*1 431 Garrison. McLain v. 7905.] for the defendant will find then you use as plaything, thing both plaintiffs.” instruct- charge special err in refusing appellant’s the court Nor did author- sufficient was amply favor. The evidence in its a verdict ing and sustains and justifies case to the jury submission of the ize the W. 98, 58 S. Texas, Co. v. Morgan, verdict rendered. (Railway 65 S. 329, Skidmore, Texas Civ. App., 544; Co. v. Railway Rep., Texas, 421.) v. 215; Styron, Co. Railway W. Rep., error, out reversible error point of the assignments None court below affirmed. the judgment Affirmed. of error refused. Writ J. B. B. McLain et al. et Mrs. Garrison al. v. John 17, May 1905. Decided Death—Conveyance Testament. Effective on Deed deed, wit- warranty attested one of a instrument in the usual form An recorded, “to have containing the clause: acknowledged and but ness to hold after will, evidently before,” but being insufficient as a death and not pass effect, and held construed as a designed to have should be some grantor. good title on the death of the Tried below before Hill County. from the Court of District Appeal Hon. Nelson Phillips. Works, for appellant. & Derden & Killough Vaughan but providing An instrument title to land presentí, conveying should future, the vendee is, estate some time begin but land thus conveyed, into immediate go possession use and have the remain in the grantor should possession is a deed life, character, thereof is not Stats., Rev. an estate to commence in futuro. Sayles’ conveying 40; v. Mc 632; Leslie art. Chrisman v. 7 Texas Civ. Wyatt, App., 774; 378; Rep., 34 S. W. Hannig, S. W. Kinney, Rep., Carpenter Adcock, 5 Texas App., Civ. Jenkins see Hancock the above instrument As to construction to be given Butler, Texas, 804. affection, consideration love as its A written instrument reciting clauses, habendum, and warranty usual granting, containing “But of a life estate a reservation concluding and this death, before,” is a deed and not deed is take effect at my article Revised Statutes, will, Sayles’ in view especially futuro, commence in freehold estates to creation deed of permits above mentioned charges and therefore the special requested, authorities. Same error, should have been given. assignments instrument construing in holding did not err M. McLain to Catherine 1893, executed John of date January deed, as said Lou to be a Mattie McLain and Flora Appeals Reports, Yol. 39. described, estate to begin therein Faries, 22 Texas 632; Martin Stats., future. Rev. art. Sayles’ *2 540; Civ. Chrisman App., 378; Leslie v. 38 S. W. McKinney, Rep., Rep., v. 7 Wyatt, 40; Texas Civ. 34 W. v. S. App., Hannig, Carpenter Mc 774; 470; Jenkins 5 v. Adcock, v. Texas Civ. App., Lockridge . 90 Common, 234 Texas, As to involved construction to the instrument proper given suit, Butler, Texas, see v. 21 804. Hancock Wear, Smithdeal, of the trial' The action Morrow & for appellees. B. McLain which John court the instruments under holding tract land were not and H. N. claimed 403 acre McLain instruments deeds, effective as construction of the correct v. Faries, 540; mentioned. v. Texas Civ. Martin 22 App., Mathews Moses, Rep., 21 Texas 38 S. W. 496; Civ. Leslie v. App., McKinney, 378; 40; Hannig, Chrisman v. Wyatt, v. 7 Texas Civ. App., Carpenter 470; 34 Millican 744; S. W. Jenkins v. Rep., Adcock, 5 Texas Civ. App., v. Millican, Texas, 441; 793; 24 Crain, Texas, Crain 21 Epperson Mills, 19 Texas, 59 68, S. W. Rep., It intestate, that John M. McLain died appearing the tracts heirs, were his his "death he owned that before plaintiffs January, of land 11th day described in instrument dated the 1898, which is in in consideration the form of a deed McLain, love Lou affection, Catherine McLain and Mattie to Flora except following language: contains the hold, before, . said Catherine “To have and to to death to widowhood, in either event Flora McLain revert to her lifetime or Lou Mattie McLain; the said Mattie Lou daughter, heirs, McLain should without then the bodily die leaving any sons, McLain this deed is to revert John B. twomy McLain, H. H. children forever.” each, one-half and their The court erred in a deed said instrument effective as holding testamentary failing jury instruct said instrument of land and that it did not the three hundred and fourteen acres described therein. Same authorities. A deed certain lands and covenants whereby grantor conveys after his death will be construed as an in fee to take simple