95 Ky. 346 | Ky. Ct. App. | 1894
delivered the opinion of the court.
The sole question to be determined on this appeal is whether the following instrument is a deed or a will:
“.This deed of conveyance made and entered into this 6th day of April, 1891, by and between Austin Rawlings, of Fleming County, Ky., of the first part, and Thomas R. McRoberts, William McRoberts, John McRoberts, James McRoberts and George McRoberts, of Fleming County, Ky., of the second part, witnesseth: That whereas Austin»Rawlings, a bachelor now advanced in years, has numerous kinspeople; and whereas, in view of theuneer
“ Signed: A. Rawlings.
“ Attest: J ames McCreary.”
This instrument was signed and acknowledged by the grantor before James McCreary, the clerk of the Fleming County Court, who had also witnessed the signature of the grantor, and it was thereupon recorded in that office.
The contention of the appellants, who were the plaintiffs below, is that, although the document is couched in the form of a deed, and has the usual words of conveyance, yet it is, in fact, a testamentary disposition of, the property described, and hence a will. They sue for the land sought to be conveyed to the appellees, because the writing as a will is not effective through lack of proper .attestation under the statute. It is, of course, true that
Here we have grantor and grantee and the ordinary words operative of conveyance; we have the thing granted, the consideration expressed, the execution, including signing, attestation and acknowledgment, delivery, acceptance and registration.
As Lord Coke would put it, we have the premises, habendum, tenendum, reddendum, condition, warranty and covenants.
Rut with all this, if the instrument have no present, operation, if intended to vest no present interest, but only appoints what is to bo done after the death of the maker, it is a testamentary instrument. It seems to us, however, that besides the fact that the form of the writing shows the intention of the grantor to make an ordinary deed, with possession postponed until after his death, the significant fact that the instrument was to be put to record, is substantially conclusive of the point involved. This shows its irrevocable nature. “ This conveyance to be put to record, but not to take efiect so as to give possession until after my death ” is the language. And then what? Not that the grantees are then to own the lands, or take the lands. They are made the owners by the instrument, but they are to divide what is already theirs. It seems to us that if the express words of the grant are to control, the instrument must be construed to be a conveyance with possession of the land conveyed postponed until after the death of the grantor; If a will, then it was revocable, and the provision that it was to go to
The language “to take effect however and to go into effect on and after death ” is supposed by counsel for the appellants to be conclusive of the question. But it will be observed that it is not said that the vmtwg is to take effect or go into effect on and after death! The words of the grant, those which are operative of conveyance, are effective immediately. They are in the present tense — the grantor “hereby aliens, sells, and conveys,” etc. — but the
It is not true, as so earnestly argued by counsel, that in positive and unequivocal terms, the deed was not to take effect or go into effect until on and after death. It was the possession merely, the actual division and distribution, that was thus postponed. No inferences arising out of the gifts of the personalty as made in the deed can be allowed to overreach the clear-terms of the grant of the real estate, no questions respecting the personal property being before us.
Numerous cases are referred to in which certain writings are held to be wills rather than deeds; the underlying principles being the same in all of them. By like energy, no doubt, as many instances might be found where the instument has been held to bo a deed, rather than a will. Cases are useful in determining questions like the one before us only as they illustrate the principles involved. It would be unprofitable to discuss them or distinguish them from the case under consideration.
"We have examined them and find them merely declaratory of the well-known distinction between wills and deeds. They throw no light on the intention of Austin Rawlings in making the deed of April, 1891.
The judgment dismissing the petition and upholding the writing in contest as a deed is affirmed,