"Q. Did he say anything about being opposed to the probating of estates ?

"A. Well, he grumbled about the expense that was attached to it, and he said as a rule the lawyers got a good share of it. He wanted his fixed so there wouldn't be any expense.

"Q. When he came there the second time, and this last deed was made, the deed you have just referred to was made, did he say anything at that time about fixing it so it wouldn't have to be probated?

"A. I don't remember of it now. It was read over to him, signed, witnessed, and acknowledged. I think Alvin Lloyd and Henry Friedley witnessed it. I took the acknowledgment as a notary public at that time. That acknowledgment was certified on the instrument itself in the usual form in vogue in this State. It was a long form warranty deed.

"Q. Was John Luscombe present on that occasion, the second time?

"A. To the best of my remembrance he was sitting down by the stove. I couldn't say positive. I think he was. The first time he wasn't there.

"Q. The second time he was?

"A. Yes, sir; as I remember it.

"Q. After the deed was drawn and fully executed except delivery, what was done with it?

'A. The three of us went over to the People's Savings Bank and I gave Lyman the deed. He passed it to John, and John handed it to me and I took care of it.

"Q. Lyman Luscombe delivered it to John Luscombe ? "A. Yes, sir.

"Q. And John handed it to you?

"A. Yes, sir.

"Q. What were your instructions in relation to what was finally to be done with that deed?

"A. The instructions were the same as the other, that I was to keep the deed and in case of his death I was to pass it to John.

"Q. That is, hand it to John?

"A. Yes, sir.

"Q. Now, at the time of the delivery, or the execution of this deed, or either of them, was there anything said in regard to recording the deeds by Lyman Luscombe?

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'A. He stated he didn't want it recorded. The first

deed I inserted the words: This deed not to be recorded until after my death.'

"Q. Was there anything said about it at the time of the second deed ?

"A. He didn't want that recorded, said the same. "Q. What was the language you inserted?

"A. "This deed is not to be recorded until after the death of Lyman Luscombe.' Lyman Luscombe came to me again in the winter of 1911.

"Q. At the time of making the second deed was there anything said by Lyman in respect to his wanting to retain control of the deed or property during his lifetime? "A. No, sir."

I think it is quite clear from the foregoing testimony that Lyman W. Luscombe made and intended to make delivery of the deed in question, and that by such delivery a present estate passed to the grantees named in the instrument which could not afterwards be defeated through any change of mind on the part of the grantor. Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461); Wilbur v. Grover, 140 Mich. 187 (103 N. W. 583); Blackford v. Olmstead, 140 Mich. 583 (104 N. W. 47); Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941), and cases there cited and reviewed.

The judgment should be affirmed.

MOORE, C. J., and STEERE and MCALVAY, JJ., concurred with BROOKE, J.

OSTRANDER, J. (dissenting). The subject of this controversy is 80 acres of land in the county of Montcalm in this State which was at one time owned by Lyman Luscombe; the parties complainant and the parties defendant each claiming title to the land through the said Lyman Luscombe. When the bill was filed, Lyman Luscombe was living and was made a party defendant. He has since died, but not until after his deposition had been taken, which appears in the record. The case involves some disputed facts, which the circuit judge determined

favorably to the complainants, and held that a deed made by the said Lyman Luscombe, conveying the premises to the defendants, should be delivered up to be canceled, that the defendants should convey to the complainants, and that a certain instrument made by the said Lyman Luscombe in his lifetime, conveying the said premises to the complainants, should be restored, "and that the said agreement between said Lyman Luscombe and John B. Luscombe be specifically performed."

