Simpson v. McGee , 112 Miss. 344 ( 1916 )

Smith, C. J.,

delivered the opinion of the court.

On the 5th day of March, 1894, Harriet Houston executed and delivered to Babe, Monk, and Lutie Houston an instrument in writing, in form a deed, conveying certain property, and containing the following provision: “This to take effect only after the death of said Harriet Houston.” On the 17th day of October, 1904, Harriet executed and delivered to Julia Simpson a regular deed to the same property. Both of these instruments were properly acknowledged, and the first was filed for record in the office of the chancery clerk of Newton county on the 9th day of April, 1895, and the second on the 22d day of November, 1904. After the death of Harriet, which occurred in 1905, Babe, Monk, tod Lutie Houston, appellees herein, filed a bill in the court below, praying for tbe cancellation of tbe deed' executed by Harriet to Julia, and also of two deeds of trust wbicb Julia bad given on tbe property. Julia,, tbe trustee, and beneficiaries in tbe deeds of trust given by ber, who were made parties defendant to tbis bill,, filed an answer and cross-bill, praying for tbe cancellation of appellees’ claim to tbe property. Tbe decree1 was in accordance with tbe prayer of tbe original bill..

If tbe instrument executed by Harriet, under wbicb appellants claim title to tbe land, is a deed, tbe decree of tbe court below is correct; if it is not a deed, but is testamentary in character, tbe decree is erroneous. It is clear from tbe language hereinbefore quoted from tbis instrument that it was tbe donor’s intention that tbe instrument itself should not take effect, for any purpose, until after ber death; consequently, under tbe rule announced in Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147, and applied in Sartor v. Sartor, 39 Miss. 760, and Cunningham v. Davis, 62 Miss. 366, it must be held to be testamentary in character, and therefore not a deed.

Reversed, and decree here in accordance with the prayer of appellants’ cross-bill.

Reversed.