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APPEAL by plaintiffs from a judgment of the Circuit Court for McDonald County (McNatt, J.) in their favor in part only in an action brought to ascertain and determine the title and interest of the parties in certain land. Affirmed.

The facts are stated in the opinion of the court.
Messrs. M. E. Benton and Horace
Ruark for appellants.

Mr. O. L. Cravens for respondents. Walker, J., delivered the opinion of the court:

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This is an action under § 2535, Rev. Stat. 1909, to ascertain, define, and adjudge the title and interest of the parties thereto in certain lands in McDonald county, described in the petition. The court below found for the plaintiffs as to part of the lands and for the defendants as to the remainder. From this judgment plaintiffs appeal.

Samuel Ledford is the common source of title under whom all the parties claim. In March, 1909, he died intestate, leaving his widow, Nancy, and ten children surviving him. The widow died before the institution of this suit. The parties plaintiff and defendant constitute eight of these children, two of the same not having been made parties hereto. The plaintiffs each claim title by inheritance to one undivided one tenth of the lands in question. The defendants claim to own the fee in the lands by virtue of a deed executed and delivered to them by Samuel Ledford and his wife in April, 1904. This instrument is in the ordinary form of a warranty deed. Samuel Ledford and wife, Nancy, are the grantors, Mary and Ester Ledford (the defendants) are the grantees, and the consideration is $1. This limitation in the deed follows the description of the lands: "This deed is made with the understanding that the aforesaid Samuel Ledford and Nancy Ledford shall have all

controlling power of the abovelifetime, and at their death then described premises during their the title is to pass to parties of the second part."

Plaintiffs contend that these words render the instrument testamentary in character, and hence ineffectual to convey title as a deed. Defendants claim that the instrument passed title, and that they are the owners in fee of the lands. The controversy, therefore, demands a determination as to the character, and, as a consequence, the effect, of the said instrument.

For a complete understanding of the ruling of the trial court it is pertinent to say that it found for the defendants as to all the lands in the deed in question sufficiently described to enable it to be located. As to the remainder, the fee not having passed, on account of the imperfect description, the finding was for plaintiffs.

I. Preliminary to a consideration of the foregoing sole material issue herein, we advert, in passing, to respondents' complaint, not unfounded, as to the insufficiency of appellants' abstract. While it presents the entries from

Appeal-meager the record proper abstractin a somewhat con- sufficiency. fused and meager manner, enough appears to enable the appellate court, after much labor which might have been obviated by a compliance with our rule 13 (105 Mo. iv., 169 S. W. ix.), to secure an understanding of the points presented for decision. This will suffice to authorize a review of the case upon the merits.

(— Mo. —, 177 S. W. 302.)

V.

II. The instrument in question, omitting the words of limitation, possesses all the essentials of a conveyance of real estate; viz., competent parties, sufficient subject-matter or property conveyed, a valid consideration, which, though nominal, will not of itself invalidate the transfer (Weissenfels v. Cable, 208 Mo. 515, 106 S. W. 1028; Wood v. Broadley, 76 Mo. 23, 43 Am. Rep. 754; Morriso Philliber, 30 Mo. 145), the use of printed or written form, apt and proper words of conveyance necessary to show an intention to convey, followed by a formal signing, execution, and delivery to the grantees (2 Bl. Com. pp. 296-308; 13 Cyc. 526-573). In the presence of these requisites of a deed, in order to give the instrument a testamentary character, it will be necessary for the words of limitation to clearly indicate an intention on the part of the grantors not to pass a present irrevocable interest in the property upon the execution and delivery by them of the writing to the grantees.

While the added words may not of themselves prove infallible guides to determine the purpose of the instrument, if in ordinary use and of well-known meaning, although, as in this case, the grantors may be illiterate, and the words used those of the draftsman, they may well serve, when taken in connection with all other parts of the writing, to indicate the meaning and purpose of the grantors in using same. The use, therefore, of the words, "This deed is made," etc., in the limitation, authorizes the conclusion that the word "deed" is used in its plain, ordinary sense as a writing executed and delivered by which real estate is conveyed. Lockridge v. McCommon, 90 Tex. 238, 38 S. W. 33. If it meant other than this, the words following should so indicate. They are: "That the aforesaid (grantors named) shall have all controlling power of the above-described premises during their lifetime." In the

absence of any reservation, implied or expressed, against the vesting of the interest in the grantees upon the execution and delivery of the instrument, the words last quoted may reasonably be held to preserve in the grantors the right to use and enjoy the property during their lives. The language employed does not admit of a more extended meaning. The closing phrase of the limitation provides that "at their (grantors') death the title is to pass to the parties of the second part (the grantees)." The word "title" may be used synonymously with ownership or the right to possession, dependent upon the context. Lord Coke, who expounded the law with lucidity and learning, but administered it, especially in state cases, with a spirit of tyranny and oppression savoring of the Code of Draco, said that "a title was that means whereby the owner of lands hath the right to the possession of his property." 2 Co. Litt. 345. Down the long line of later judicial rulings we find like precedents authorizing the use of the word to indicate the right to possession (Chapman v. Dougherty, 87 Mo. loc. cit. 620, 56 Am. Rep. 469; Dunster v. Kelly, 110 N. Y. 558, 18 N. E. 361; Campfield v. Johnson, 21 N. J. L. 83), or an interest which is the evidence of a right (Pratt v. Fountain, 73 Ga. 261). Under these authorities, and impelled by reason, when all of the instrument is construed together, we are constrained to hold that the effect after word "title," as employed in the limitation, means the right to possession; any other construction would render the word meaningless, because, the ownership having become vested in the grantees upon the execution and delivery of the instrument to them, the only purpose of the words of limitation was to fix the time when their right to the possession of the property would begin. Thus construed, the words of limitation are in harmony with the remainder of

