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right, title, interest, and estate shall vest in the grantees.

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In Jerman v. Orchard (1692) Skinner, 528, 90 Eng. Reprint, 237, 1 Salk. 346, 91 Eng. Reprint, 303, the holder of a lease for a thousand years conveyed it by deed, the premises of which conveyed presently, and the habendum of which reserved a life estate. the ground that the premises and habendum are inconsistent, and that the habendum, not being necessary, should not be permitted to render void that which was perfect before, it is held that the premises should prevail. The inconsistency consisted in the reservation of a life estate which is, in contemplation of law, a larger estate than one for a thousand years. (e) Reservation of use, possession, enjoyment, and control during maker's life.

For cases construing instrument, see infra, III. c, 3 (d).

In Adams v. Broughton (1848) 13 Ala. 731, an instrument purporting to be a deed of gift of certain slaves, in consideration of the "love and good will" of the grantor for the grantee, is construed as a deed, although containing a clause wherein the grantor reserves "to himself and his wife Polly the use and enjoyment of the slaves during his lifetime and the lifetime of his said wife." Ormond, J., says: "The effect of this deed was to convey to the donee, immediately upon its delivery, the title to the slaves, the right to the possession being reserved to the donor. The instrument was not testamentary in its character, but became immediately operative upon its execution."

So, in Wilks v. Greer (1848) 14 Ala. 437, it is held that a deed conveying slaves, in consideration of love and affection, to the grantor's daughters, and providing that the grantor and his wife are to have the use of the slaves during their lives, vests "the right to the slaves conveyed, upon its delivery, and operates as a conveyance in præsenti, and not as a testamentary paper."

And, where the grantor reserves "to his own use and enjoyment the full interest and estate in the above-described properties, the rents, issues,

and profits thereof, for and during the term of his natural life," the contention that the instrument is a will is "entirely untenable." Knowlson v. Fleming (1894) 165 Pa. 10, 30 Atl. 519. The effect of the clause is held to be the reservation of a life estate in the grantor, which "is entirely consistent with a presently passing estate in fee simple in the grantee."

In McIntyre v. McIntyre (1909) 156 Mich. 240, 120 N. W. 587, the following paragraph was contained in a deed: "It is understood that this deed is made for the purpose of creating a future estate, preserving to the grantee [grantor] hereof and his wife full use and occupancy thereof until the death of the survivor of them, to the end that the use and occupation, rental and enjoyment, thereof, shall be and belong to them and the survivor of them during life, and the full title and enjoyment of the above-described land shall only become operative upon the death of the survivor of the grantors hereof, and at that time, and not before, the said grantee shall enjoy the full title and control hereof." This instrument is viewed by the court as passing a vested interest in the grantee, and, consequently, not being testamentary in character.

In Baltimore v. Williams (1854) 6 Md. 235, the owner of land conveyed it in trust, reserving the right to use, occupy, possess, and enjoy the land during her life, and to have the rents, profits, issues, and income thereof during that period. She provided further that, immediately after her death, the property was to be held in trust for such uses as were specified in a will already executed. This instrument is held to be a deed, and not a will, and accordingly not revocable.

An instrument in the form of a formal conveyance in fee is not rendered testamentary, it is held in Cable v. Cable (1891) 146 Pa. 451, 23 Atl. 223, by an exception in the habendum to the effect that the grantors reserve "the right and use of said lot during their natural lives," and a mention in the warranty of the "exception above stated, the right of living on and using said lot while they live."

So, the reservation of the use and occupation of the granted premises during the natural lives of the grantor and his wife does not have the effect, it is held in McDaniel v. Johns (1871) 45 Miss. 632, of making the instrument a will; but the instrument is a deed, conveying, upon execution and delivery, a present interest, with postponement of enjoyment thereof.

In Exum v. Canty (1857) 34 Miss. 533, grantor, in an instrument in the form of a deed, covenants to stand seised to his own use during his life, and to the use of a trustee after his death, with directions to the trustee as to the disposition of the property after the grantor's death. This was held to take effect upon its execution and delivery, and not to be testamentary in character.

