¶1delivered the opinion of the court.
¶2This bill is filed by the'1 complainants, children of James Taylor, jr.j deceased, against the defendants, their brothers, to set aside' certain deeds, from the said James, to each of his sons, under and by virtue of which they claim his property.
¶3As to the deed to James Taylor, jr., one of the defendants, dated in 1834, and proved and registered in 1838, in the life-time of the donor, we think there exists no ground of objection. The whole body of evidence negatives the charge of imbecility of mind, so as to disqualify the donor from the capacity necessary to enable him *598to make a valid deed; nor do we think there is any ground for the charge of circumvention and fraud.
¶4But the deed of gift to Samuel, for the two negroes, Patty and David, the bill of sale to William, for the four negroes, Jennet, Nancy, James and Mary, and the deed of gift to Alden, of the two small tracts of land were never delivered as deeds to the parties claiming under them.
¶5Upon this subject, the evidence is as clear and unquestionable, as it is, that the old man was capable of making these deeds, and was uninfluenced by any circumvention or fraud on the part of his sons. These deeds were not intended by him to take effect during his life-time. He signed and acknowledged them before witnesses, and had them deposited in his trunk, in his own house, to be there kept until after his death, when he said each man could get his own. He told several witnesses, that he did not intend to give the staff out of his own hand during his life. The fact of the non-delivery of these deeds being unquestionable, it is clear they cannot take effect as deeds.
¶6But the defendant’s counsel insists, that if they are not deeds, they are valid as testamentary papers. This may possibly be true, at least as to one of them, but that question is not now before the court. They have never been propounded and admitted to record as testamentary papers, in the proper forum. Until. this is done, they cannot be so regarded.
¶7But as their validity in this point of view is insisted on — this court will content itself with declaring their invalidity as deeds, and permit the case to continue open for further decree in the chancery court, until the parties have time to take such steps to establish these papers as a will, should they be so advised.