estate may life estate a father reserved So by implication. make a valid deed of children to take effect after gift P., 671. of himself 13th of L. & Cyc. and his wife and till then. Conn., 11 Vinson, 138; 4 Ill. Fish v. Sawyer, Vinson v. Citing 545; App., 114; 13 Marksberry, Conn., Banks, 19 Admr. v. Coley v. Coley, 275; Mich., Rep., 60 N. Martin v. W. Ky. (3 Litt), Cook, 267, Admr., 679; Dennett, 498; 40 N. Duncan H., Dennett v. v. Self's 607; Ann., Hollomon, 466; La. N. C. Hollomon v. (1 Murph.), Steel, 59; Me., 381, 10 Atl. Steel Cressey, Rep., Watson Allen, 417. de McLain, of John M. FISHER, heirs Justice. As the Chief in trespass this suit ceased, intestate, brought who died appellees Mrs. H.N. McLain and John B. and against appellants try 1905.} v. Garrison. certain Lou to recover McLain, Flora McLain and Mattie Katherine the 11th day McLain on in deeds executed John M. lands described January, 11th January, day On the appellants. each H. FT.McLain M. McLain John B. McLain and John executed to were instruments described, which deeds the lands therein conveying character, and, the trial construed to be court return a verdict of this were instructed to fact, jury view 11th Also on the B. and FT. McLain favor appellees. John H. Mrs. M. McLain executed to the appellants, John January, conveying Lou McLain a Flora McLain Mattie Katherine held to be described, which instrument the lands

them .the Katherine in favor of instructed a verdict appellants and accordingly Mattie McLain. is the of these instruments to the construction The one, in this appeal. appellants if not the only presented principal, *3 testamentary instruments mentioned are not the two contend that first as deeds deeds, operate so intended to character, and were assignment cross John M. McLain. The by by appellees Mrs. M. McLain the instrument executed John by contend that Katherine Flora McLain and Mattie McLain, Lou is also court. The two the trial character, by is not a as held and are words as follows: instruments first mentioned Texas, County of Hill. State McLain, I, John M. of the that by “Know all men these presents aforesaid, for and the consideration of Hill and the State County affection to me and secured paid and love and sum of one dollar and son, have sold McLain, conveyed, FT. my granted, be H. by paid H. FT. the said sell and unto do by grant, and these presents acres interest in four hundred and three an undivided half McLain all certain of-State land, less, of-, or of the county more in Hill County, McGee survey of the Joseph of land being part tract by follows description as follows: Texas, (Here meted and bounded or This 403 acres of land more less. containing and bounds) metes and not before. my at deed is to take with above described all premises, together and to hold “To have thereto wise any belong- and appurtenances the rights and singular forever, McLain, and and assigns and heirs H. FT. unto the said ing I do forever defend all and administrators to warrant and heirs, executors my bind hereby FT. said H. the said unto the singular and premises lawfully whomsoever every person and McLain, assigns his heirs any part same or thereof. claim or to claiming this the 11th day home in County, hand Hill my “Witness D. 1898. January, A. “John M. McLain.” of Hill. Texas, County “The State of I, John M. McLain, presents these “Know all men aforesaid, for and consideration of the of Hill and State county sum-of to me secured paid affection love and one dollar Civil—28. XXXIX. Yol. Appeals Reports, Yol. 39. B. paid by John McLain, sold and my son, follows: Have granted, conveyed, and by these do sell and presents grant, convey unto said John B. in 403 acres an one-half interest undivided land, more or less, Texas, Hill, all State county a certain tract land Hill being survey of the Jos. McGee part Texas, County, meted and bounded as follows: follows description (Here of land metes more containing acres of bounds) less. This deed is to take effect at death and not before. “To have and all hold the above described premises, together singular belonging thereto in wise rights any appurtenances unto said John B. McLain forever. assigns and his heirs and “And I do heirs, bind and administrators hereby executors warrant unto and forever defend all and singular every said John B. McLain and his heirs assigns against part whomsoever same or person or to claim the lawfully claiming thereof. “Witness hand at home in Hill this the 11th County, A. D. 1898.

