The contract is material only as containing the condition upon which the escrow was to be delivered to the grantee. 2. The object to be secured as expressed in the contract, is the performance of its terms by Mr. Stanton. And Mrs. Miller, in delivering the deed to Mr. Benedict, accompanied it with her certificate, that it was subject to the performance of the contract made by Mr. Stanton, adding, the “said deed is delivered to O. M. Benedict, in escrow, for the use of the grantees at my decease.” The court finds that Stanton performed the agreement on his part. Mrs. Miller having died, the plaintiffs are, therefore, entitled to the absolute manual custody of the deed, (a.) Benedict thus became the depositary selected by both parties. The moment the condition was performed, the deed took effect, without any formal delivering into the hands of the grantees. The estate or title vested. (5.) The condition having been performed, and Mrs. Miller having-died, Benedict was as much bound to deliver the deed to the grantees as he was bound to withhold it, until performance and her death. (3 Washb. on Real Prop. 292. Belden v. Carter, 4 Day, 66. Beekman v. Frost, 18 John. 544. Shep. Touch. 56, 57. Co. Litt. 36, a 3.) Kent, Ch. J., in Jackson v. Catlin, (2 John. 258,) says: “A deed is delivered as an escrow when it is delivered to a third person to keep until something be done by the grantee, and it is of no force until the condition be fulfilled.” It must follow, that when fulfilled, the delivery becomes absolute for the use of the grantee, and the grantee entitled to the deed. Benedict became a trustee for the grantees. The instrument was delivered as the deed of Mrs. Miller, for the use of the grantees, upon her death; not as an escrow, but as a deed, to be held until condition performed. (Hatch v. Hatch, 9 Mass. 309.) The deed remained, during the life of Mrs. Miller, in the hands of Mr. Benedict, subject, that is, as security for the performance by Mr. Stanton of his agreement, but to be delivered to the grantees, upon the death of Mrs. Miller. This agreement could not be revoked by the grantees alone, and it was the duty of Benedict, upon the death of Mrs. Miller, to deliver the deed to the grantees as a good and valid conveyance of the lands therein contained.
    III. But if the action is regarded as one for the specific performance of the agreement, the plaintiffs are entitled to a decree in théir favor. 1. The contract is fair upon its face. 2. The attendance of the plaintiffs, Oliver Stanton and wife, was solicited by Mrs. Miller, after consultation with her counsel, Judge Humphrey. 3. The agreement -in question, the deed and will, were drawn by O. M. Benedict, Mrs. Miller’s counsel, without the presence or dictation, or suggestion of the plaintiffs, or either of them. 4. The plaintiffs performed their part of the agreement. 5. There is no pretence of fraud or imposition, or undue, or even any, influence exercised over Mrs. Miller. Under these circumstances, the plaintiffs are entitled to a performance of the contract. (Seymour v. Delancy, 3 Cowen, 445.) This case is followed and cited by the court in Parmelee v. Cameron, (41 N. Y. 392, 396; Lobdell v. Lobdell, (36 id. 327.) See also, Barnes v. Barnes, (65 N. C. 26, 261-44.)
    IY. The plaintiffs cannot have adequate relief at law. 1. Contracts will not be permitted to be broken, when there is not a plain, adequate and complete remedy at law. (2 Story's Eq. Jur. §224.) 2. When the damages cannot be known or estimated with any exactness, either because the effect will show itself only after along time, or for any other reason. (Pars, on Cont. 364-373. 2 Story’ s Eq. Jur. § 718.) In cases coming within these rules, it would be inequitable and unjust to permit fair, honest contracts to be avoided, (3 Pars, on Cont. 350; March v. Blackman, 50 Barb. 329,) referring to and adopting these rules. 3. In this case the damages cannot be estimated with any exactness. The plaintiffs were induced to break up the ties and engagements by which they were bound in their place of residence; to abandon them allegiance to their' own country, and to become residents of the country of Mrs. Miller; to take upon themselves her cafe and support so long as she might live, and be subject to her caprices and whims, and be bound to her necessities. They gave up the house they had, upon the promise of another, and have fulfilled, literally, their undertaking with Mrs. Miller. Their compensation and damages can be measured only by their agreement, and not by the uncertain discretion of a jury. In Rhodes v. Rhodes, (3 Sandf. Ch. 279,) a case not unlike the present, save that the agreement for support was by paroi, the court decreed specific performance. (See also, Parsell v Stryker, 41 N. Y. 480; Stephens v. Reynolds, 6 id. 458.)
    