Nor is a testamentary character which prevents its operation as a conveyance in præsenti impressed upon. a deed purporting to grant successive life estates with remainder, by an express reservation to the grantor, for the term of her natural life, of "the use, possession, and control of all and every part of said premises and all incomes, rents, and profits therefrom," the habendum clause also reading "to [grantee of the first life estate], after the death of said party of the first part, the possession, use, management, and control of said premises for and during the term of his natural life," etc. Hudspeth v. Grunke (1919) Mo. 214 S. W.

865.

A deed in Vessey v. Dwyer (1911) 116 Minn. 245, 133 N. W. 613, contained the following clause: "This conveyance and the title of said second parties to the above-described lands to take [effect] only upon the death of said first party; and this conveyance is made only upon the covenant and agreement between all said parties that said first party shall continue to own and occupy said land as her own during her natural life, and said first party hereby reserves to herself the use, occupation, rents, and profits of all said described land during her natural life." The court is of the opinion that "it was the intention that the

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præsenti, with a reservation in the deed take effect as a conveyance in grantor of the use and occupancy thereof during her natural life.

The words, 'shall continue to own,' may be consistently construed to refer to the right of control and occupancy of the land, and to the use of the rents and profits to be derived from the land during her natural life." The court is also influenced in its conclusion by the fact that the instrument, if construed to be a will, will be without effect.

So, an instrument in the form of a conveyance of a fee-simple title, using words importing a present transfer of title and the statutory warranty, and reserving to the grantor no power to defeat or jeopardize the operation. thereof, is a deed, and not a will, although the grantor reserves a right to v. Craig (1902) 135 Ala. 332, 33 So. the use of the land for her life. Adair

902.

See Folk v. Varn (1857) 9 Rich. Eq. (S. C.) 303, involving an instrument in which the grantor reserves the use of the property during his lifetime, in which, despite the use of the word "bequeath," in connection with the ordinary words of grant and the lack of internal evidence of delivery, the instrument is held to be a deed.

And see Smith v. Davis (1917) 199 Ala. 687, 75 So. 22, where an instrument in the form of a deed, reserving to the grantor the use and possession of the property until the time of her death, is held a deed. The attendant facts are not set out.

See also Matthews v. Moses (1879) 21 Tex. Civ. App. 494, 52 S. W. 113, involving an instrument in the form of a deed, with respect to which the parties had an oral understanding that the grantor was to retain the use of the premises during her life, in which the instrument is held not, on that account, to be testamentary.

An instrument in the form of a deed, but providing that the property is to go into the possession of the grantees at the grantor's death, is held in Moye v. Kittrell (1860) 29 Ga. 677, to be a deed, and not a will. It has been held competent, the court says, "for

the donor to reserve a life estate in the property conveyed, without making the paper testamentary. A reservation of the possession merely is not equal to a life estate.”

So, a deed in the usual form, containing a recital that the grantor is "to retain the possession of the abovedescribed property until his death, then to go to the" grantee, delivered to a third person to be delivered to the grantee at the death of the grantor, is held in Tansel v. Smith (1911) 49 Ind. App. 263, 93 N. E. 548, rehearing denied in (1911) 49 Ind. App. 268, 94 N. E. 890, to give the grantee a feesimple title, and not to constitute a testamentary disposition.

And a deed in the usual form, except that it is stated in the final clause thereof that the grantee is not to go into possession until after the deaths of the grantor and the grantor's wife, is held in Craven v. Winter (1874) 38 Iowa, 471, to convey a present interest, with the reservation of a life estate in the grantor, and to be a deed, and not a will.

Where an instrument in the form of a deed provides that the conveyance is "to be completed and done" at the grantor's death, and that the possession of the land is to remain in the grantor till his death, it is held in Beebe v. McKenzie (1890) 19 Or. 296, 24 Pac. 236, that "the intention is to convey presently the freehold or fee to the grantee, subject to the grantor's possession and use during his life," and that it is a deed, and not a will.

In Wright v. Giles (1910) 60 Tex. Civ. App. 550, 129 S. W. 1163, the conveyance in question contained the following clause: "That the above-described land remain in possession of the said B. M. Giles [grantor], and the proceeds of said land to be used by him for the defraying of all expenses of said land and support of himself and wife and children during their natural lifetime, and at their death said land is to become the property of W. S. Giles in fee simple." The instrument is held not to be testamentary in character.

