Griffith v. Marsh , 86 Ala. 302 ( 1888 )

STONE, C. J.

The fate of this case depends on the interpretation of a written instrument, executed by B. M. Weekes and wife to Mary E. Bond, bearing date July 29, 1881. The reporter will set out the instrument. In interpreting said instrument, the trial judge held it was a deed. If he was correct in that interpretation, there is no error in this record, and the judgement must be affirmed. The appellant contends that the paper title under which the suit was defended, is testamentary in character; and there being no probate of it as a will, it opposed no bar to the present suit, which is prosecuted by the heirs at law of Weekes, who executed the instrument.

In interpreting the deed or will, as we may find it to be, we have no aids, save those furnished by the instrument, its recitals, and the certificates attached to it. In form, it is in all respects a deed, unless the clause after noticed changes its character. It recites a valuable consideration, as distinguished from one merely good. It commences in the customary form of deeds, and contains words of bargain, sale and conveyance. It contains a covenant of warranty of title, binding the heirs of the grantor, and concludes as follows: “Given under our hands and seals, this 29th July, 1881;” is signed and sealed by Weekes and his wife, and attested by two subscribing witnesses. Apppended to it is a certificate of proof of its execution, made by one of the subscribing witnesses, before, and certified by the judge of probate, bearing date Aug. 6, 1881; and on the same day a second certificate of the judge of probate, that it was filed in his office for record, and recorded. And it is, as we have seen, executed by both Weekes and his wife. Now, these are all properties of a deed, and not of a will.

The instrument contains the following clause, and on it is based the contention that it is a will: “And we, the said B, M. and Nancy "Weekes, agree that, at and after our death, the said Mary E. Bond is to have all the benefits of said lands in fee simple, but it is to belong to us, as long as we, or either of us shall live.”

Certified proof of execution, and certificate of registration, in the absence of countervailing proof, not only raise the presumption of delivery, but are strongly pursuasive to show that parties themselves regarded the instrument as a deed.

In the present case, as we have no outside or attendant facts to aid us in its interpretation, we must deal with the writing as we find it. In Sharp v. Hall, at the present term, we showed that a deed may be made, and upheld as such, which reserves the entire use and enjoyment of the property to the grantor during life, and enures to the actual benefit of the grantee only at the death of the grantor. — Elmore v. Mustin, 28 Ala. 309; Hall v. Burkham, 59 Ala. 349; Daniel v. Hill, 52 Ala. 430.

We think we carry into effect the intention of the parties to the present contract, when we hold, as we do, that it was intended as a deed, and not as a will.

Affirmed.