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

ing are also matters to be considered. Saunders v. Saunders, 115 Iowa, 275, 88 N. W. 329.

There is one question that should always be borne in mind when interpreting a doubtful writing: How must it be interpreted to make of it a valid instrument? Section 1252, Civ. Code, provides: "A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable and capable of being carried into effect, if it can be done without violating the intention of the parties."

It stands conceded that, if the writing before us is not a deed, it has no validity whatever, as it was not executed and attested in accordance with the statutes relating to wills. There are peculiar reasons why the above rule should be most liberally applied under facts such as those before us. Actions wherein the courts are called upon to interpret writings such as the one now before us are almost always brought after the death of the makers thereof. Whatever may have been the full intent of the maker at the time he executed the writing, whether to vest a present interest with enjoyment thereof postponed, or to postpone both the vesting of the title as well as the enjoyment of the interest sought to be conveyed, one thing is beyond dispute: The maker intended that, at least after his death, title should vest in the grantee named. And another fact beyond dispute is that the maker died with out undoing whatever he attempted to accomplish, thus leaving unequivocal evidence that he died, intending and expecting his grantee to have full title of the property. To declare such a writing to be invalid prevents the carrying out of such clear intent, and vests the property otherwise than as intended by the maker thereof, a thing no court should do unless driven thereto by some express provision of law. avoid such result, the intent of the maker to do that which the law does not sanction should be clearly and

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satisfactorily established. As said in Jones on Real Property, § 527, quoting from Spencer v. Robbins, 106 Ind. 580, 5 N. E. 726: "Unless an instrument which has been fully executed from every point of view seems to be a nullity, it will not be intended that the parties meant that it should be invalid, and some effect will, if possible, be given to it."

Unless the clear intent of the maker is to the contrary, a writing, not so executed as to be good as a will, should be given effect as a deed, if good as a deed, and a writing not so executed as to be good as a deed should be given effect as a will, if good as a will. Saunders v. Saunders, supra; West v. Wright, 115 Ga. 277, 41 S. E. 602; Abney v. Moore, 106 Ala. 131, 18 So. 60;. Hunt v. Hunt, 119 Ky. 39, 68 L.R.A. 180, 82 S. W. 998, 7 Ann. Cas. 788.

Is it clear that the makers of the writing before us did not intend to convey a present interest in the property? We think not. They made use of that form of instrument by means of which a present interest is usually conveyed; they used words of present conveyance; they described the land with particularity; the habendum clause is in ordinary form, the makers covenanted that they were seised in fee, and that they had good right to sell and convey; they executed and acknowledged the writing in accordance with the law governing the execution and acknowledgment of deeds, and not in accordance with the law prescribing the manner of executing and attesting wills; in the very clause which, appellants contend, renders this writing not a deed, the makers designate it as a deed. If, as contended by appellants, the makers were attempting to arrange their affairs "in such a manner as would save to them both the title and right of possession during their lives." Why did they not use the method prescribed by law for so doing? Why did they not execute an instrument in the form of a will, and attest the same, as the law requires? It is worthy of note

that it does not appear that the makers had no other property; a person making a testamentary disposition of property generally includes all his property, and makes disposition of it all. There was no provision for payment of the debts of the makers, a provision found in many instruments in form of deeds, which have been construed by the courts to be testamentary in nature. We are convinced that the clear intent of the makers was to transfer fee title to the grantee, subject to a

Deed-to take effect after death-effect.

life estate reserved to themselves; that upon the delivery and acceptance of the deed by the grantee, both he and appellants became possessed of rights thereunder, which could not be changed by any future acts of the makers. Our conclusion seems to be in harmony with the great weight of authority. In the following cases, the writings before the courts were all in the usual form of, contained the usual provisions of, and were executed, acknowledged, and delivered as, deeds. Each contained a provision similar to the one in the writing before us.

In Shackleton v. Sebree, 86 Ill. 616: "This deed not to take effect until after my decease."

