majority">Campbell, J.,

delivered the opinion of the court.

Whether there has been such a delivery of an instrument under the seal of the maker "as to make it operative as his deed, is a question of intention on the part of the maker. If he considered it as fully executed and operative, according to its terms, and intended it to have effect from a certain date, that is a sufficient delivery to give it' effect. The mere fact that the maker retains the instrument in his own possession and under his own control, if he has once effectually delivered it, does not prevent it from being enforced. But it is because of the effectual delivery of the instrument, whereby it is made the deed of the party, that it is enforced; for delivery is essential to the validity of a deed, as all the cases agree. A careful consideration of the facts disclosed by this record, as to the intent and understanding of Robert Williams with reference to the paper averred by the bill to be his deed, has convinced us that it was never delivered as such. It is certain that he had it drawn and signed it, and acknowledged it before a justice of the peace, who certified such acknowledgment; hut it is equally certain that he did not then deliver it or *846intend that it should then become operative. According to the testimony of E. P. Williams, as to the declaration made by Robert Williams on handing him the package containing the deed, it is manifest that he contemplated the taking effect of the deed mentioned after his death. The separate slip of paper signed by Robert Williams, and placed within the folded paper alleged to be a deed, is without any indication of the purpose of the maker, as to when the instrument should take effect as his deed. If he had designed it to take effect, it was easy to accomplish that design by delivering the instrument. That he did not deliver it, to take effect presently, shows that he did not so desire it. The separate slip did not constitute delivery, and was unnecessary, if delivery was made. It indicates that the making and acknowledging the instrument was precautionary; that the maker then intended to make the disposition of his property indicated by the instrument he subscribed, and that he did not intend it to take effect immediately, but at some time, in the future, when he should see proper, and, therefore, he retained control of the instrument. We take this view, upon the testimony of the witness for complainants to establish delivery of the instrument, in connection with all the facts in the case; but the record discloses such frailty of the memory of that witness, in reference to the key to the bank-box, as justly to lead to distrust of it, as to what was said or done, within his knowledge, by Robert Williams, in reference to the alleged deed, and we feel greater safety in rejecting all the evidence, on both sides, as to what Robert Williams said or did, and in considering the indisputable evidence of his subscribing and acknowledging the alleged deed, and the separate slip declarative of what he did and desired, and his retention of both within his own control for four and a half years after their being made, without any decisive act or declaration in reference to them. If a deed, when did it take effect? If it vested title in the grantees, from what date ? Was the legal title in the grantees from April 1, 1874? If not, from what date? It is incredible that Robert Williams intended the title to vest April 1, 1874. It is impossible to determine at what time it was his purpose that it should vest. The witness says he was told to *847put tbe deed on record after Robert Williams should die. The written slip placed with the instrument, and made for the purpose of declaring the intent of the- maker, is silent as to this and inconsistent with the testimony of the witness. Our view is that Mr. Williams did -not deliver the instrument, and died without the consummation of his scheme with reference to the property embraced in the instrument. There is too much uncertainty as to the intent of the maker, as to the taking effect-of the instrument, to enforce it as his deed. He never delivered it. To compel its,, delivery as his act and deed is to hazard making the- act of the court a substitute for his act. In all of the cases we have examined, in which a deed kept in the possession of the maker was enforced, the decrees were based on the ascertained purpose of the grantor that the deed should be effective as such by virtue of its execution. We are unable to find such purpose in the acts and declarations of Robert Williams and are convinced that his intent was that the instrument he subscribed should, at some future period, to be designated by himself, become effective by a delivery he purposed to make. We think it manifest.that Mr. Williams did not intend the instrument to be absolute as a deed at the date he. made it, and we have been unable to discover that he ever made it absolute. Therefore, it remained a purpose unexecuted and incomplete. The instrument cannot be upheld as a deed for want of delivery. It is not valid as a testamentary act, because it is not attested by witnesses, nor wholly written and subscribed by the maker.

Decree reversed and bill dismissed.

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