70 So. 113 | Ala. | 1915
Complainant in the court below, appellants here, by this bill filed under the statute authorizing suits in equity to settle the title to lands and to clear up all doubts or disputes concerning the same, sought to remove the instrument in dispute as an obstacle between them and their inheritance of the land therein described. Complainants are the collateral heirs of the maker of the instrument, wlm left no- lineal descendants. Their contention is that the instrument was intended to operate in praesenti as a conveyance of a future interest in the land, that the land which it purports to convey was the grantor’s homestead at the time, and that it was and is a nullity, for the reason that grantor’s wife did not join in its execution. The chancellor, holding the instrument to be a will, dismissed the bill. Hence this appeal.
This instrument has been drawn in the form of a deed; but upon its face it is not entirely clear whether
We have spoken of the instrument as executed in 1893. The last figure indicating this date has evidently been changed, both in the subscribing clause of the instrument and in the maker’s acknowledgment before a justice of the peace. There was, however, no effort to' conceal the fact that a change was made, though there may be some doubt as to just what the change was. Considing the evidence on this point, we conclude that the
On our latest consideration of the general subject here involved, Somerville, J., citing many cases of our own, and many besides from other jurisdictions, remarked that, while there seemed to be a substantial uniformity of opinion as to the general principles to be applied in such cases, the cases themselves exhibited the utmost contrariety in the particular conclusions reached. — Phillips v. Phillips, 186 Ala. 545, 65 South. 49. The court in that case, refusing to follow a dictum to the contrary in Trawisck v. Davis, 85 Ala. 343, 5 South. 83, held that an instrument, constituting in all other respects a formal deed, acknowledged, delivered, and recorded within a short time of the recited date of its execution, was not converted into a will by the addition of the words, “This deed is not to take [effect] until after my death.” The decision in that case (Phillips v. Phillips) was placed specifically upon the authority of Abney v. Moore, 106 Ala. 131, 18 South. 60, and in both of them the court had before it the fact only of an instrument and the fact of its delivery as a presently operative conveyance very shortly after execution. By reference to the face of the instrument here under consideration, which we may concede to be ambiguous, though of itself it looks rather persuasively towards a conclusion in favor of testamentary character, and the extraneous
It results that the decree dismissing the bill should be affirmed.