January, McLain.” "John M. Katherine Flora McLain from John M. McLain to The deed Mattie Lou McLain is as follows: Texas,. of Hill. County “The State I, McLain, of men these John M. the the presents “Know aforesaid, for and in consideration of of Hill State county to me and secured to and affection paid sum of one dollar and love Mc- Mattie Lou daughter, McLain and my Katherine Flora paid do grant, these presents have sold and Lain, granted, conveyed, *4 Lou and Mattie Flora McLain unto the said Catherine sell and certain tract Texas, of all that of Hill and State county of the McLain Young Wesley of the and of land McGee being part or Jos. parcel of description as follows. follows (Here meted and bounded surveys, 54 of acres 102 acres of containing and bounds) metes land by 48 Young survey. and about acres the McGee survey is in the of tract A on the at stake marked plat commencing “Also one tract 'corner; thence to a stake for north 60 east 1786 varas 1; thence number - survey;- of the McGee a stake for corner 765 varas to south of the McGee a stake for corner west, 1344 varas to south thence survey, 884 varas to the stake marked 60 west B; north thence marked more or less. acres of land containing beginning, of A, the place and before to said Catherine not my to hold and “To have in either event widowhood, and lifetime or her McLain Flora Mattie McLain; Lou if the said Mattie my daughter, to revert to then the heirs, then any bodily leaving without die should McLain Lou John B. revert to two sons, deed is in this forever, children to each and their one-half McLain, U.H. McLain all and the rights singular together premises described above unto the said Catherine wise belonging in any thereto appurtenances hereby, above, and I do stated McLain as Lou Mattie McLain Flora forever to warrant and and administrators heirs, executors bind 1905.] McLain Garrison. Flora said Catherine unto the singular defend above, and Mattie against every person McLain Lou as stated thereof. whomsoever or to claim lawfully claiming any part the same or “Witness day in Hill this the 11th my hand at home County, A. “John M. McLain.”

January, D. 1898. of the request Each these was witnessed at the grantor instruments Collier; one witness of W. H. each by only in the acknowledged name Wells, form statute before B. E. required by notary public, 11th on the filed day" and each was for January, registration in the clerk’s on county office the 14th day January, recorded on duly the 17th in the deed records January, of Hill County. tp course, Of it is that in effect conceded be determining given instruments, the intention of maker, these as from the gathered documents, face The primary importance. evidence record is to the effect instruments that these were M. written John McLain, but were by Wells. prepared are only therefore, attested one "in They witness; view of article of the Revised Statutes, could not be established they as wills. Therefore, if probated to be are held they testamentary could they character be no given effect, and their execution a useless idle It is reasonable ceremony. maker of these suppose instruments intended to accomplish some their execution, purpose they and that be some given effect as determining fixing of the parties thereto. and the rights He framed the party instruments must have known that they wills, could not effective as of the law which requirements were necessary be observed in nature, order create documents were not com- with; and such law, it is plied provision reasonable to suppose How, familiar were with. assuming maker intended to some accomplish of these purpose instruments, execution the rule that where observing further language documents it, they should most admit strongly construed against the maker uncertainty, in cases doubt or the question is suggested, what con- struction, from the would language used, be reasonable and consistent John M. the intention of indicating McLain in the execution of these ? instruments words, “This deed is to Eliminating take death and before,” the instruments in the form practically prescribed by for what is sufficient constitute deed. statute language deed; contains all elements of a it grants and employed conveys *5 described, the interest and concludes grantee the usual clauses. The words warranty only that habendum indicate that pass present not the intention to interest are those it quoted, that maker from this called the language appears instrument intention shows evident that which as a it should have effect as a land; of we are deed or opinion that it used to language merely was the reserve an interest in lifetime that deeds only become effective disturb this at his right death. 