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instrument in question is in the form of a deed, except that it contains the following clause: "And it is further agreed that this deed and conveyance of the within-described tract of land is to be held in our possession, and occupied by us as a home until our death." The instrument was signed without witnesses, and acknowledged as a deed, and the grantors, in a subsequent conveyance, refer to it as a deed. The court holds it a deed, and not a will.

In connection with the preceding case, see Emerson v. Rice (1914) — Tex. Civ. App. 165 S. W. 471, which involves the same facts, and is decided on the opinion there set out.

A deed is not rendered testamentary, it is held in Ekblaw v. Nelson (1914) 124 Minn. 335, 144 N. W. 1094, by a clause providing that the grantor is "to remain in full possession and ownership of said described real estate during his lifetime," and that "this deed is not to be placed on record until after the death of" the grantor. "The intention to convey the fee, reserving to the grantor a life estate, is readily seen," according to the court.

Although conveying, with certain exceptions, all of the personal estate of the grantor, and reserving the right "to hold and enjoy" the property conveyed during his natural life, and, if he think proper, to part with any of the stock, accounting to the grantee for the proceeds of the sale, an instrument in the form of a deed, stating the purpose of the maker to be the advancement of gifts to his children in his lifetime, which it should not be in his power to revoke, is held in Lightfoot v. Colgin (1813) 5 Munf. (Va.) 42, to be a deed.

So, in Bevins v. Phillips (1897) 6 Kan. App. 324, 51 Pac. 59, the instrument in question was in the form of a warranty deed, in the usual form, except that it contained the following recital: "Conditions of this deed is such as said party of the second part that this land shall not be encumbered in any way, or this deed shall be void. The party of the first part is to hold said property his lifetime." The in

strument is held to be a deed, it being the intention of the grantor to convey a present interest in the land, subject to his life estate and the restriction against encumbrance.

In Low v. Low (1915) Tex. Civ. App., 172 S. W. 590, the grantor, by words of present conveyance, grants and conveys all of his property to his wife. In the second clause, he provides as follows: "I do not intend by this deed to convey a present interest to my said wife and children, but convey on the limitation specifically hereafter mentioned. I intend to retain control and possession of said property, and to manage the same, together with the rents and profits arising therefrom, as long as I may choose to do so, or as long as I may live." He grants a life estate to his wife at his death, the life estate to terminate on the wife's remarriage, and provides that "when such event should occur, or in case of her death, then the whole of the property shall go and vest absolutely in fee to my two said children." The instrument is held to be a deed.

So, in Graves v. Wheeler (1913) 180 Ala. 412, 61 So. 341, a clause reserving the right to manage and control the property so long as the grantor lives, without liability to account to the grantee, is held not to change the character of the instrument from that of a deed to a will, the operation thereof not being by the clause postponed until the death of the grantor.

And in Craft v. Moon (1917) 201 Ala. 11, 75 So. 302, an instrument in the form of a deed, so denominated, and acknowledged, delivered, and recorded as such, is held a deed, and not a will, although it contains an habendum reading "to have and to hold the said tract

after my death, forever," and provides further in the next sentence that "the full use and control of the above land" is "reserved to myself during my natural life, but after my death this deed is to have full force and effect."

An instrument containing the technical terms of conveyance used in a deed is not rendered testamentary, it is held in Bass v. Bass (1874) 52 Ga.

531, by a clause providing that the maker and his wife are to have "the use, benefit, and control" of the land, during their natural lives.

To the same effect is Shelton v. Edenfield (1918) 148 Ga. 128, 96 S. E. 3, where an instrument executed in the form of a fee-simple warranty deed recited that the grantor was "to have and control the sale of the land during her natural life, thence" to the named grantee.