In Saunders v. Saunders, 115 Iowa, 275, 88 N. W. 329: "The intention being that this deed shall not be in force or take effect until after the death of the grantor herein."

In Lauck v. Logan, 45 W. Va. 251, 31 S. E. 986: "But it is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after the said [grantor] shall depart this life, and not sooner."

In West v. Wright, 115 Ga. 277, 41 S. E. 602: "This deed shall take effect at my death."

In Abney v. Moore, 106 Ala. 131, 18 So. 60: "Provided always, and it is expressly understood and agreed, that this conveyance is not to take effect until after my death, and that at my death the title to the foregoing lands are to

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In Kelley v. Shimer, 152 Ind. 290, 53 N. E. 233: "This deed is to take effect and be in full force on and after the death of this grantor."

In Hunt v. Hunt, 119 Ky. 39, 68 L.R.A. 180, 82 S. W. 998, 7 Ann. Cas. 788: "This deed is not to take effect until the death of said [grantors]."

In Love v. Blauw, 61 Kan. 496, 48 L.R.A. 257, 78 Am. St. Rep. 334, 59 Pac. 1059: "The estate in said lands and tenements not to vest in said named grantees and their heirs until the death of [grantors], she reserving in herself a life estate therein. To have and to hold unto the said grantees and their heirs from and after the death of the said [grantor]."

Among all the cases cited by appellants, we find but four that do not reveal facts clearly justifying the conclusion of the courts, that the writing under consideration did not pass a present interest. These four reveal facts analogous to those before us, yet the courts held that the writings were not deeds. We refer to Donald v. Nesbit, 89 Ga. 290, 15 S. E. 367; 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; Carlton v. Cameron, 54 Tex. 72, 38 Am. Rep. 620. We think, however, that the great weight of authority supports the following statement found in Wilson v. Carrico, supra: "While it may be said, in regard to the point under consideration, that the authorities 'fight on both sides' of the question, however, we find that in the later decisions the courts are inclined to uphold a deed of this char

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

acter, if, upon a reasonable interpretation of all its parts, it can be said that the grantor did not intend to create, or, in other words, execute, that which must be construed and held to be void. In construing written instruments, courts frequently do-and properly, toogive to an expression a meaning different from that which it ordinarily bears, in order to import sense into it, and make it speak that which, upon an inspection of the whole, the parties really intended that it should."

And we also believe the following, from the same authority, is peculiarly applicable to the facts before us: "In Broom's Maxims, 540, in translating a fundamental maxim of the law, it is said: 'A liberal construction should be placed upon written instruments, so as to uphold them, if possible, and carry into ef fect the intention of the parties.' Applying the reason and the principle, as laid down by the authorities cited, and guided by the rule of construction, that the clause in controversy must be construed most favorably to the grantee, we cannot hold that the grantors intended that this obligation was to be null and

void; but we are constrained to decide that it conveyed a present interest in the real estate to the grantee, the full enjoyment of which was, by the subsequent clause, intended to be postponed until after the death of both of the grantors. By so holding, we carry into effect the intention of the parties, and we fail to recognize wherein this construction works an injury or injustice to anyone."

The judgment appealed from is affirmed.

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, SHAULL, post, 23; specifically, for cases holding that a provision to the effect that the instrument is to take effect or operate at maker's death did not prevent its passing a present interest, or impress a testamentary character upon it, see subd. III. c, 2 (g); for the converse, see subd. III. c, 3 (e).

THOMAS W. SHAULL et al., Appts.,

V.

SARAH C. SHAULL et al.

Iowa Supreme Court-February 6, 1918.

(182 Iowa, 770, 166 N. W. 301.)

Deed to take effect at death validity.

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A deed delivered and recorded in obedience to directions by one to whom it was delivered in escrow, conveying land to one and his heirs and assigns, passes title, although it provides that it is to take effect immediately upon the death of the grantors.

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

APPEAL by plaintiffs from a judgment of the District Court for Iowa County (Howell, J.) in favor of defendants in an action brought to quiet title to certain land. Affirmed.

