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(146 Ga. 476, 91 S. E. 551.)

ing on the instrument construed herein. That in the case of West v. Wright, 115 Ga. 277, 41 S. E. 602, is a substantial duplicate of the one now under consideration. At least, it presents no material point of difference in the clause under differentiation. In the case of Isler v. Griffin, 134 Ga. 192, 67 S. E. 854, the writing recited that it was to take effect not only after the death of the maker, but also "from and after the death of my father and mother, and not until then." This was held to be a deed although possession was postponed to the contingency of the maker's death, and also to the death of the father and mother.

In Phillips v. Phillips, 186 Ala. 545, 65 So. 49, Ann. Cas. 1916D, 994, the instrument construed contained the language, "This deed not to take effect until after my death," and it was held to be a deed. Somerville, J., said: "Courts have undertaken in innumerable cases to prescribe the general tests by which the character of an instrument in this regard is to be determined; but, while there seems to be a substantial uniformity of opinion as to the general principles to be applied, the cases themselves exhibit the utmost contrariety in the particular conclusion reached, even in the same jurisdictions."

In the opinion many cases are cited to sustain the rule, and in the notes appended thereto in Ann. Cas. 1916D, 994, recent cases in many states are cited and discussed, dealing with the rules of law applicable to the construction of an instrument which has the form of a deed, but which is limited to take effect at the death of the grantor, either by its express terms or by the mode of delivery. The early cases on this question are collated in the notes to Hunt v. Hunt, 7 Ann. Cas. 788, and Ferris v. Neville, 89 Am. St. Rep. 480. From the great wealth of authorities thus gathered and analyzed, the general agreement of courts may be stated: (1)

An instrument which is in the form of a deed, to take effect on the death of a maker, where there are no other indicia to prove the intention of the grantor, and the instrument can be held valid either as a deed or as a will, the court will construe the instrument so as to prevent its becoming inoperative. (2) Whether such an instrument is to be construed as a deed or a will depends upon the intention of the grantor as to the passing of a present irrevocable interest, or whether no interest should pass until after the death of the grantor, and whether the grantor, until then, should have the right to revoke the instrument. (3) The intention of the maker of the instrument is to be ascertained from the whole, construed together. (4) Looking to extraneous facts, the delivery of the instrument is some evidence that the same shall operate as a deed, although its terms provide that possession is postponed until after the death of the maker.

The instrument in the present case is in the form of a warranty deed. It is attested by two witnesses and by an officer authorized in express terms of the law to witness deeds. A will, to be valid, need not be witnessed by such an officer. This instrument was delivered on

effect.

or about the date Deed-to take of its execution, effect at deathand has remained thereafter in the possession of one of the grantees. Looking further to extraneous evidence, one of the witnesses swore that the grantor made the delivery in person, and accompanied the delivery with the statement that the grantee should "take the deed; that he did not know when he would die;" and he said: "Here is the deed; this is yours; take it and take care of it, and at my death the property will be yours."

The construction announced is in harmony with the above-stated adjudication, as well as with equity and justice.

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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 construing the instrument to pass a present interest notwithstanding the provision that it is to take effect or operate at maker's death, see subd. III. c, 2 (g) of that annotation; and as to cases where instruments employing such language have been construed as a will, see subd. III. c, 2 (e).

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A deed reciting that it is to take effect only after the death of grantor is testamentary in character and will not prevail against a subsequent deed by grantor, to take effect in præsenti.

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

APPEAL by defendants and cross complainants from a decree of the Chancery Court for Newton County (Tann, Ch.) in favor of plaintiffs in a suit for the cancelation of a deed. Reversed.

The facts are stated in the opinion of the court. Messrs. Byrd & Byrd, for appellants:

The clause in the instrument, "This to take effect only after the death of the said Harriet Houston," is testamentary in character, and the instrument therefore cannot be upheld as a deed.

Devlin, Deeds, 2d ed. § 855c; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Sartor v. Sartor, 39 Miss. 760; Cunningham v. Davis, 62 Miss. 366; McDaniel v. Johns, 45 Miss. 632.

Mr. W. I. Munn for appellees. Smith, Ch, J., delivered the opinion of the court:

On the 5th day of March, 1894, Harriet Houston executed and delivered to Babe, Monk, and Lutie Houston an instrument in writing, in form a deed, conveying certain

property, and containing the following provision: "This to take effect only after the death of said Harriet Houston." On the 17th day of October, 1904, Harriet executed and delivered to Julia Simpson a regular deed to the same property Both of these instruments were properly acknowledged, and the first was filed for record in the of fice of the chancery clerk of New ton county on the 9th day of Apri 1895, and the second on the 22d da of November, 1904. After the deat of Harriet, which occurred in 190 Babe, Monk, and Lutie Housto appellees herein, filed a bill in t court below, praying for the canc ation of the deed executed by H

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(112 Miss. 344, 73 So. 55.)

riet to Julia, and also of two deeds of trust which Julia had given on the property. Julia, the trustee, and beneficiaries in the deeds of trust given by her, who were made parties defendant to this bill, filed an answer and cross bill, praying for the cancelation of appellees' claim to the property. The decree was in accordance with the prayer of the original bill.

If the instrument executed by Harriet, under which appellants claim title to the land, is a deed, the decree of the court below is correct; if it is not a deed, but is testamentary in character, the decree is erroneous. It is clear from the language herein before quoted from this instrument that it was the donor's intention that the instru

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applied in Sartor v. Sartor, 39 Miss. 760, and Cunningham v. Davis, 62 Miss. 366, it must be held to be testamentary in character, and therefore not a deed.

Reversed, and decree here in accordance with the prayer of appellants' cross bill.