      Y. The direction to Mr. Benedict to destroy the will and the deed, are unimportant. If Mrs. Miller understood that she could violate the contract and pay damages, it would not affect the plaintiffs. They were not a party to any such arrangements, nor privy to such understanding. The deed was- expressly delivered to Mr. Benedict to be delivered to the plaintiffs upon the death of Mrs. Miller; it was to await, and required no action on the part of Mrs. Miller; but he held it only as security for the performance of the agreement of the plaintiffs. (42 N. Y. 367.) This was performed, and they thereby became entitled to the deed, absolutely, upon the death of Mrs. Miller.
    YI. The question of mutuality does not arise. 1. The contract contained in itself security for the performance to the letter and spirit of its terms by the plaintiffs. He also gave a surety. 2. The plaintiff did perform, and was ready and willing to continue so doing. 3. It does not lie in the defendant’s mouth to make the objection, for it is obvious that he was the cause of the violating of the contract by Mrs. Miller; ñor has he set it up in his answer; but if he had, it would avail nothing. (a.) The contract is mutual. (b.) Yet if it is not, it would constitute no defence to the action. (In re Jane Hunter, 1 Edw. Ch. 1. White v. Schuyler, 1 Abb., N. S., 300. Woodward v. Harris, 3 Sandf. 272. Grant v. Johnson, 5 N. Y. 247. Justice v. Lang, 42 id. 493, 524.) The defendant Benedict, is as much bound to deliver the deed on performance of the condition, as he was to withhold it until performance. (Shireley v. Ayres, 14 Ohio, 308. 3 Washb. on Real Prop. 272.) The moment the condition is performed, the deed takes effect without any formal delivery into the hands of the grantee. When the condition is performed, the estate or title vests. (Millership v. Brookes, 5 H. & N. 796.)
    YII. Upon the facts found, the court should render judgment for the plaintiffs, according to the prayer of the complaint. 1. The condition for which the deed was held by Benedict has been performed. 2. The agreement was founded upon a valuable consideration; is valid in law.
    
      W. F. Cogswell, for the defendant.
    I. The transaction between the plaintiffs and Mrs. Miller was a gift, and not a contract founded upon a consideration. It was so understood by all the parties.
    II. A court of equity will never lend its aid to carry into effect, or decree the specific performance of, an incomplete gift. (Callaghan v. Callaghan, 8 Cl. & Fin. 374.)
    III. Assuming that this transaction was to be treated as a contract, a court of equity will not decree the specific performance thereof, by reason of the gross inadequacy of the consideration, coupled with the condition of mind of Mrs. Miller at the time of making the same, and the facility with which she might be made the subject of imposition.
    TV. Treating the transaction still as a contract, the court will refuse to carry the same into effect, or enforce the performance thereof, on account of its hard and unconscionable nature. (Fry on Spec. Perf. 181, 2 Am. ed.; p. 116 of the 1st ed. and cases there collected.) A party who comes into court to enforce the specific performance of a contract, must furnish a very different case from an agreement to convey real estate of the admitted value of at least $10,000 for the consideration of an agreement to take care of and provide for an aged lady in the last stages of consumption, whose life could not, in the nature of things, extend beyond a few weeks.
    Y. The deed was never delivered. The right to change the arrangement which was made by these papers was retained to the end. A deed deposited under such circumstances is not delivered. It was a merely testamentary act. (Jacobs v. Alexander, 19 Barb. 243. Brackett 
      v. Barney, 28 N. Y. 333, 340. Ford v. James, 4 Keyes, 300. Stilwell v. Hubbard, 20 Wend. 44.)
    VI. The court will not decree a specific performance of this agreement on behalf of the plaintiff, for want of mutuality.
    VII. The plaintiffs in this suit, other than Oliver Stanton, have no standing in court whatever. They are not parties to the original agreement, and the deed has never been delivered.
    '* VIII. The plaintiff Oliver Stanton is not a party to the deed. His right, if any, depends solely on the agreement. That the court will not enforce such an agreement, I have endeavored to show.
    This agreement is of so uncertain and indefinite a character that there can be no specific' performance-thereof adjudged. The performance of the same rested in the volition of Mrs. Miller.
   By the Court, Talcott, J.

