| Ala. | Jan 15, 1851
The bill of exceptions was prepared probably in haste. It is so defective that I think we cannot act on it
One of the assignments of error is this, that the Probate Court, erred in admitting the instrument to probate as the last will and testament of James Thompson. Now, if the instrument on its face shows conclusively that it was a deed and not a will, then this assignment of error must be sustained. When instruments of the kind can have no effect as deeds, but may operate as wills, it is the strong inclination of the courts to take them as wills, so that the party’s objects may be accomplished. But no such reasoning can apply to tins case, because the instrument is effectual as a deed and in fact precludes the possibility of its operating as a testamentary writing. A will must take effect after the death of the testator; this is disputed by no one: and I believe it has not been directly denied in any of the cases, that an instrument founded on a valuable consideration, in form a deed executed by both parties, and as such capable of full effect, and manifestly intended to eonvey a beneficial interest to the grantee, to take effect and be enjoyed in the grantor’s life-time, must be regarded by the courts as a deed and not as a will. That is the case before us. The doctrine was well stated in Habergham, v. Vincent, 2 Ves. jr. 230, by Mr. Justice Buller, that “ the cases have established, that an instrument in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will. The cases for that are both at law and in equity; and in one of them there were express words of immediate grant, and a consideration to support it as a grant; but as upon the whole the intention was it should have a future operation after death, it was considered as a will.” If some few cases have gone further than this,' they are of doubtful .authority, as the case of the Attorney General v. Jones, 3 Price, 408, but more fully stated in 1 Jarm. on Wills, 15 ; or they rest upon special circumstances, upon which alone they can be supported, consistently with the admitted rule, that an instrument cannot be a will, if it is to take effect in the life-time of the maker. It may be collected from a variety of cases that one and the same instrument cannot be both a will and a deed. Then, what is the case at bar 1 Abraham Johnson had become James Thompson’s surety in a large amount, and bound himself to be his surety in
Among other trusts declared by the deed, was that of paying the debts to Johnson himself out of the estate conveyed, and a power of sale was given him. A family settlement of the residue after the death of the grantor is provided for, and the instrument in several places assumes a testamentary character; it disposes of the residue after his death, as just mentioned; it speaks of his age and infirmities and appoints Mr. Johnson his executor. It is clear that Mr. Thompson intended and undertook more than he could legally accomplish; for he had already made a deed and conveyed to the grantee a present interest in the property, Avith the clear legal title, and throughout the instrument Mr, Thompson’s intention that it should take effect in his life-time appears. Bonds in his name were to be executed by Mr. Johnson, who was also to furnish him a support out of the estate. It was an act inter vivos obviously, and not a will. It Avas not the intention or the effect of the instrument to postpone Mr. Johnson’s indemnity as long as the grantor might live, Ayhich might have been ten or fifteen years or more. The instrument in truth, could have had no effect as a will, in respect of the lands, for the want of the necessary number of AA’itnesses.
Let the decree of the Probate Court be reversed.