89 P. 142 | Or. | 1907
Lead Opinion
delivered the opinion of the court.
This case turns upon the questions whether the deed, at the time of its execution, was delivered as a deed to John Sapping-field, and whether it conveyed any estate or interest presently to the grantee. Plaintiff and her husband evidently sought to arrange for the disposition of their property after their death. The whole transaction clearly discloses this, and there was no undue advantage taken of plaintiff in what was done. She evidently understood the nature of the transaction. But it was evidently the intention of both plaintiff and her husband that neither of the instruments should be operative until after the death of the maker. It is evident that at that time both thought that plaintiff was liable to die first, and she wanted her husband to have the benefit of her property as long as he lived, and the will of the husband protected the plaintiff to the same extent. The indorsement on the envelope in which the papers were left at the bank was not directed by them or either of them, and plaintiff is not bound by it. Plaintiff and her husband had the same purpose in this transaction, viz., that their property at their death should go to their children equally, taking into consideration prior advances to some of them. The heirs of the one were the heirs of the other, and this form of disposing of the property seems to have been adopted as preferable to two wills, and evidently from the whole transaction it was intended that both instruments should be subject to recall.
“This deed is made with the full understanding and upon the condition that the same shall take effect from and after the death of the said grantor.”
If the deed purported to convey or pass to the grantee a present interest in the property and the deed was delivered, then the deed was operative at once and beyond the recall of the-grantor, notwithstanding the reservation of a life estate; but, where the instrument does not pass any present interest to the grantee, its effect is testamentary, and not that of a conveyance.
There are a few cases holding that such a deed is operative as such, and irrevocable even though it does not convey a present interest. Wilson v. Carrico, 140 Ind. 533 (40 N. E. 50: 49 Am. St. Rep. 213). construes such a deed as conveying an estate to commence in futuro; such an estate being expressly authorized by the Indiana statutes: Rev. St. Ind. 1881, § 2959. In Shackleton v. Sebree, 86 Ill. 616, 621, the conveyance is sustained as a deed on the theory of a covenant of the grantor to stand seized to the use of the grantee, and Abbott v. Holway, 72 Me. 307, is to the same effect. In Georgia the cases are very conflicting. Sperber v. Balster, 66 Ga. 317, holds such a deed conveys no present title and is testamentary, and in West v. Wright, 115 Ga. 277 (41 S. E. 602). the court holds to the contrary, although
But the greater weight of the authorities hold that, in determining whether such an instrument is a deed or a will, the main question is: Did the maker intend to convey any estate or interest whatever to vest before his death and upon the execution of the paper, or, upon the other hand, did he intend that all the interest or estate should take effect only at his death? If the former, it is a deed; if the latter, it is testamentary and revocable. The language limiting the taking effect of the deed similar to that in the ease here and as quoted from Turner v. Scott, 51 Pa. 126, has been held in the following cases to convey no present interest, but rendered the instrument testamentary and therefore revocable: Gillham Sisters v. Mustin, 42 Ala. 365; Leaver v. Gauss, 62 Iowa, 314 (17 N. W. 522); Hazelton v. Reed, 46 Kan. 73 (26 Pac. 450: 26 Am. St. Kqp. 86); Bigley v. Souvey, 45 Mich. 370 (8 N. W. 98); Conrad v. Douglas, 59 Minn. 498 (61 N. W. 673); Cunningham v. Davis, 62 Miss. 366; Murphy v. Gabbert, 166 Mo. 596 (66 S. W. 536: 89 Am. St. Rep. 733) ; Pinkham v. Pinkham, 55 Neb. 729 (76 N. W.
The decree of the lower court will therefore be affirmed.
Affirmed.
Decided 21 May, 1907.
Rehearing
On Motion for Rehearing.
delivered the opinion of the court.
Tn Gall v. Gall, 19 N. Y. Supp. 332 (64 Hun, 600), relating