It is claimed by the defendant that the plaintiffs’ attorney has misconceived the practice, and that this is not a case where the plaintiffs are entitled to move for a new-trial under section 268 of the Code. The action is in equity, and was commenced to compel the delivery to the plaintiffs of a deed to some of them which had been signed and sealed, and acknowledged by Mrs. Mary Miller, in her lifetime, and deposited with the defendant Benedict as an escrow, subject to the performance of a contract made between the said Mary Miller and the plaintiff Oliver Stanton, and after the death of said Mary Miller to be delivered to the grantees therein named, who are the other plaintiffs, and the daughters of said Oliver Stanton.

The cause was tried before the Hon. James C. Smith, one of the justices of this court, who made and filed his decision containing his finding of facts and conclusions of law. But instead of rendering or ordering any final judgment in the case, the justice, having arrived at the conclusion that the plaintiffs were not entitled to. the relief sought by them, but were entitled to receive compensation in damages for the breach of the contract between Mrs. Miller and Oliver Stanton, and to have such damages ascertained and adjudged in this action, ordered that the plaintiffs have leave to move to have the legal representatives of Mrs. Miller made parties, if they should be advised that it was necessary; and also that the plaintiffs have leave to move for a reference, or an issue to ascertain the amount of such damages; and in the meantime the further hearing of the cause was ordered to stand over till the coming in of the report or verdict; and all other questions, including that of costs, were reserved.

The propriety of this decision, under the circumstances, does not seem to be material to the question of practice. It seems to us to be clearly a case within both the words and spirit of section 268 of the Code.

It is a decision on the trial of a question of fact by the court. It does not authorize a final judgment, but directs further proceedings before a referee, or otherwise. This is precisely the decision described in the present' section 268. The amendment of 1867, was adopted to remedy the inconvenience which arose from the fact that where the whole merits were disposed of by what was formerly known as an interlocutory decree, made after the trial of an equity case, there was no mode of reviewing the proceedings on the trial, except after the delay and expense of the further contemplated proceedings had been incurred, and the whole of which, if it should turn .out that any error had been committed on the trial or in the interlocutory decision, would be useless.

As evidence was formerly taken in equity cases, the merits of an interlocutory decree might be reviewed upon the evidence; but under the Code, the trial of an equity case being conducted in the same manner as an action at law, there remained, until the amendment of 1867, no known method of reviewing the questions arising on the trial of such an action, otherwise than by a bill of exceptions or a case, which was to be made within a specified time after notice of the judgment.

This case affords an apt illustration of the inconvenience of the former practice, and the propriety of the amendment of 1867. The plaintiffs claim that the justice at the circuit erred in refusing them the equitable relief which they claimed, and are unwilling to accept the issue quantum damniftcatus,• which the court has awarded. To proceed with the trial of such an issue would involve much expense and delay, the whole of which would have been uselessly incurred, if it should turn out that the justice at the circuit had erred in the admission or exclusion of evidence, or in Ms findings of fact or conclusions of law. It seems to us, therefore, that this is precisely one of those cases' which were intended to be embraced within the 268th section, as amended in 1867; and that the practice of the plaintiffs in making a cáse and moving for a new trial at the General Term, is authorized by that section, as it stands now.

