McGuire v. President & Directors Bank of Mobile , 42 Ala. 589 ( 1868 )

JUDGE, J.

On the bypothesis that the instrument from Thaddeus Sanford to George Cleveland was established by competent testimony, it is contended that it constituted nc bar to the plaintiff’s recovery, for the reason that the instrument is not a deed, but a will.

It is certainly true tbat an instrument wbieb conveys no interest or estate tbat is to vest upon its execution, and before the death of the maker, but which .is to depend upon the event of death to consummate it, can only be executed as a will, no matter what may be its form, nor what it may be called. But such is not the character of the instrument we are considering, which we think is clearly a deed that took effect in presentí. True, it did not take effect in possession, as to the nephews and nieces of the grantor and the children of such as had died; their possession and enjoyment was postponed until the death of the disposing party. But an immediate and present interest was vested in them on the execution of the deed — such an interest and estate as could not have been recalled by the maker. The reservation for his “ support, comfort, and maintenance," during the term of his natural life, was not such a general reservation of the maker’s right to deal with the property as his own, notwithstanding the instrument, as would prevent the instrument from having any effect until the maker’s death. This reservation, being restricted and limited to a specified purpose, did not impart to the instrument that ambulatory quality which forms the characteristic of wills, but does not pertain to deeds. For the authorities upon the question, as well as for a more particular discussion of it, see Gillham Sisters v. Mastin et al., decided at the January term, 1868.

But the court below erred in the admission of the secondary evidence objected to, to establish the deed. It is the settled law that there can be no fixed rules as to what is sufficient to authorize such secondary evidence to be received ; but as Mr. Greenleaf says, “ the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.” — Greenleaf’s Evidence, § 558. See, also, Tannis v. Doe, ex dem. St Cyr, 21 Ala. 449, and Green v. The State, decided at the January term, 1868.

Such was not done in the present case. Cleveland, the trustee, was, in life, the proper custodian of the deed. It was necessary, to make the secondary evidence of a copy competent evidence, to have shown that the original could not be found after a proper search had been made for it among his papers.

As our decision upon the question first discussed in this opinion will probably be decisive of the ease, we deem it unnecessary to pass upon any question presented by the record, not herein considered.

For the error above named, the judgment is reversed and the cause remanded.