And a deed conveying, among other things, two negro girls, is not transformed into a will with respect to the girls, by a clause reserving to the grantor the use and control of the girls during the grantor's lifetime. Meek v. Holton (1857) 22 Ga. 491. The net effect of the instrument was, according to the court, "to cause the remainder in the two to pass out of Taylor [grantor] into his daughter

immediately on the execution of the instrument." In distinguishing between this case and Symmes v. Arnold (1851) 10 Ga. 506, infra, III. c, 3, (s), and Cravy v. Rawlins (1850) 8 Ga. 450, infra, III. a, 3, (s), it is said: "In the present, the donor, after saying that he gives the whole of the property, says that he is to have an interest for his life in a part of the property. It is certain, therefore, that the instrument of conveyance is a deed as to a part of the property-that part in which there is no reservation of any interest. And it may be argued

. that, if words of conveyance are words of a deed in reference to a part of the property which they convey, they are to be considered as words of a deed, in reference to the other part of the property which they convey. In those two cases, respectively [the cases cited above], the donor, after saying that he gives the whole of the property, says that he reserves to himself an interest for his life, in the whole of the property. It is no more certain, therefore, that the instrument of conveyance is a deed, as to one part of the property, than that it is as to another."

In Dismukes v. Parrott (1876) 56 Ga. 513, an instrument in the form of a deed, but reserving the control of

the conveyed premises during the life of the grantor, and providing that the grantee is to have and to hold them after the grantor's death, is held, in view of the fact that, on account of the lack of sufficient witnesses, it cannot be given effect as a will, to be a deed.

In Jones v. Lingo (1904) 120 Ga. 693, 48 S. E. 190, an instrument in the usual form of a deed, expressing a consideration, containing a warranty, and delivered to the grantee, is held to be a deed, notwithstanding a clause providing that, for the purpose of paying the grantor's debts and making a division of the remainder of the proceeds to the grantor's daughters, the grantee is to sell the property after the grantor's death, which clause states further that the grantor reserves the right to control and possess and own during his lifetime.

The deed in question in Hart v. Rust (1877) 46 Tex. 556, provides for the retention of the possession, control, use, management, and disposition of the property by the grantor and his wife during their lives, and declares that, in event of the death of the grantee without issue during the lives of the grantor and his wife, the property shall revert to them, or the survivor of them. The court can "perceive nothing in the instrument, or the circumstances connected with its execution, to warrant the inference that it was intended by the grantors to have effect as a will, and not as a deed."

So, the condition, inserted in a deed, reserving to the grantor "full possession and control" of the land for his lifetime, is held in Mays v. Burleson (1913) 180 Ala. 396, 61 So. 75, not to operate to change the instrument into a will.

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feasible by a reserved power, and not to be testamentary.

A written instrument, reciting a consideration, and containing the usual granting habendum and warranty clauses, and concluding with a reservation of the "full ownership and control of the above-named premises during my natural life," in which it is stated that "at my death this property belongs" to the grantee, and that the conveyance "is intended as a relinquishment of all my interest" in the property, "except the ownership and control during my natural life," is held in Chrisman v. Wyatt (1894) 7 Tex. Civ. App. 40, 26 S. W. 759, to be a deed, and not a will.

It is held in Pratt v. Balcom (1911) 45 N. S. 123, that a conveyance of all the grantor's real and personal property, with a reservation of the management and control thereof during the lifetime of the grantor and his wife, is a deed, and not a will.

In Eckman v. Eckman (1871) 68 Pa. 460, a deed in the usual form contained the following clause: "The said Daniel Eckman [grantor] reserves the rents and profits arising out of the said premises and dwellings for and during his natural life or lifetime, and, at his decease, then the right of rents and profits of and in said land becomes vested in" the grantees. This is held to be a present grant, and not one to take effect on the death of the grantor.

Likewise, a reservation by the grantor of "the occupation, rents, issues, and profits of the said above-granted premises, for and during the term of my natural life," does not, it is held in Simpson v. Hartman (1868) 27 U. C. Q. B. 460, render testamentary an instrument, otherwise in the usual form of a deed.

In Pruett v. Cowsart (1911) 136 Ga. 756, 72 S. E. 30, an instrument in the form of a deed, given in consideration of love and affection and the right of the grantor to remain in possession of the lands, and to receive the benefits thereof during his lifetime, is held to convey an estate in præsenti, with possession postponed until after the death of the grantor, and not to be testamentary in character.

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