Deed-to take

death-effect.

the instrument, and indicate the intention of the grantors to create a present interest or estate in the grantees, but to defer the enjoyment of same by the latter until the death of the grantors. This construction does not militate against, but accords in principle with, the rulings of this court upon this subject (Sims v. Brown, 252 Mo. 58, 158 S. W. 624; O'Day v. Meadows, 194 Mo. loc. cit. 615, 112 Am. St. Rep. 542, 92 S. W. 637; Dozier v. Toalson, 180 Mo. 546, 103 Am. St. Rep. 586, 79 S. W. 420; Christ v. Kuehne, 172 Mo. 118, 72 S. W. 537) to the effect that, in determining whether an instrument is a deed or a will, the distinction should be preserved that, in the former, the grantor irrevocably passes the title at the time of the execution and delivery of the instrument, while in the latter the title is reserved in the maker, and the instrument may be revoked at his will, and become operative only upon his death. Other cases announce the same general rule, but dissimilarity in the facts and in the language employed from that in the instant case authorized the court to hold the instruments there under review testamentary in character. For example: In Terry v. Glover, 235 Mo. 545, 139 S. W. 337, the instrument provided that it was not to take effect until after the death of the grantor, and there was no delivery. The same provision as that in the Terry Case is contained in Givens v. Ott, 222 Mo. 395, 121 S. W. 23, in which there was likewise no delivery. In Aldridge v. Aldridge,

202 Mo. 565; 101 S. W. 42, the language employed was held to constitute a gift, and not a present transfer of the grantor's interest, and hence not a deed. In Griffin v. McIntosh, 176 Mo. 392, 75 S. W. 677, there was no delivery, and it was held that the words employed indicated that the instrument was not to become operative until after the death of the grantors. In Murphy v. Gabbert, 166 Mo. 596, 89 Am. St. Rep. 733, 66 S. W. 536, the instrument expressly recited that the deed was not to become effective to transfer the interest of the grantor until her death. These cases are readily distinguishable from the case at bar, and hence do not sustain appellants' contention. The judgment of the trial court is affirmed.

Brown, J., concurs.

Faris, P. J., dubitante.

NOTE.

The effect on the validity and character of an instrument in form of a deed, of provisions therein indicating an intention to postpone or limit the rights of the grantee until after the death of the grantor, is the subject of the annotation following SHAULL v. SHAULL, post, 23; specifically, as to cases holding that an instrument is not given a testamentary character by a provision to the effect that the title is to vest or pass upon the maker's death, see subd. III. c, 2 (o); as to cases holding that such a provision impresses a testamentary character on the instrument, see III. c, 3 (n).

EMMA JOSEPHINE TRUMBAUER et al., Appts.,

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An instrument in the form of a deed, which is not executed so as to be valid as a will, which is delivered prior to the maker's death, and with

(36 8. D. 301, 154 N. W. 801.)

which he never attempts to interfere, is not made testamentary in character by a recital that it is to go into effect only after the death of the grantor, who is to have full possession of the land during life, and that grantee is to pay certain money to grantor's children within six months after grantor's death.

[See note on this question beginning on page 23.]

APPEAL by plaintiffs from a judgment of the District Court for Union County (Jones, J.) in favor of defendant in an action brought to cancel an alleged deed, and establish title to the land attempted to be conveyed. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Charles H. Bartelt, Edwin R. Winans, and Ellwood & Tourgee, for appellants:

The instrument in question remained subject to revocation during the lifetime of the grantors; and subject to rejection by the grantee after their death. It was therefore a testament, and not a deed, and as a will it is inoperative.

McGarrigle v. Roman Catholic Orphan Asylum, 145 Cal. 695, 1 L.R.A. (N.S.) 315, 104 Am. St. Rep. 84, 79 Pac. 447; Donald v. Nesbit, 89 Ga. 290, 15 S. E. 367; Sperber v. Balster, 66 Ga. 317; Barnes v. Stephens, 107 Ga. 441, 33 S. E. 399; Tuttle v. Raish, 116 Iowa, 331, 90 N. W. 66; Reed v. Hazleton, 37 Kan. 321, 15 Pac. 177; Pinkham v. Pinkham, 55 Neb. 729, 76 N. W. 411; Murphy v. Gabbert, 166 Mo. 596, 89 Am. St. Rep. 736, 66 S. W. 536; Turner v. Scott, 51 Pa. 126; Leaver v. Gauss, 62 Iowa, 314, 17 N. W. 522; Cunningham v. Davis, 62 Miss. 366; Carlton v. Cameron, 54 Tex. 72, 38 Am. Rep. 620; Ferris v. Neville, 127 Mich. 444, 54 L.R.A. 464, 89 Am. St. Rep. 494, 86 N. W. 960; Hester v. Young, 2 Ga. 31; Ragsdale v. Bowker, cited in 2 Bail. L. 590; Frederick's Appeal, 52 Pa. 338, 91 Am. Dec. 159.