The contract between the plaintiff Oliver Stanton and Mrs. Miller, the justice at Special Term finds to be a valid contract, and to have been fully performed on the part of Stanton and his family, and to be free from all objection as to fraudulent practices, imposition or undue influence, on the part of Stanton or Ms family, or want of capacity on the part of Mrs. Miller. Indeed, the evidence shows that the contract was prepared by Mr. Benedict under and according to the explicit directions of Mrs. Miller, who, of her own motion, consulted with and directed Mr. Benedict as her counsel, in the premises. The contract was made in June, 1870, and nothing can be more full, explicit and fair than’ this contract appears to be on the face of it. After a recital of the moving causes of the contract, the instrument proceeds:

“Now, therefore, it is mutually agreed between the parties that said Stanton immediately remove with his family to the home residence of Mrs. Miller on Union street in the city of Rochester, and at once assume all the responsibilities of housekeeping, taking possession and control of" said house and furniture, and paying all expenses of the same. And said Stanton agrees to assume all the care and support of Mrs. Miller, furnishing her attentions, nursing when sick, which she may require, so that she shall at all times be cared for and made as comfortable as possible during her natural life.

Mrs. Miller, on her part, in consideration of such care, support and attentions, hereby agrees to make sure to said Stanton and his family the house and lot which she now occupies as a home and family residence, the lot being one hundred feet front on Union street and one hundred feet deep. The title thereto being given to such member or members of said Stanton’s family as Mrs. Miller may choose, and to be made in such a way as she may be advised, and in such manner as "shall make it fully secure, at the same time under such conditions as to stand as ample security for the full and faithful performance of this contract on the part of said Stanton; and in case he fails to keep and perform his contract in its letter and spirit, his right to said property shall fail, and the same may be disposed of as said -Mrs. Miller shall choose. The title to said property to be given by a deed in escrow or by a will, as said Mrs. Miller may choose or be advised, after the said Stanton shall have become a resident and they shall have properly declared them intentions -to become citizens of the United States of America.”

Surely, there can be no doubt that the intention of the parties to this contract was to fully secure to Stanton and his family the house and lot in question, after the death of Mrs. Miller, provided the agreement on the part of Stanton, in behalf of himself and his family, should be fully performed on their part, in letter and spirit. And we are unable to see why, it being made between parties able to contract and being free, from all legal or moral objections, it is not a binding contract, or why, having been fully performed on the part of Stanton, and Mrs. Miller having died, it would not be entirely obligatory on her representatives, with all the incidents including measure of damages, if sued at law, which appertain to any other, valid contract. After Stanton and his family had broken up their residence and abandoned their respective. employments, in Cob'ourg, and removed to Eochester, abjured their allegiance, and taken the necessary steps to become citizens of the United States, in pursuance of the. contract, Mrs. Miller, also, in pursuance of the contract and under the advice of her counsel, Mr. Benedict, signed and sealed and acknowledged a deed conveying the premises to the four daughters of Stanton, which, on the face of it, was declared to be “made and taken subject to the use of said premises by Oliver Stanton for a home for himself and family during his natural life.” This deed was delivered to Mr. Benedict as an escrow, upon a written condition signed by Mrs. Miller as follows, viz:

“I have this day executed a deed of my house and . lot, which I now occupy, to Miranda P., Maria H., Harriet M. and Mary Anna Stanton, which is subject to the performance of a contract made by Oliver Stanton, their father, in regard to my support, and dated on the 23d instant. The said deed is delivered to O. M. Benedict of Eochester, in escrow, for the use of the grantees at my decease, and not deliverable to them before that time. . • Mary Miller.
June 29, 1870.”