The facts are stated in the opinion of the court.

Messrs. J. M. Dower and Dutcher & Davis, for appellants:

The deed expressly, in writing, did not become effectual until the death of the grantors, and therefore it was testamentary and void.

Leaver v. Gauss, 62 Iowa, 314, 17 N. W. 522; Wilson v. Carter, 132 Iowa, 444, 109 N. W. 886; Ransom v. Pottawattamie County, 168 Iowa, 570, 150 N. W. 657; Re Tolerton, 168 Iowa, 677, 150 N. W. 1051; Saunders v. Saunders, 115 Iowa, 275, 88 N. W. 329; Pinkham v. Pinkham, 55 Neb. 729, 76 N. W. 411; Carpenter v. Carpenter, 141 Wis. 544, 124 N. W. 488; Bigley v. Souvey, 45 Mich. 370, 8 N. W. 98; 9 Enc. Ev. 371; Van Husen v. Omaha Bridge & Terminal R. Co. 118 Iowa, 377, 92 N. W. 47.

Messrs. Popham & Havner, for appellees:

Where a deed is executed and delivered into the hands of a third person to be held in escrow, and is not recalled, the effect is to pass an interest in præsenti.

Lippold v. Lippold, 112 Iowa, 134, 84 Am. St. Rep. 331, 83 N. W. 809; Newton v. Bealer, 41 Iowa, 334; Saunders v. Saunders, 115 Iowa, 275, 88 N. W. 329; Miles v. Miles, 168 Iowa, 153, 150 N. W. 21; Ransom v. Pottawattamie County, 168 Iowa, 570, 150 N. W. 657.

The question of delivery is generally held to be one of intent, and, ordinarily, where it appears that the grantor intended to part with the control of the deed and to pass the present title, the delivery is sufficient for that purpose.

Saunders v. Saunders, 115 Iowa, 275, 88 N. W. 329; White v. Watts, 118 Iowa, 549, 92 N. W. 660; Foreman v. Archer, 130 Iowa, 49, 106 N. W. 372; Hinson v. Bailey, 73 Iowa, 544, 5 Am. St. Rep. 700, 35 N. W. 626; Schillinger v. Bawek, 135 Iowa, 131, 112 N. W. 210; Kneeland v. Cowperthwaite, 138 Iowa, 193, 115 N. W. 1026; Lacey v. State, 152 Iowa, 477, 132 N. W. 843.

If the right to the property passed by the conveyance beyond the control of the grantor, it was a vested right.

Lacey v. State, supra; Lamb v. Morrow, 140 Iowa, 89, 18 L.R.A. (N.S.) 226, 117 N. W. 1118.

The declaration that the deed shall not go into effect until the death of the grantor does not give it a testamentary character.

Kelly v. Shimer, 152 Ind. 290, 53 N. E. 233; Jones, Real Prop. § 527; Wilson v. Carrico, 140 Ind. 533, 49 Am. St.

Rep. 213, 40 N. E. 50; Owen v. Williams, 114 Ind. 179, 15 N. E. 678; Spencer v. Robbins, 106 Ind. 580, 5 N. E. 726; Gano v. Aldridge, 27 Ind. 294; Stout v. Dunning, 72 Ind. 346.

If the provision, "This deed to take effect immediately upon the death of both the grantors herein," is in conflict with the granting clause, the granting clause must prevail.

Green Bay & M. Canal Co. v. Hewitt, 55 Wis. 96, 42 Am. Rep. 701, 12 N. W. 382; Cates v. Cates, 135 Ind. 272, 34 N. E. 957.

The instrument should be held to be a valid instrument, if possible. Cates v. Cates, supra.