Messrs. French & Orvis for respondent.

Whiting, J., delivered the opinion

of the court:

The only question before us, upon this appeal, is the sufficiency of the facts, both those admitted by the pleadings and those found by the trial court, to sustain the judgment of such court. Such facts are as follows: On August 4, 1908, a purported deed to certain land was executed and acknowledged by the owner and his wife. The grantee therein was the son of the makers of such writing. The writing was

left with the party who took the
acknowledgment, under instruc-
tions to such party that he deliver
the same to the grantee; and he did
deliver it to such grantee prior to
the death of either of the makers.
Both makers died before this ac-
tion was brought. The writing was
in form a full warranty deed, pur-
porting to be given for a large
money consideration; its granting
clause reading, "do hereby grant,
bargain, sell and convey unto said
party of the second part, his heirs
and assigns forever;" its habendum
clause being in usual words, among
its covenants being one that the
makers "have good right to sell and
convey the same in manner and
form aforesaid," its closing words
being those usually found in a deed.
But it recited that it was subject to
two conditions: "This deed is to go
into effect, only after the death of
both
grantors, the survivor
to have full possession of the land
during his or her natural life only;"
and "the grantee herein agrees to
pay" certain sums of money to the
other children of the grantors,
"within six months after the death
of the survivor." The covenant
against encumbrances was: "That
the same are free from all encum-
brances except that the payment of
the above sums as stated shall be a
legal lien against said real estate
until paid."

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The trial court held the writing to be a deed.

Cases almost without number have been before the courts of other jurisdictions, wherein such courts

have been called upon to determine whether a writing purporting to purporting to convey real property was a deed or a testamentary conveyance. There is no conflict of authority as to what distinguishes a deed from a testamentary conveyance. If it pass a present interest or right, even though the enjoyment thereof be postponed until the death of the grantor, it is a deed; if it pass no present interest or right, but is dependent upon the death of the maker to consummate it, it is testamentary in its nature, notwithstanding it be denominated a deed and is a deed in form and in some essential characteristics. If testamentary in character, its validity will depend upon whether it was executed in the manner prescribed by the Statute of Wills; and, if not valid, it will not even create a trust in favor of the grantee. O'Gorman v. Jolley, 34 S. D. 26, 147 N. W. 78.

In determining whether or not a writing is a deed, the controlling question and the ultimate object of inquiry should, in every case, be: What was the intent of the maker? If it was to postpone title and enjoyment until after his death, the writing is not a deed; if it was to confer titl, but to postpone the enjoyment thereof, it is a deed. Stroup v. Stroup, 140 Ind. 179, 27 L.R.A. 523, 39 N. E. 864. Recognizing the above as the settled law, we find respondent contending that the writing before us was "a present conveyance of a future estate in fee,

reserving to the grantors a life estate and right of possession;" while appellants contend that it was "a testamentary instrument an attempt to arrange the affairs of the grantors, prior to their death, in such a manner as would save to them both the title and right of possession during their lives."

An examination of the numerous cases wherein other courts have been called upon to determine whether a writing was a deed or a testamentary conveyance shows that, while in every case the court has sought to determine the intent

of the makers, and has held the writing to be either a deed or a testamentary conveyance, according as the ascertained intent of the grantor was to convey a present interest with enjoyment thereof postponed, or was to postpone both the vesting of the interest and the enjoyment thereof, each case stood upon its own peculiar facts,-the wording of the particular writing, the declarations of the maker at the time of executing the writing,-in fact, all surrounding circumstances tending to reveal the intent of the maker, As different minds will naturally reach different conclusions, though the evidence may be the same, it is not strange that we find, as we do, opinions from different tribunals which cannot be harmonized; yet a careful reading of each opinion generally reveals some fact that clearly justifies the conclusion reached by the court. After a careful review of the many cases, we are convinced that there is, in fact, but little conflict among the authorities.

Certain rules that should guide the court in arriving at the intention of the maker seem to be generally accepted. The intention of the maker is to be gathered, primarily, from the language of the writing itself. Sharp v. Hall, 86 Ala. 110, 11 Am. St. Rep. 28, 5 So. 497. The above rule is declared by §§ 928 and 1248, Civ. Code. This rule does not preclude the court, in doubtful cases, from a consideration of the facts and circumstances under which the writing was made, and which existed up to the death of the maker; and it is to be regretted, that, in the case at bar, the facts

circumstances under which this writing was made were not disclosed. Among those things which may appear in the writing itself, and which the courts hold tend to show an intent to make a deed, are designation of it as a deed, recitation of consideration, particular description of the land, covenants of title, the sealing and acknowledging of the writing. The delivering and recording of the writ

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