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 a provision that an instrument is to take effect or operate at maker's death characterizes the instrument as testamentary, see subd. III. c, 3 (e); as to cases construing instruments employing such language to pass a present interest, see subd. III. c, 2 (g).

MRS. NANNIE COX, Appt.,

V.

CHARLES M. REED.

Mississippi Supreme Court (Division A)—March 12, 1917.

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1. A deed is made testamentary by a provision that it "shall take and be in effect on and after the death" of the grantor. [See note on this question beginning on page 23.] Evidence to explain writing.

2. Parol evidence is not admissible to show the intention of grantor as to the character of an instrument which

is plain and unambiguous, so that its meaning can be ascertained from reading it.

[See 10 R. C. L. 1063, 1064.]

APPEAL by complainant from a decree of the Chancery Court for Tippah County (McGowen, Ch.) in favor of defendant in a suit to have certain land sold for a division of the proceeds between the parties. Reversed. The facts are stated in the opinion of the court. Messrs. Spight & Street, for appellant:

Whatever may be the form of the instrument or the circumstances of its execution and delivery, if, upon the

whole, the intention was that it should only have a future operation after death, it must be held to be a will.

Wall v. Wall, 30 Miss. 96, 64 Am. Dec. 147; 13 Cyc. 521, subd. c; 8 R, C. L.

933, 992; Sartor v. Sartor, 39 Miss. 771; Cunningham v. Davis, 62 Miss. 368; Turner v. Scott, 51 Pa. 126; Sperber v. Balster, 66 Ga. 317; Donald v. Nesbit, 89 Ga. 290, 15 S. E. 367; Pinkham v. Pinkham, 55 Neb, 729, 76 N. W. 411.

Mr. Thomas E. Pegram, for appellee:

The written instrument in controversy was a deed, and not testamentary in its character.

Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Myers v. Viverett, 110 Miss. 334, 70 So. 449; Rogers v. Rogers, Miss., 43 So. 434; McDaniel v. Johns, 45 Miss. 632.

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

The appellant, Mrs. Nannie Cox, filed her bill in the chancery court of Tippah county against Charles Reed, the appellee, in substance alleging that appellant and appellee are sister and brother, and that their father, Allen Reed, died seised and possessed of the lands involved in this controversy. The bill further alleges that Allen Reed and his wife in 1901 executed an instrument in writing which was intended as a will, devising the land in controversy to appellee; that this instrument was not properly witnessed as a will, and is therefore void; that the deceased, Allen Reed, left surviving him as heirs and distributees the appellant and the appellee. It then prays that the lands involved in this controversy be sold for a division of the proceeds. The answer of appellee denied that the instrument executed by Allen Reed was intended to be a will, but that it was in fact a deed. Appellee attempted by parol testimony to prove that Allen Reed intended the instrument to be a deed, and not a will. The chancellor sustained the contention of the appellee, and held that the instrument was a deed, and dismissed the bill of appellant, from which decree this appeal is prosecuted.

The sole question presented to this court for decision is whether or not this instrument is a deed or whether it is testamentary in char

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Be it known that for and in consideration of the natural love and affection I have for and do bear toward Charley M. Reed, my son, and for $1 cash in hand paid to us the receipt of which is hereby acknowledged, I hereby grant bargain sell and convey and warrant to him and to his heirs and assigns forever the following described property in said county of Tippah, Mississippi: All that portion of the northeast quarter of section 16 in township 3 of range 3 east except what has heretofore been sold off. This deed shall take and be in effect on and after the death of myself and wife. Witness our signatures the 29th day of November, 1901.

his

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(113 Miss. 488, 74 So. 330.)

announced in [citing authorities], it must be held to be testamentary in character, and therefore not a deed." See also Thomas v. Byrd, 112 Miss. 692, 73 So. 725.

from a reading of the instrument,. death; consequently, under the rule which is plain and unambiguous. It therefore follows that it was error of the lower court in admitting parol testimony relating thereto. 3 Jones, Ev. §§ 454 et seq.

Evidence-to explain writing.

In Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147, the court, in discussing the difference between a deed and a will, summarizes the rule as follows: "In the one case [a deed] the conveyance takes effect in præsenti, to a certain extent; in the other it has no effect whatever until the death of the testator." See also Sartor v. Sartor, 39 Miss. 772.

In the case of Cunningham v. Davis, 62 Miss. 366, this court says: "If by it any present interest was vested, it should be held to be a deed. If it was not to have any operation or effect until the death of the maker, it could not be treated as a deed, although it was so named, and is in form a deed."

This court, in the case of Simpson v. McGee, 112 Miss. 344, ante 4, 73 So. 55, a case in which the instrument construed, in legal effect, is similar to the one above quoted, had the following to say: "It is clear from the language herein before quoted from this instrument that it was the donor's intention that the instrument itself should not take effect for any purpose until after her

The clause in this instrument, "This deed shall take and be in effect on and after the death of myself and wife," clearly shows the intention of the signers of this instrument that it was not to be in any way operative or effective until after their death. No interest whatever was vested in effect at death- præsenti in the grantee, "Charley M. Reed." It therefore follows that the instrument was not a deed. Reversed and remanded.

Deed-to take

effect.

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 a provision that an instrument is to take effect or operate at maker's death characterizes it as testamentary, see subd. III. c, 3 (e); as to cases construing instruments employing such language to pass a present interest, see subd. III. c, 2 (g).

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RELA ANN WIMPEY et al., Appts.,

V.

MARY E. LEDFORD et al., Respts.

Missouri Supreme Court (Division No. 2)-May 25, 1915.

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1. A deed is not made testamentary in character by a provision that this deed is made with the understanding that the grantors shall have all controlling power over the property during their lifetime, and at their death then the title is to pass, the word "title" meaning "right to possession."

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

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