delivered the opinion of the court.
The appellants, as heirs-at-law of John Williams, deceased, filed this bill in the District Chancery Court, at Carrollton, against the appellees, for the purpose of setting aside and annulling a deed of conveyance made by Williams, for thé benefit of the appellees.
The substance of the bill is, that the deceased died possessed and seised of a large personal and real estate, in this State, and in the State of South Carolina; and that, some months before his death, he was prevailed upon by the artifice and undue influence of the appellees, to execute an instrument of writing, on the 18th July, 1850, to the following effect: In consideration of his regard and good-will for James W. Canty and Camilla, his wife, and in consideration that they had theretofore supported him at their house, and would thenceforth during his life support him, and provide him with all necessary board, lodging, nursing, and attention, without charge, he covenanted and agreed to and with Zackariak Canty, trustee, to stand seised and possessed to his own use during his life, and no longer, of certain specified slaves and lands; and from and immediately after his death, to the use of the said Zachariak Canty, trustee, who, immediately after the grantor’s death, shall convey to
The amended bill alleges, that neither Canty nor his wife ever undertook or promised to perform the services and offices for John Williams, mentioned in the deed; and if such services were rendered during the remainder of his life, that they were rendered gratuitously, and not under any contract with Williams for that purpose. It further alleges that the deed was never fully executed, and that it was never delivered by Williams, or by any one authorized by him.
The answer of Canty and wife admits that there was no relation of blood or marriage between them and Williams, and the execution and delivery of the deed; but denies that he was non compos mentis at.the time of its execution, or incapable of executing a valid disposition of his property, or that any fraud or undue influence was used by them to induce him to execute the deed, either directly or indirectly; states thatj before Williams left South Carolina, in 1846, and came to Mississippi, he had received many acts of kindness and attention from the respondents; and, after his return to
The answer of the administrator in this State denies that he holds the slaves mentioned in the deed, as administrator of Williams, and states that he holds them as agent of Zachariah Canty, the trustee in the deed, and is accountable to him for them.
Upon the hearing, the bill was dismissed, and from that decree this appeal is taken.
Before we proceed to consider the main question presented by the bill, it is necessary to notice some legal objections which are urged in behalf of the appellant against the validity of the deed under which the appellees claim title.
First. It is objected that the deed is invalid as a covenant to stand seised, for want of a sufficient consideration; and, as there was neither the relation of blood nor marriage between the parties, that the consideration of natural love and affection, or the like, will not support the deed. But the deed states a further consideration of services rendered to the grantor before its execution, and to he continued to him during his life. That is clearly a valuable consideration. As to the j>ast services for his support and comfort, the consideration had already been received by him; and as to future care and support, that was a condition subsequent, which is shown by the evidence to have been fully and faithfully performed by the appellees. It is said that there was no contract between the parties binding the appellees to perform these services. But that was necessary. By the terms and legal effect of the deed, this part of the consideration was a condition subsequent, and it was only necessary that the appellees should perform the condition, in order to give effect to the conveyance to their use.
Secondly. It is. objected that the instrument is testamentary in its nature, and therefore that no title can be asserted under it until it be admitted to probate. It would be sufficient to obviate the force of this objection, that it was not set up in the bill; but, on the contrary, the instrument is treated as a deed, and is prayed to be set aside because of the incapacity of the grantor to make'it,
Tbe instrument was in effect a conveyance, wbicb toot effect upon its execution and delivery to tbe appellees, vesting an interest in them, to take effect in possession at the death of tbe grantor. It was plainly a covenant to stand seised to the use of tbe parties for whose benefit tbe property was intended to be conveyed, whose estate vested in possession, at the determination of bis estate for' life reserved in it. Wall v. Wall, 30 Miss. 99. Such an instrument takes effect upon its execution and delivery, as to the interest of tbe beneficiaries, and concludes tbe grantor of tbe right of further disposition. And, of course, it has none of tbe characteristics of a will.
But tbe principal ground of controversy is the mental capacity of Jobn Williams to make a valid disposition of bis property. Upon this point tbe testimony is exceedingly voluminous, and extends into many minute details of his conduct, habits, and peculiarities for several years before his death, both in this State and in South Carolina.
It appears that Williams came to this State in the year 1846, and remained here until the spring of the year 1850, when he returned to South Carolina, and took up his residence with the family of the appellees. The greater part of the testimony to show his mental incapacity, is that of witnesses who testify in relation to his conduct and condition whilst he was in this State. These witnesses generally prove that his conduct was strange and extraordinary, and irreconcilable with the condition of sanity. He frequently declared his incapacity to attend to his business, and had it generally transacted by another ; his 'conversation and remarks were incoherent and flighty, with forgetfulness of names of persons and things of recent occurrence; he was very excitable in his temper, exhibiting sudden transitions from anger-to good humor, and from laughter to anger; fickle and whimsical in his expressions about the disposition of his property; frequently laughing in a silly manner without any cause. Some of these indications of imbecility are also shown to have been exhibited after his return to South Carolina. Upon the whole, the testimony of the witnesses in this
On the contrary, the witnesses in South Carolina, who saw him and had opportunities of judging of his mental condition, from the time of his return up to the date of the deed, state that he was in his right mind, and capable of making a rational disposition of his property. It is true that he occasionally exhibited strange conduct ; but it clearly appeals by the testimony of witnesses who saw him frequently, and had conversations with him, that he was entirely capable of making a valid disposition of his property. These witnesses are, for the most part, persons of high intelligence, and had ample opportunities of. judging as' to the state of his mind; the lawyer who drafted the deed, the subscribing witnesses to it, his attending physician during his sickness after his return to South Carolina, and several gentlemen who saw him frequently and conversed with him about the time of the execution of the deed. It appears by their testimony that he had been laboring for a great number of years under partial paralysis, which rendered his motions awkward and his utterance difficult, in addition to which he had been addicted to intemperance in drinking, though not to the extent to impair his mind. These causes produced petulance, absence of mind, and general ill feeling, which caused many strange and peculiar actions, which were frequently exhibited, as testified to by the witnesses in this State; but, in the opinion of the numerous witnesses who knew him after his return to South Carolina, and had known him for many years previous, and had frequent intercourse with him after his return, notwithstanding these strange demonstrations, he was entirely competent to make a rational disposition1 of his property. And the disposition of the property made by this deed was such as he had for many years declared that it was his intention to make, in consideration of the gréat kindness ■ which he had received from the appellees’ family. This appears to have been done in pursuance of a settled purpose frequently expressed, which is evidence that it was done by the exercise of reason and memory, and tends to show that he had mental capacity to do the act.
Although the actions and peculiarities proved by the witnesses before his return to South Carolina are very strange, yet the condi
We, therefore, think that the decree is correct, and should be affirmed, and it is ordered accordingly.