The case made by the bill is that Lyman Luscombe, an unmarried man, residing at some distance from the land in question, proposed to his brother, the complainant John B. Luscombe, in March, 1878, that he remove his family and belongings to the land in question, saying that, if he would do so and would work and operate the farm, improve it, and pay the taxes, he might have the entire proceeds and profits of the land; that pursuant to this request the said John B. Luscombe consented to and did remove to the premises, occupied and tilled the land, and remained in possession until the spring of 1894. At that time the dwelling house had become dilapidated, and the complainant John B. Luscombe consulted with Lyman, suggesting that it was advisable to erect a new dwelling house upon the premises, receiving the reply that he should go on and erect a dwelling house and continue to live in it and upon the premises, that he, the said Lyman, had fixed the title to the premises in such a way that John B. Luscombe would have the same after his death, and that he would fix the title in such a way that said John B. should have the same after his death, without exactly stating the terms of the arrangement, whatever it was. Said John B. assented, erected a large and more commodious dwelling, paid the entire expense thereof, and built other buildings and structures, and during all the time down to the filing of the bill of complaint, which was in March, 1911, continued to occupy, crop, and improve the premises. Said John B. Luscombe received word, so he charges, in March, 1905, or

thereabouts, that a deed theretofore made by Lyman Luscombe, conveying the land to himself, was invalid and void because it had never been delivered. He informed Lyman Luscombe what he had heard, and thereafter, and on the next day, the complainant John B. and the said Lyman went to the city of Belding, and were informed that the former deed was invalid for the reason stated, when it was agreed between John B. and Lyman that a deed of the premises should be executed and delivered, conveying to John B. and his wife, Elizabeth, the said premises for the period of their natural lives with the remainder to complainant Robert Luscombe, a son of said John B. and Elizabeth; that such a deed was executed and then and there delivered to John B. Luscombe, who handed the same to the scrivener, "to be by him safely kept during the life of said defendant Lyman Luscombe, and then to be by him placed on record in the office of the register of deeds of said county of Montcalm." Later, and in February, 1911, complainant John B. was told by Peter Peterson, one of the defendants, to remove from the premises and surrender possession of the same to him, he claiming to be the owner thereof as grantee of Lyman Luscombe. Inquiry made by complainant John B. discovered the fact that the scrivener had delivered up the deed made in March, 1905, to the said Lyman Luscombe. An injunction is asked for, restraining Peter Peterson from entering upon the premises and disturbing complainants, restraining all defendants from concealing, disposing of, or destroying the deed of conveyance made in March, 1905, and a decree restoring said deed in case it had been lost or destroyed, and

"That the said defendant be decreed specifically to perform said agreement so made by said Lyman Luscombe to and with your orator, John B. Luscombe, in the spring of A. D. 1895, as herein before set forth, and to convey said premises to your orators and your oratrix in due form of law as agreed by and between said John B. Luscombe and said defendant Lyman Luscombe at the time last

above stated, your oratrix and orators being ready and willing and hereby offering to perform said contract fully and specifically on their part, and to do or perform any other act or thing that may seem to said court to be equitable in the premises."

Lyman Luscombe answered the bill, and denied the material allegations thereof, averring that John B. Luscombe came to him in March, 1878, or about that time, wanting to know what kind of an arrangement he could make to work the land in question, and that he told him that if he would work the farm in a good and proper manner, improve it, keep it fenced, pay the taxes, do the road work, he could have what he made thereon for his labor; that thereupon John B. moved upon the land, raised large and valuable crops, and made a good deal of money, enough to keep his family, and in addition, to purchase an adjoining farm; that he cut down and sold many hundred dollars' worth of valuable timber, taking the entire proceeds, had been able to travel extensively, but for several years had not kept up the fences, and had allowed the same to become dilapidated. Further answering, he says that John B. came to him "a few years ago' and requested permission to build the house now standing on the premises, that he gave him permission to build the house, but denies that it cost the amount stated in the bill, and says it did not cost to exceed $1,000, and in this connection avers that the receipts of the farm at a fair rental value prior to the time when the house was erected would exceed the value of all improvements placed thereon, before or after that time. Concerning the execution of the conveyance, he denies that he ever executed any at a time when complainant John B. was present, and avers that John B. was not informed by himself, and did not know of his intention to make any conveyance or conveyances of the land in question; that because he was becoming old, being 79 years and more of age, he desired to make a testamentary disposition of his property and considered the matter for a time, when he went to a justice of the