39,- Appeals Bepokts, Yol. or free an estate 556 of the Revised Statutes provides Article or. in to commence futuro hold or inheritance made may and applied in like will. This was construed manner as conveyance, 40; court in Chrisman v. 7 Texas Wyatt, Civ. App., it an before Adcock, case of Jenkins v. had Texas Civ. App., to those in its for construction somewhat similar terms language instrument, called to construe. The in addition upon “have stated, usually contained in deeds, grantee, naming these death, and by sold to take granted, and-conveyed, effect at my Adcock,” then do B. Nancy and sell to the said presents grant, bargain death goes states, on and describes “And and further interest said land and is these my my premises court sister, Adcock, hold, B. The to have and to etc.” Nancy case construed the instrument to be a deed. 533, is Ind., Carrico, 140 The well considered ease Wilson v. under illustrates our views strongly consideration. point upon aptly ours, which similar to Indiana has a statute much very futuro. authorizes an estate be created which commence may under consideration The between the deed there strong similarity the opinion, those in controversy with the here, together pertinency us to set it out in full: induces real estate Action in to recover certain ejectment by appellant erred in assigned title thereto. error quiet A statement condensed a demurrer to sustaining of complaint. appellant’s is as follows: in the complaint the facts appear in- Bazzle Carrico was the owner “That on November one Indi- situated in County, described lands Sullivan fee of certain simple wife, Frances, executed to one Elza he and his duly that day ana. On action, recovered for the real estate to be sought Carrico a deed to wit: ‘This indenture witnesseth follows, ás said deed being Carrico, wife, County Frances Sullivan Bazzle Carrico and Carrico, of Indiana, and warrant to Elza Sullivan State of Indiana, for sum of one hundred and fifty State of County, State County, real in Sullivan dollars, following of section northeast of the northeast Indiana, quarter quarter wit: the with the seven, eight west, exception north range 31, township acres, acres, of the forty containing thirty east side acres off the -ten after the to be of none effect until The above obligation more or less. Carrico, be in and Frances then to Bazzle Carrico the said Frances whereof, the Bazzle Carrico and In witness said full force. Novem- seals, hands and this 18th hereunto set their have Carrico ber, Bazzle Carrico (seal) her Frances X Carrico (seal) mark “ Indiana,) ‘State County. Sullivan ( ss: in and for a justice me,-Benson'Usrey, peace “‘Before *6 1905.] v. Garrison. county, November, 1867, this and 18th oí came Bazzle Carrico Carrico,

Frances and acknowledged the execution of the annexed deed. hand

“‘Witness and official seal. J. P. Usrey,

“‘Benson (Seal.)’” “This deed in a days was few its execution in the recorded 1870,. recorder’s office of Indiana. On March Elzia Sullivan County, Carrico and wife in conveyed warranty the land a controversy by in appellant, for and and consideration of sum of two hundred dollars fifty and in land was ($250) this that the they provided deed conveyed life Frances Carrico. subject estate Bazzle and This was died deed also Carrico 'acknowledged and recorded. Bazzle 6, 1872, on 1892. September wife, Frances, and his on January died facts, Other not in necessary to be the determination considered that case, this are omitted. of the by parties We informed the briefs character trial court held the void in its deed that upon ground that was it denies testamentary. The learned counsel for appellant was the deed is it there by and insists that respect testamentary, and that of the grantee therein described intended was and contained subsequent clause therein questionable and en- full use by grantor as a reservation or postponement of the of the after the joyment realty until grantee de.ath in question that in grantors; after the of these the demise each force, words, was to or, enjoyment be full the complete in other clause of the use and of said land occupation provision wife, and was of Carrico controversy until after postponed hand the and then the other was to vest fully grantee. Upon do not controvert they learned counsel for the what deed, say appellee as a parties was intended by the instrument question formalities of will, not that it has all as a and concede it the evident purpose the former. But contend that intended intent of reserve the estate he until after the death to take effect the deed not convey, be be held to wife, and that hence must himself executed reason that it void, its therefore for the character, in in The instru- the