62 Iowa 314 | Iowa | 1883
The instrument purports to have been executed in consideration of love and affection. The answer avers that it was executed in consideration of the payment by the
We have to say, however, that we do not see bow we can give tbe instrument tbe effect claimed, without contravening one of its express provisions. It declares that it is agreed “that tbe grantee shall have no interest in said premises as long as tbe grantors or either of them shall live.” The defendant asks us to bold that be has now an interest in tbe premises.
We do not forget that the statute provides that “estates may be created to commence at a future day.” Code, § 1933. But we have to say that any language employed by tbe grantor, which would be sufficient to create an estate to commence at a future day, would, in tbe nature of the case, give a present interest in tbe property. Tbe estate would stand created, and tbe enjoyment postponed. A declaration that tbe grantee takes no interest during tbe life of the grantor is equivalent, we think, to a declaration that no estate is created. Tbe instrument, it is true, evinces an intention favorable to tbe grantee, but that intention is in substance only testamentary, and is,, of course, subject to revocation, if indeed a revocation is needed to prevent it from becoming operative.
Tbe object of tbe defendant’s averment that a valuable consideration passed, was to give tbe instrument a present operation as binding the property. It was of no consequence in any other respect. If tbe court below bad held that it was proper to plead and prove such fact, it would have held virtually
We can conceive that a valuable consideration might pass as an inducement to the person receiving it to make a devise. If a devise in form should be made under such inducement, the instrument by which it should be made would still be testamentary, and, being such, would be revocable.
We think that the court below did not err.
Affirmed.