Mrs. Miller died the last of the following July, but before her death, she had directed Benedict to destroy the deed. This seems to have been given at the instigation of her son, the defendant George W. Miller, who, it appears, came from his residence in Albany just before his mother’s death, took the control of her house, and interfered, with some harshness and violence, to remove the family of the Stantons from the house, to induce Mrs. Miller to revoke her intentions in regard to the disposition of the. house, and to destroy the deed in escrow. The justice who tried the cause has treated the action as a suit for the specific performance of the contract, the provisions of which are recited above, and has denied the title of the plaintiffs to relief, mainly on the ground of a supposed inadequacy of consideration. The specific relief, however, which the plaintiffs demand is the delivery to them of the deed deposited in escrow. Treating the action as one for specific performance, we cannot see that there was any such inadequacy of consideration as to afford evidence of any unfairness or overreaching on the part of Stanton. ■ The proposition, which came from Mrs. Miller, and was unsolicited by Stanton, involved the necessity of breaking up his home and all his social ties at Cobourg, the place of his residence, and the abandonment by himself and his four daughters, all adults, of the employments in which they were then engaged. Each of the daughters was a professional teacher; -was employed as such, and doubtless had, what was to her important, a circle of patrons and friends, the growth of a long acquaintance, and not easily to be acquired by a stranger, in a strange country. The arrangement not only involved the abandonment of all these advantages, but the devotion of their time, for an indefinite period, to the care and nursing of an invalid, one who had been such for many years, and her support during her life, while all they were to receive in return, until the death of Mrs. Miller, was the occupancy of the house. The house and premises are estimated to be worth $10,000. And it is impossible to say that here was such gross inadequacy of consideration as calls upon a court of equity to refuse the equitable relief usually granted upon contracts respecting the conveyance of real estate, and where the parties cannot well be put in statu quo. We see nothing extraordinary or unusual in such a contract on the part of Mrs. Miller.

, This property was her own, to dispose of as she saw fit. It constituted but a portion of her estate. Her remaining descendants were, at all events, as she seems from her expressions to have supposed, in prosperous circumstances. She seems to have understood that the whole estate remaining of her husband, and to which the family were entitled,'that is, as we understand herself and the defendant, George W. Miller, amounted to some $200,000, and, to use her expression, her other relatives had their hands and were well enough off. She herself was a helpless invalid, left alone to the care and charge of domestics, doubtless much isolated from society, and as is testified, saying that she had to lock herself in her room and was afraid of her life.

She well understood the state of her health, and the nature of the arrangement. The plaintiffs were her relatives, who had been, by some misfortune., reduced in their pecuniary circumstances, and as it would seem, from their avocations, persons of education and cultivation. Under such circumstances, who can say that it was an improvident arrangement on the part of Mrs. Miller, carefully guarded as the agreement was, to attempt to relieve herself of all the trouble and expense of maintaining the domestic establishment, and to secure not only social companionship, but support, kind care, attention and nursing during the remainder -of her uncertain life, and by these means, as far as possible, smooth the pathway of her declining days, by the disposition of what to her, after the contemplated - event, would be worthless.

It is not a question as to whether the defendant George Miller can be deemed to have received an adequate compensation for the property. It was not his. It belonged to Mrs. Miller, to dispose of as she saw fit. Indeed, it is extremely difficult to determine that any present consideration of value, is an inadequate compensation to the owner of property for an agreement to part with it at his death. The remaining interest is worthless to him. He agrees to part with it only when it is no longer of any value, so far as he is concerned.

The justice at the circuit seems to have looked at this case in the light of the after events, and from the standpoint of the heir-at-law, and not that of the owner. Mrs. Miller having in fact died within little more than a month after the making of the arrangement, it seems that the consideration was inadequate. But the true way to look at the transaction is to take the place of the parties as they stood at the time, and not according to the fact as it afterward resulted, but as it appeared, or may be presumed to have appeared, to the parties at the time the contract was made. Mrs. Miller was fifty-six years old, suffering from a disease by which she had been afflicted for years, and under which, from all that an unskilled person might know, she might survive for many years longer. The fact that Mrs. Miller was influenced in entering into the arrangement to some, perhaps to a great extent by motives of benevolence toward Stanton and his family, does not weaken the position of the plaintiffs. The heir-at-law has no legal right to complain, even had this been the sole motive. The contract furnished a valuable consideration, and where this is the case, what would otherwise be mere benevolence became an obligatory contract.

The cases of Rhodes v. Rhodes, (3 Sandf. Ch. 279,) and Parsell v. Stryker, (41 N. Y. 480,) show that the specific performance of contracts of this character will be compelled in equity.