construction, on wills. requirements statute accordance with this the judicial calls for a ment And of the grantor. intention must be guided seek of all consideration be deduced and arrived must we must observe adhere to its in this construction parts, under con- and clause in both the granting part that this deed rule and in the grantor most strongly against must construed sideration be the grantee. favor of should there the feudal law that a principle recognized “It was the title estate, and that freehold every a known owner always free- at common law Hence abeyance. be in should never thereto for the reason could commence future hold to the conveyance the execution from inbe abeyance the same would vest. grantee until future estate be created may freehold estate State of this the statute “Under Statutes, 1881, section futuro; Revised section to commence Appeals Bepobts, Yol. [May-, *7 Statutes, 1894; Eevised and hence the common law principle stated has been This is in the entirely above deed abrogated. statutory form, and in the part accords with the section granting provisions 2927, Revised Statutes, 1881, Statutes, 1894, and section Revised contains law, what and in are, by made conveyance, words of operative effect transfers all the in estate or lands interest of the grantor suit to the The grantee. terms and when ‘warrant,’ given “convey’ their legal to con purport indicate an intention acceptation, fully a vey thereto; estate present to the and grantee, and defend the title in no is it way or to apparent be inferred from these words that grantors intended to devise the instrument real estate in The question. deeds; and acknowledged in recorded like manner as are other we therefore fail to in recognize it was anything signifies tended to serve the of will. purpose a The what was question then arises the purpose intended to be served inapt expression, namely: ‘To be of effect until nope after the death of said Bazzle and Carrico Carrico, Frances then to be in full force.’ “It is evident that the in drafting indenture question skillfully and that it performed, thereby very closely approximates what be termed may which a ‘danger line’ judicial construction result might adjudging deed to be a nullity." “While it said in may regard to the under point consideration that the authorities on both ‘fight sides’ of the however, we find question; that in the later decisions the courts are inclined to a deed of uphold character, this a reasonable upon of all its it parts interpretation that the did not create, intend to or in other words can execute, that which must be construed and held to be void. “In written construing instruments courts do—and frequently prop- an erly, too—give to expression different from that which meaning bears in order ordinarily sense into it and make import it speak which, upon whole, inspection the parties intended that really it should. “We find that there is no ambiguity clause of the granting bar, deed in the case at consequently, are left free to effectuate intention of the grantor expressed the subsequent clause or con- had, dition. grantors we have seen words, by operative clear an interest or fee significant, conveyed in praesenti to the grantee; done this could having not, cold;’ legal parlance ‘blow hot and or, words, in other reserve or take back that which had they the granted. “In Williams, the case Owen v. 114 Ind., was in the form of a deed contest and in clause, the granting by its terms, ‘did and warrant to Williams after my decease before.’ This court held that ‘after phrase, my decease and not before,’ make the did not but testamentary, was meant operated to show that use and grantee’s enjoyment would not realty under the deed until after the death of begin grantor. Cates, Ind., 272, “In the of Cates v. case the deed therein in form, was also controversy statutory contained the following Cates, reservation: ‘The Prior hereby expressly excepts reserves from this all the estate in said grant lands, the use, occupa- tion, rents thereof unto himself proceeds his during natural life.’ v. Garrison. 1905.1 case, This court in that a full review and upon many consideration authorities involved, upon held such an instrument must be the full construed as conveying interest in the real present enjoyment which was postponed until after the grantor’s death. White, “In case of Administrator, Ga., 154, cited Hopkins, Cates, in Cates v. the deed supra, contained this clause or condition: ‘The title to the above described tract of land to still remain the said Lemuel his Hopkins (grantor) lifetime, death to immediately vest in the It said Lewis Hopkins (grantee).’ was held Supreme Court absolute Georgia that case that an was, that it grantee; present passed *8 land, interest in the and took effect execution and after its immediately, it was irrevocable by the grantor. “In Graves Atwood, v. 52 512, the follow Conn., the deed contained ing: ‘The condition of this deed is such I reserve all of hereby my right, title and interest the aforesaid described pieces with all the buildings thereon life.’ was held during my natural It the by court that this condition, grant, read in the the light be as a interpretated reservation of the same measure of use thereafter life, as for tenants as the grantor had before it as owner. enjoyed “In Webster Webster, v. 33 H.,N. 18, the ‘Reserving condition was: all the title rights, land, etc., and interest in and unto the named above for and during my natural life.’ “In Nicks, Bunch Ark., v. 50 367, the deed contained the following clause: ‘And the deed shall into full go force and effect at my death.’ The court held this one, deed to be a valid conveying present grantee the with the of possession right the use until postponed death. grantor’s Brown, “In Wyman Me., 139, the deed was as follows: ‘This deed to take effect during my lifetime—to effect and take be force from and after death.’ This was my held to be valid. Me., “In the case of Abbott v. 298, Holway, the instrument con this clause: ‘This deed is tained not to take effect and as a operate until decease.’ This was conveyance held to be a good and valid conveyance. Sebree, Ill., “In Shackelton 616, the deed contained covenants and also this clause: ‘This warranty, deed not to take effect until death—not recorded until be after after instrument was held decease.’" This as a operative not intended testa as a authorities, These mentary least, property. them, disposition most cited with this court in approval by Cates, were Cates v. supra. rule in the interpretation instrument, “It a settled is an where ambiguous, of more susceptible the terms than one employed court will consider the acts of subsequent the the meaning, ascertain how parties it, understood and as what construction indicating Ind., it. G. Olds (H. Wagon Works they placed upon Coombs, cited; Lescher, Ind., Lyles 382.) and cases there “However, while it is to resort to this rule to show a proper practical still, all, the construction after intention must parties, be deter- from of the instrument. mined the words Appeals Reports, Vol. 39. manner in “The which this deed was treated this by the parties case, as it for appears, briefly as follows: It was in 1867 executed a valuable consideration and In life- recorded. duly time of the grantor, consideration, sold and a valuable the grantee estate, conveyed land to to the life appellant subject former. This also recorded. Bazzle died Carrico two Frances, and over years after appellant. wife, in 1892, died twelve years conveyance, after this second nearly not in until disclosed, her so far as deed called death, it is was this These question. acts of the deed subsequent suffering the grantor, to be placed upon record, sold and to be permitting land their conveyed life grantee subject to their appellant, are incompatible with the contention of and hostile appellee now theory advanced and advocated him. “In Broom’s star Maxims, 540, in fundamental page .translating maxim of the law it is ‘A said: liberal construction should placed written so upon instruments as to them possible, uphold carry into effect intention of reason parties.’ Applying cited, laid down rule authorities principle guided by of construction that the clause in construed most controversy must be favorable to the we can grantee, intended not hold grantors void, obligation that decide that was to null and but we are constrained to estate to present the real interest was, clause, full of which grantee, enjoyment subsequent intended to be until postponed grantors. after the death both the" so into effect the and we By fail to holding carry parties, *9 this wherein construction works an recognize injury injustice think, This will out the anyone. carry we interpretation, simply of Carrico and his wife of to the give protection rights on the faith of The con- acquired their deed and their acts. purchaser clusion we have reached renders it unnecessary repug- consider Howevér, any, between the and the

nancy, existing grant exception. when such does exist well void. it is settled that the latter is See Cates, in Cates v. supra. cases cited therefore follows that “It erred the demurrer sustaining complaint.” to the ‘ We have reached the conclusion the trial that court erred the two construction deeds first mentioned in the placed upon opinion, executed to correctly but construed the instrument Catherine Flora McLain. of McLain and Mattie Lou We all that three opinion nature, instruments are not of a. in- were deeds. In view of the fact there in the tended as question some of these instruments, case as to the we are delivery not prepared and render. reverse will Therefore, be reversed and remanded. judgment the cause

