Gillham Sisters v. Mustin, 42 Ala. 365

42 Ala. 365 | Ala. | 1868

JUDGE, J.

The law is now too well settled to admit of controversy, that “ if an instrument be in the form of a deed of gift, and called such, still, if its purpose be testamentary, and it is only to be consummated by death,” effect will be given to it as a will, and not as a deed. — Dunn and Wife v. The Bank of Mobile, 2 Ala. 152 ; Shepherd v. Nabors, 6 Ala. 631; Thompson v. Johnson, 19 Ala. 59; Kinnebrew v. Kinnebrew, 35 Ala. 628. And “ in determining whether an instrument be a deed or will, the main question is, did the maker intend to convey any estate or interest whatever, to vest before his death, and upon 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 deed, the instrument will have operation according to its legal effect.”— Wall v. Wall, 30 Miss. (1 George,) 91.

This principle of the law is not in conflict with the rule which permits a person to settle property by deed to his own use during his life, and after his decease, for the benefit of other persons, though such a disposition may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party ; for the postponement is in such case produced by the express terms, and does not result from the nature of the instrument. — 1 Jarman on Wills, 12. Thus, says Mr. Jarman, “ if a' man, by deed, limit lands to the use of himself for life, with remainder to the use of A., in fee, the effect upon the usufructuary enjoyment is precisely the same as if he should, by his will, make an immediate devise of such lands to A. in fee ; and yet the' case fully illustrates the distinction in question ; for, in the former instance A., immediately on the execution of the deed, becomes entitled to a remainder in fee, though it is not to take effect in possession until the decease of the setlor, while, in the latter, he would take no interest whatever until the decease of the testator should have called the instrument into operation.” — 1 Jarman on Wills, 12. It is the ambulatory quality of wills which forms their characteristic, and -this quality does not pertain to deeds.

A deed of the character designated above might be valid as a deed, if it contained a limited reservation of the power of revocation. But where there is a gerieral reservation— or something like a reservation — of the maker’s right to deal with the property as his own, notwithstanding the instrument, and no conclusive effect -can be given to it until the death of the maker, the law regards the. instrument as testamentary. — Fletcher v. Fletcher, 4 Hare, 79; 1 Jarman on Wills, 12, 22. But to make it such, it is essentially requisite that the instrument should be made to depend upon the event of death to consummate it; for where a paper directs a benefit to be conferred inter vivos, without reference expressly or impliedly, to the death of the party conferring it, it can not be established as testamentary. — 1 Williams on Exr’s, 88 ; see also, Adams v. Broughton, 13 Ala. 731.

It clearly appears that the instrument before us, tested by the rules above announced, can have operation only as a will. It is true, the evidences of debt described in the instrument,- were delivered to the sisters of the maker, together with the instrument, at the time the latter was executed. But-the effect of the delivery is qualified by the words following : •“ And in the event I shall die or be killed in the casualties of the war, whither I am now going, then all such moneys are to become the property of my said four sisters, to be equally divided between them; bub if 1 should survive and return, then this instrument is to be null and void, otherwise, to remain in full force and effect.” The instrument directed no benefit to be conferred inter vivos, and depended upon the death of the maker to consummate it; it is, therefore, of testamentary character, and can have no effect as a deed.

Judgment affirmed.