47 So. 1007 | Ala. | 1908
— The bill purports to be by a remainderman against the grantees of a life tenant, and seeks the intervention of the court of equity to prevent waste and decay of the corpus of the estate. The real estate in question was held hy William V. Metcalf at the time of his death; and his heirs at law executed the conveyance exhibited with the bill to Catherine Sims, commonly called Ida Ghaham. Therein this expression appears: “That for and in consideration of the sum of five dollars to each of us in hand paid by Catherine Sims, commonly known as Ida Graham, and in further consideration of a promise by the said Catherine Sims to make and execute her last will and testament bequeathing and devising her property, real and personal, to John Met-calf, Jr. " * It appears from the bill that Catherine Sims was living when the bill was filed, but that she had conveyed the real estate described in the exhibited deed to the respondents Noble.
It appears from the conveyance, the important feature of which we have quoted, that no life estate or equitable interest' in prsesenti in the complainant, Metcalf, to or in the real property described in the deed, was created or vested by the instrument. The whole meaning of the stated consideration, .aside from the $5 mentioned, was that in futuro the grantee would make a will devising and bequeathing her property to John Met-calf, Jr. This is made perfectly certain by the employment of the word “Promise,” which, as used, denoted only a future action, or an assurance of future action. Employing that term (promise) and expressly defining its assurance as a consideration’ for the conveyance, the deed cannot be read otherwise than that “I will during
If our interpretation is correct, Bolman v. Overall, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107, is, we think an authority in point. After stating the principle upon which courts of equity assume to enforce rights arising from otherwise valid agreements to make wills, which is effected by the imposition of a trust in favor of the promisee, it is said : “It is in the nature of a covenant to stand seised to the nse of the promisee, as if the promisor had agreed to retain a life estate in the property, Avith remainder to the promisee in the event the promisor OAvns it at the time of his death, but with full power on the part of the promisor to make any bona fide disposition of it during his life to another, otherwise than by will. The power to make such a will having been renounced, the attempt to exercise it is deemed a fraud.
Reversed and rendered.