Stevens, J., delivered the opinion of the court:

The plaintiffs, and the defendants Michael Shaull and Eva Shriv. er, are the children of George W. Shaull, deceased. Defendant Sarah C. Shaull is his widow. The plaintiffs, being four in number, claim a four-sixths' interest in a certain 80 acres of land, of which it is claimed George W. Shaull died seised. They bring this action, asking that their title be quieted as against the defendants. Defendants deny that the plaintiffs have any interest in the land, or had any interest in the land at the time of the death of George W. Shaull, as his heirs or otherwise. Michael Shaull claims to be the absolute owner of the said 80 acres of land, by virtue of a warranty deed executed by George W. Shaull and his wife to Michael Shaull, on April 17, 1909. The widow joins in the claim of Michael, and alleges that, under the deed, she is entitled to a life estate. Plaintiffs' reply is that the instrument is void, because testamentary in its character.

There are other allegations in the reply which we need not consider. There was a trial to the court, the decree entered in favor of the defendants, holding that Michael Shaull is the owner of the property, subject to a life estate in the widow Sarah C. Shaull, and decreeing that plaintiffs have no interest in the property in controversy.

It is conceded that the plaintiffs are heirs at law of George W.

(182 Iowa, 770, 166 N. W. 301.)

Shaull, and are entitled to share in whatever property he left, and would be entitled to share in this property were it not for the execution of this deed. The deed relied upon by defendants recites: "We, George W. Shaull and Sarah C. Shaull his wife, in consideration of the sum of $5,600 in hand paid by Michael Shaull,

do hereby sell and convey unto Michael Shaull and to his heirs and assigns, the following described premises: [Here follows a description of the property in controversy.]"

Following the description this clause appears: "This deed to take effect immediately upon the death of both the grantors herein," followed by the usual covenants of warranty of title, against encumbrance, and for quiet enjoyment.

The only question here for our consideration is whether or not the clause in the deed, to wit, "This deed to take effect immediately upon the death of both grantors herein," renders the deed void as an instrument of conveyance. It appears that this deed was executed on the 17th day of April, 1909, and retained in the possession of George W. Shaull, the grantor therein named, until September 27, 1911. On the 27th day of September, 1911, the said George W. Shaull delivered the said instrument to one Arthur M. Vette, president of the People's Savings Bank at Marengo, Iowa, and took his receipt therefor in the following words:

Received of George W. Shaull warranty deed dated April 17, 1909, for east of the S. E. of section 16, township 80 north, range 11 west of 5th P. M., left in escrow to be delivered to his son Michael Shaull, to take effect immediately upon the death of George W. Shaull, for a consideration of $5,600.

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he would be sure it would be carried out the very way he wanted it to be. Mr. Simmons testified that he said to Mr. Vette that he would like to have him put it on record; that he thought it would be safer to do that than to keep it off the record. Mrs. Sarah C. Shaull, the mother, testified that he said he wanted it recorded, and wanted it handed over to Mike. He said he wanted Mike to have it. He said: "Record it, and hand it over to Mike." Thereafter it appears that deceased gave to Vette the following instructions in writing:

We hereby authorize Arthur M. Vette, president of the People's Savings Bank of Marengo, Iowa, to have the following deed recorded which was left in escrow with him September 27, 1911, and to be delivered to Michae! Shaull upon the death of both grantors [here follows a description of the property], which was executed by grantors the 17th day of April, 1909.

Signed this 31st day of January, 1912.

George Shaull.

In accordance with the verbal instructions so given, Mr. Vette caused the deed to be recorded, as directed, on January 27, 1912, and within a few days thereafter, it is claimed by him, delivered the deed so recorded to Michael Shaull.

Upon this state of the record, we are asked to say that the deed so drawn, upon delivery, passed to Michael Shaull the fee title to the land in controversy, immediately the limitation in the deed. The upon its delivery, notwithstanding court below held that the deed

passed title to Michael upon delivery, and that the words of the deed did not postpone the passing of title until the death of the grantors. This holding can be supported only on the theory that the deed itself conveyed the title in præsenti, and that on the delivery to Vette, to be delivered to Michael on the death of the testator, the title passed immediately to Michael, the enjoyment of

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