Griswold v. Griswold , 148 Ala. 239 ( 1906 )

ANDERSON, J.

— While there ivas evidence that the grantor to the deed, who is the father of all the parties, informed the draftsman of the instrument that he wished to make a will, it is in form a deed; and, conceding that he signed it, knowing what it was, the question of delivery arises. “A grantor may deliver a deed to a third person, to hold until, the grantor’s death and then to deliver it to the grantee. Such a delivery is perfectly valid.; but the deed must he left with the depository without a reservation by the grantor, express or implied, of the right to estop it or otherwise control its use.”—9 Am. & Eng. Ency. Law, 157, and numerous authorities there cited. Our oavu court, in the case of Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500, speaking through Justice Tyson, said: “For so long as he reserves to himself the locus penitentiae, there is no delivery — no present intention to divest himself of the title to the property. We take it that the grantor need not expressly reserve to himself this right to repent; but- if his act, upon which a delivery is predicated, does not place the deed beyond his control as matter of law, then his right of revocation is not gone.”—Frisbie v. McCarty, 1 Stew. & P. 56; Foster v. Mansfield, (Mass.) 37 Am. Dec. 154. There was evidence from which the jiiry could infer such a delivery of the instrument as the Iuav requires to make it operate as a deed, and this question should have been submitted to them. The trial court properly refused the general charge requested by the defendants, and erred in giving the one requested by the plaintiffs.

Our attention is called in brief of appellee’s counsel to the case of Richardson v. Woodstock, 90 Ala. 270, 8 South. 9 (9 L. R. A. 348), and especially to the following expression in the opinion: “A deed cannot be delivered -after the death of the grantor.” This expression is in complete harmony'with this opinion and all authorities on the subject. Of course, there cotild have been no valid delivery after the death of the grantor by either of the daughters, unless there was a valid deliv-ry from the grantor to them, or one of them. There is nothing in the Richardson Case, supra, to prevent a valid delivery of a deed by a grantor to a third person, to hold and deliver to the grantee after the death of the grantor.

It is suggested by counsel for appellee that the instrument in question is a. will,- and not a deed, and, if such is the case, would not defeat plaintiff’s right to recover the land. If the instrument was intended as a will, and not a deed, not having been probated and proven, it could not operate to defeat the plaintiff’s recovery. “The genera1/ characteristics which distinguish deeds from wills have been repeatedly declared; yet no definite, uniform test has been stated by which to determine the character and' operation of each particular instrument, and none can well be. The intention of the maker is the ultimate object of inquiry— whether it was intended to be ambulatory- and revocable, or to create rights and interests at the time of 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.” —Crocker v. Smith, 94 Ala. 295, 10 South. 258, 16 L. R. A. 576; Jordan v. Jordan, 65 Ala. 306; 30 Am. & Eng. Ency. Law, 577.

The instrument upon its face purports to- be a deed, but there is evidence that the grantor told the draftsman that he wished to make a will; yet, in the absence of any proof from which a contrary intention could be inferred, the instrument should be treated as a deed, provided there was such a delivery as is essential to constitute a valid delivery under the -rule heretofore declared. It would therefore seem that, if the grantor made an irrevocable delivery of the instrument, it operated to pass the title to the grantees, and -was a deed; and this would be the case, notwithstanding it was not to be delivered to the grantee until after his death. If it was a deed, the title of the defendants should prevail. If there was no valid delivery, it could not operate as .a deed and defeat plaintiffs’ right to recovery. In case the jury should find that it was never delivered, so as to make it a valid deed, then it is needless for us to decide whether or not it -is a. will, as that is a question to be settled in another forum. If a will, it would not avail the defendants in the case at bar, not having been probated and proven.

For the errors above designated, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell-, and McClellan, JJ., concur.