59 Ala. 349 | Ala. | 1877
The chancellor erred in holding that the instrument on which this suit was founded, executed by Mrs.
Mrs. Hall never exercised the power of revocation she reserved. Neither of the events happened upon which she could exercise the power of appointing another trustee. She never complained of the instrument, as in any respect, not expressing her intention; and she is dead without leaving any creditors to complain of its operation.
There is no rule of law which prevents an instrument like this, if intended to be a deed, from having effect as a deed. The intention in this regard of the maker, must be ascertained from the writing itself viewed in the light which the circumstances attending the transaction may shed. In this
The argument that it is a will is founded chiefly upon the provisions by which Mrs. Hall reserved the possession and use of the property during her life, and a power to revoke-the instrument. According to numerous decisions of this and other courts, the former of these provisions does not by itself produce the effect contended for. And in regard to the power of revocation, the better opinion is that it tends rather to rebut than to sustain the idea that the instrument containing it is of a testamentary character. “ The insertion of such a clause, so far from indicating an intention to make a will, imparts quite a contrary color to the transaction, as a will wants not an express power to make it revocable.”—(1 Jarman on "Wills, 17). And even more decidedly is the intention implied, of making an instrument operative to transfer the title from its date, to-wit, a deed,-—-by the declaration in it, that in case the person to whom as trustee it is made, shall decline to accept the trust, or after accepting resign it, or die, in the lifetime of Mrs. Hall, she shall have -the power to appoint another trustee in his stead.
"We are clearly of the opinion that the instrument in question was properly put into execution as a deed, and need not be offered for probate to be established as a will.
The parties having agreed, in the event that this should be our opinion, upon the terms of a decree by consent which .should be entered in this cause, let the decree so agreed on be enrolled on the minutes of the court, and executed.