Knight v. Knight, 97 So. 481

97 So. 481 | Miss. | 1923

Anderson, J.,

delivered the opinion of the court.

This is an appeal to settle the principles of the cause from a decree of the chancery court of Tunica county. The question involved is whether the following instrument of writing is a will or a deed:

“For and in consideration of the sum of ten dollars to me this day cash in hand paid, the receipt of which is hereby acknowledged and for the futher consideration of love and affection which I have for my two daughters Corneil Cannarck Knight and Dorothy Thomas Knight, who are now both minors, I convey and warrant to them and their children after them, a remainder interest in certain tracts or parcels of land situate in the county of Tunica and state of Mississippi, the same being more particularly described as follows: [Description of land omitted.]

“But this deed is made under the following conditions, to-wit:

“That I, Woodson T. Knight, reserve for my benefit and for the benefit of my assigns a life interest in all of said lands and the possession, use and occupation of the same during my life after which this conveyance is to go into effect and my said daughters at the time of my death are to become possessed of an indefeasible title in fee simple to all of said lands with remainder interest in • their children at the time of their death.

“Witness my signature this the 7th day of Sept., 1917.

[Signed] W. T. Knight.”

If this instrument is a will, it is void, because not attested according to the statute of wills. It will be observed it has the formalities of a deed. It was acknowledged by the maker as a deed, and ivas duly recorded as such.

In determining whether an instrument is a deed or a will the controlling question is: Did the maker intend to convey any estate or interest whatever to vest before his death and upon the execution of the writing? Or, on the other hand: Did he intend that all the interest and estate in the land attempted to be conveyed should take effect only after his death? If the former, it is a deed; if the latter, a will. It is wholly immaterial whether he calls it a will or a deed, for the instrument will have operation according to its legal effect. Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Thomas v. Byrd, 112 Miss. 692, 72 So. 725; Simpson v. McGee, 112 Miss. 344, 73 So. 55, 11 A. L. R, 4; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A. L. R. 5; Kelly v. Covington, 119 Miss. 658, 81 So. 485.

In the first paragraph of this instrument the maker, W. T. Knight, attempts to convey to his two daughters “and their children after them” the remainder interest in his lands. Then in the last paragraph, following the description of the lands, he reserves to himself the use and occupation of said lands during his life (quoting from the instrument), “after which this conveyance is to go into effect and my said daughters at the time of my death are to become possessed of an indefeasible title in fee simple to all said lands with remainder interest in their children at the time of their death.”

Although the maker probably intended to reserve to. himself the use and occupation of his lands for the period of his life with remainder in his daughters to take effect before his death, the instrument plainly fails to so provide. On the contrary it provides in unmistakable terms that the interest attempted to be conveyed to his daughters shall not take effect until after his death. In other words, no interest was conveyed to his daughters which was to take effect before the death of the grantor. He parted with nothing to take effect during his lifetime; he could have at once conveyed a fee simple title to some one else. Therefore his daughters got nothing.

We hold, under the rule laid down in the .above authorities, that this instrument is a will and must fail because not executed and attested according to our statute of wills. The court below so held.

Affirmed, and remanded.