. But we do not consider this to be an action for the specific performance of the contract. The plaintiffs claim to be entitled to the delivery of the deed, which was deposited in escrow. This is the specific relief demanded in the complaint. To compel the delivery of deeds and other instruments in favor of persons who are legally entitled to them, is an old head of equity jurisdiction ; is a most important branch of that jurisdiction, and is exerted in all suitable cases in favor of persons entitled to the possession of deeds or other instruments, (Story's Eq. Jur. § 703. Will. Eq. Jur. 307.) And a case where a deed has been delivered in escrow upon a condition which has been fulfilled, would seem to be one which especially justifies and calls for the exercise of this jurisdiction, since the withholding of the deed interferes with, and probably prevents, the vesting of the legal title. It appears that contemporaneously with the deed, Mrs. Miller also executed a will devising the property in question as the same purported to be disposed of by the deed, and making provision in regard to the residue of her property. This will was also deposited with Mr. Benedict, and was subsequently, and just before her death, destroyed by Mr. Benedict by Mrs. Miller’s direction, and at the instigation of the defendant George W. Miller. Both the will and the deed were communicated to the plaintiffs, and were acquiesced in by both parties as instruments by means of which the contract was to be performed on the part of Mrs. Miller.

. The will is not alleged in the complaint, nor is any relief sought founded upon it. If it were necessary to the relief of the plaintiffs, it is quite probable that the •provisions of the will in their favor might be established, notwithstanding its destruction. In the case of Loftus v. Maw, (8 Jurist, N. S., 607,) where a testator, in advanced years and ill health, induced the plaintiff, a niece, to reside with and continue valuable services to him on the faith of Ms representations that by so doing she would become entitled to the benefit of property for life at Ms death, and by a codicil to his will, wMch was, read over and explained to her, trusts were created in •her favor, the court held that the testator could not revoke the trusts. The vice chancellor, in that case, says, (page 609 :) “In cases of this kind, a representation that the property is to be given by a revocable instrument, 'is binding. It is the law of the court which makes it binding. Although it be of the essence of the representation that the instrument is to be of a revocable nature. * * The testator’s representation in tMs case, and any other case within the application of the doctrine, binds the property wMch he devised to the plaintiff as-completely, according to the law of the court, as if he had bound himself, in consideration of money, not to revoke the gift, and had made the person named in the will a purchaser of the property devised.”

Mrs. Miller has not destroyed the deed in escrow, and has not attempted, by any formal instrument, to revoke it. She had not the power to do so. An escrow signed, sealed and deposited, upon a valuable consideration, is not revocable by the depositor, except according to the terms of the agreement and deposit. The depositary of an escrow, under such circumstances, is as much the agent of the grantee as of the grantor, and fie is as much bound to deliver the deed on performance of the condition as he is to withhold it until performance." (Washb. on Real Prop., b. 3, ch. 4, § 2, pp. 371, 373. Shirley v. Ayres, 14 Ohio, 307. Ruggles v: Lawson, 13 John. 285. Belden v. Carter, 4 Day, 66. Hatch v. Hatch, 9 Mass. 307. Jackson v. Rowland, 6 Wend. 666.) Whether the deed can take effect without actual delivery may be doubtful, but when delivered the delivery relates back to the time of deposit. (Same cases, and 4 Kent’s Com. 454.)

In this case it appears that the contingency upon which the deed was to be delivered, viz., the death of Mrs. Miller, has happened. And the justice finds that the Stantons have fully performed the contract on their part. This being so, we are of the opinion that the arrangement created an equitable interest in the property in question, which ripened into an absolute equitable (if not legal) title on the death of Mrs. Miller; and that the plaintiffs are entitled to a delivery and the on stody of the deed, and that the same be recorded. This leads to a reversal of the decision at the Special Term. If this were an appeal, we should order such a decree as on the case we think ought to have been made at the Special Term, but under the section (268) under which this motion is made, we can do no more than order a new trial.

[Fourth Department, General Term, at Buffalo,

June 27, 1873.

Mullin, Talcoit and JE. D. Smith, Justices.]

New trial ordered ; costs to abide the event.-  