Abney v. Moore , 106 Ala. 131 ( 1894 )

HARALSON, J.

— The instrument to be construed,— which will be set out in the report of the case, — perfect in form as a conveyance, concludes with the following provision: “Provided always, and it is expressly understood that this conveyance is not to take effect until after my death, and that, at my death, the title to the foregoing described lands ■ are to vest immediately in my said children.” These are the only words employed in the instrument to suggest the idea that it is a will and not a deed.

“In determining whether an instrument be a deed or will, the main question is, Did -the maker intend any estate or interest whatever to vest before his death, and before the execution of ...the paper? Or, on the other hand, did he intend that all the interest and estate should take effect only after his death? If the former, it is a deed; if the latter, a will; and it is immaterial whether he calls it a will or a deed, the instrument will have operation according to its legal effect.” Gillham Sisters v. Mustin, 42 Ala. 366; Trawick v. Davis, 85 Ala. 345.

Another rule of construction in such cases is, that when the paper on its facéis equivocal, the presumption is against its operating as testamentary, unless it is made clearly to appear that it was executed animo testandi, or being intended by the maker to operate as a posthumous disposition of his estate. — Rice. v. Rice, 68 Ala. 218; 1 Redf. Law of Wills, 170-2. When the paper can have no effect as a deed, the court will incline to regard it as a will, if ‘in that character, effect can be given to the evident intent of the maker, which at last is the question of controlling. importance. — Trawick v. Davis, 85 Ala. 345, supra; Sharp v. Hall, 86 Ala. 114; Adams v. Broughton, 13 Ala. 731.

Wills are ambulatory during the life of the testator, and are necessarily revocable; but deeds take effect by delivery, and are operative and binding during the life of the grantor. As was said in Crocker v. Smith, 94 Ala. 297 : “The intention of the maker is the ultimate object of the inquiry, — whether it was inténded to be ambulatory and revocable, or to create rights and interests at the time of the execution which are irrevocable. If the instrument cannot be revoked, defeated or impaired, by the act of the grantor, it is a deed ; but if the estate, title, or interest is dependent on the death of the testator, — if in him resides the unqualified power of revocation, — it is a will.” — Jordan v. Jordan. 65 Ala. 306.

In the case before us, we have as perfect a fee simple deed as can be drawn to convey land from the grantor to the grantee, and the only condition prescribed upon its operation in presentí is the one we have quoted above. It was executed without the attestation of a witness, so as to make it a will in any event. We must presume the maker knew that a will could not be executed without a witness, and this is a fact of very controlling importance, when the intention in the execution of the instrument is sought. Construing his intentions by his acts, he must have known, that an acknowledgment before a notary public in due form, was sufficient to make the paper a deed, so far as related to its execution, and that this was not sufficient for its legal execution as a will. The grantor delivered the instrument the day he executed it, to the grantees, who were his children ; he reserved in it no power of revocation ; he continued to live on the lands with his children, in possession and control of them during his life, and never made any other disposition of them. Under these circumstances, we must'hold, that when he provided that the conveyance was not to take effect until after his death and that at his death “the title to the foregoing lands are to vest immediately in my said children,” he intended no more than to reserve to himself the use and enjoyment of the property during his life time, and that the operation of the gift, so far as possession was concerned, was to be postponed until his death, up to which time, the property was to remain, not his own but as his for use and enjoyment.

If this was not his intention, why should he have gone to the trouble and care to make and execute a paper, which he called a conveyance in its body, perfect in form, as an absolute conveyance, — such as is usually employed for'sucha purpose, — and which is unusual and unnecessary in making a will; and have acknowledged it in the manner most usually employed to make it a deed, but never effectually done, and generally known to be ineffectual, to make it a will; and have delivered it to the grantees, — the usual and necessary mode of perfecting a deed, and not usual or necessary to make a will operativeand .have reserved no power of revocation; why should he have done all this, so like the conduct of one intending-to make a conveyance in presentí, if his intention was not to pass the title until after his death? He had already used the proper and necessary words to make an absolute, vested title by the instrument in his children, and when he provided that the conveyance should not take effect until after his death, when the title should immediately vest, lie necessarily meant, — if we are to give effect to what he was doing, — to use the word title in this connection, as the synonym of possession, which at his death should pass to the grantees. Such a construction comports, as we have shown, with the general tenor of the deed, and is sanctioned by reason and authority. Any other construction would defeat the instrument either as a deed or will, a result which should be avoided, if it can be upheld as either. Golding v. Golding, 24 Ala. 126; Elmore v. Mustin, 28 Ala. 313; McGuire v. The Bank, 42 Ala. 591; Hall v. Burkham, 59 Ala. 353 ; and authorities cited supra,

The plaintiff as administrator of the deceased grantor had no right of recovery in this case. The creditor, Johnson, if entitled to payment of his note out of the land, must seek relief in another forum.

Reversed and dismissed.