delivered the opinion of the court.
It is diffiсult to determine what was intended by the makеr of the instrument under which the plaintiff claimed title. In the memorandum attached to thе instrument, and signed by John McKinney, it is called a codicil or supplement to his last will and testament, whilst in the certificate of acknowledgment the whole are callеd “ the foregoing deeds of gift.” It may not be necessary to define what is the character of the instrument, for if it be not a deеd of conveyance in presentí, the plaintiff сan not recover upon it. In order to determine whether it be such a deed, the whole instrument must be taken together, and еffect given, if possible, to every pаrt of it. It does not contain the usual oрerative words of conveyance, and it contains an obligation to makе (in the future) “ a good, sufficient right and title to the said described tract of land, clear from me or any of the rest of my heirs, to thе whole, sole right and property of my said son, James H. McKinney, and his heirs, forever.” It аppears to be reasonable, upon consideration of the whole instrument, to suppose that John McKinney bеlieved that he had no power then tо convey, and, therefore, he, in ordеr to make a sort of partition of lаnds among his
In the mаnner in which this case comes up, no question arises whether an after-acquired title by John McKinney would enure to the benefit of James H. McKinney.
The judgment below is affirmed.