Reversed and remanded. OPINION ON REHEARING.' motion„for desire to full the rehearing, In state overruling So. Moore, decided in 1895 Rep., Supreme of Abney case 1905.] Garrison. ,13th Walker, of of Feburarjq Court Alabama. On the William Chilton, Alabama, of of as the ancestor county resident of the State con- vendee, of his a deed which acknowledged, executed was properly continued certain lands. Walker after the of deed

veying execution ownership possession the land until his acts death, exercising land same, defendants, over and the on the vendees, that is his resided him Walker Avith until some time in Avhen said time January, died, and posses- since death said vendees have been in continuous sion. Moore, suit brought the administrator Walker’s others, Walker, Martha in the deed. The land described Abney the vendees of terms is as follows: Walker, men I, “Know all these a resident William presents Alabama, Chilton and for and in consideration county State of the natural affection and love I have and bear unto children my named, hereinafter besides to me in hand the further sum ten dollars children, said wit paid by my the defendants present (naming suit), whereof is receipt hereby granted, have acknowledged, given, sold and bargained, these do conveyed, give, grant, presents sell and bargain, convey, children, unto said their my named heirs assigns, my rights, title and interest and estate to and in the follow- lands, described ing lying said of Chilton and State county Alabama, to wit: follows a lands sued (here description for) have and to hold unto said my children, above named their heirs and with all and assigns, together thereunto the tenements singular and appurtenances or in same, manner thereto belonging, to the pertaining it is always, and provided is not to take understood, expressly until death, after my and that at death the title described lands is foregoing to vest immediately In children. same I testimony have hereunto set hand and seal, this the 13th A. D. 1880. February, (Signed) William Walker. (Seal.)” The contention of the administrator was that the deed was testa in character. Martha who mentary Abney and the vendees the deed Walker, the children of were William contended that the instrument was that, seems, was the before sole the Supreme Court. As the of that court so states our opinion satisfactorily views as to the construction that should properly given us, we full: before set it out in

“The instrument to be construed—Avhichwill be set out in the report in form as a conveyance of the concludes with case—perfect the fol- understood, ‘Provided and it is always, loAving provision: expressly is not to take death, effect until after conveyance that at death the title to the foregoing lands is to described vest children.’ These said are the words immediately my only employed idea to the that it is a Avill suggest and not a deed. whether an instrument be a deed or Avill, ‘In determining the main is: the maker intend any Did estate or to interest whatever question vest before death, and the Or, his before execution the on paper? hand, he did intend that the interest and the other estate should take deed; latter, former, If the it is a his death? only effect if the .442 Appeals Reports, Yol. 39. a will. And is it immaterial whether deed; he calls it a will or a instrument will have operation its to effect.” according legal (Gillham v. Mustin, Ala., 366; Davis, Ala., 345, Trawick v. 5 South., 83.) Another rule of is, construction in on such cases that when the paper its face is equivocal, the is its as testa presumption operating mentary, unless it is made to clearly it was executed animo appear iestandi, or intended being by the maker as a operate posthumous to disposition of his Wills, estate. Rice, Ala., 218; v. (Rice Redf. 170-172.) When the can have paper no effect as a court will incline to will, a regard it as if in that character can be given to the evident maker, intent of the which is the of con last trolling importance. (Trawick Ala., v. Davis, Hall, supra; Sharp 114, 5 South., 497; Adams Ala., are Broughton, 13 Wills 731.) ambulatory during the life of testator, are necessarily revoca ble; but deeds take effect by and" delivery, operative binding during life of grantor. Smith, As was in Crocker said Ala., 297, 10 South., 258: ‘The intention of maker is the ultimate object of the whether it inquiry, was ambulatory intended revocable, or to rights create and interests at the time of the execution which are If revoked, irrevocable. the instrument can not be defeated impaired by deed; the act it is a title -or interest is re on in him dependent the death of the testator—if sides the unqualified is a will.' power revocation—it (Jordan Jordan, 65 Ala., In the before as fee us, case have a 306.) perfect deed as simple can be -drawn from land grantor to. grantees, and the condition its only prescribed upon operation pre sentí is the one we have It was executed quoted above. without witness, attestation a so as a must any make it will event. We presume the a maker knew that a will could not executed without witness, and this is fact of a when in very importance, controlling tention in his execution the instrument sought. Construing intentions he his acts, known, must have ‘that an acknowledgment before a form, due to make the notary public" was sufficient paper a deed, so far execution, as to its related that this was not sufficient for its execution as a will. legal delivered the instrument The grantor children; he executed it his re grantees, who were he served in of revocation; it no to live he continued on the lands power children, life, his them and control of his possession

never made other disposition them. these circumstances Hnder we must he hold that when provided conveyance his take death and his death ‘the effect until after that at title to the lands is vest immediately he in foregoing children/ tended no more than to reserve to himself the use and enjoyment lifetime, and that property during operation gift, death, concerned, so far was to be until his possession postponed remain, own, was to not his but as his to which time up intention, why If this was not his should he for -use and enjoyment. and execute a to make which paper have to the trouble care gone form, in its as an con body, perfect absolute he called such usually employed purpose—and as is veyance—such will; and have unnecessary making acknowledged is unusual and *11 Brewing Antonio San Assn. v. Brents. 1905.1 in the manner most usually deed, never make it a employed done, and a effectually generally ineffectual, known to make it will; and have delivered it to the grantees—the necessary usual mode of deed, a and not usual or perfecting to make will necessary operative—and he have reserved no power should revocation—why this, have done all so like the conduct one a con- make intending veyance if his was presentí, until pass after his death? He had used the words already necessary proper absolute, to make an vested title children, by his when he provided after conveyance should effect until not take his death when the title vest, meant, should immediately he necessarily if we are to effect to what give he use word title in doing—to this connection as synonym at his death should possession, Such a pass grantees. construction as have shown comports, with the tenor of general and is sanctioned reason and other authority. construction would either Any instrument, defeat the will, as a avoided, deed or a result which should be can if it be upheld Ala., 126; as either. Mustin, (Golding Golding, Elmore Ala., 313; Mobile, Bank 42 Ala., 591; Burkham, McGuire v. Hall Ala., 353; and authorities cited supra.) as adminis- plaintiff trator of the deceased right had no this case. recovery Johnson, The creditor entitled to note out payment must seek relief in forum.” another rehearing Motion for is overruled. Overruled. writ of for error dismissed for want of

Application jurisdiction. Brewing Antonio Association W. R. San Brents. May

Decided 1905. Added—Construction. 1.—Contract—lease—Clause lease, It the terms of a clause added to would seem contract of signed parties, signature the lessor the instrument and before lessee, sistent therewith. provisions writing prevail originally should over drawn incon- Business—Adoption Option of local —lease—Saloon law. building that the let for A lease which-recited purpose of conduet- saloon, “and ing and any shall not used for a first-class disreputable purpose,” providing “be purpose sublet for other saloon, conducting a than for without the consent of writing,” the landlord in use saloon purposes did not limit lessee to nor release him from liability Local adoption prohibition for after the rent of that business under the Option Law. Tenant—Breach—Damages—Findings. 3. —landlord Findings damages the court breach on of contract of lease tenant recovery theory considered and measure sustain amount on held was the difference between the rent contracted for and the rental value term. unexpired for the District Court of Grayson from the Tried be- below County. Appeal Pearson. J. M. fore Hon.