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grantee the absolute title in fee simple." This cause is held to have the effect merely of postponing the possession and enjoyment until after the grantor's death, and the instrument is construed to be a deed.

And see, in connection with the preceding case, Gideon v. Gideon (1916) 99 Kan. 332, 161 Pac. 595.

"Where a deed has been actually delivered to the grantee in the lifetime of the grantor, even though it contains a provision that it is not to take effect until the grantor's death, it will be sustained as a present grant of a future interest." Hathaway v. Cook (1913) 258 III. 92, 101 N. E. 227.

An instrument in the form of a warranty deed, attested as a deed and delivered to the grantee, is a deed passing title in præsenti, although it contains the words "that this deed is not to go into effect until after the death of the party of the first part, but, at the death of said party of the first part, the party of the second part is to take possession." Griffith v. Douglas (1904) 120 Ga. 582, 48 S. E. 129. The instrument here under consideration also affected to pass the personalty remaining on the premises, at the grantor's death, but no notice of that clause is taken by the court.

And an instrument in the form of a deed, conveying land subject "to the occupancy and possession of said real estate for and during the natural life of the grantor," and providing further that the intention of the grantor is that "this deed shall not be in force or take effect until after the death of the grantor," acknowledged, delivered, and recorded as a deed, but not able to be given force as a will, is held in Saunders v. Saunders (1901) 115 Iowa, 275, 88 N. W. 329, to be a deed, and not a will. "The statement of intention, that the deed should not be effective until after her death, was," according to the court's opinion, "evidently an attempt more fully and explicitly to set forth the fact that the conveyance was subject to her use and occupancy during life."

In Hunt v. Hunt (1904) 119 Ky. 39, 68 L.R.A. 180, 82 S. W. 998, 7 Ann. Cas. 788, an instrument in the form of

a deed, and authenticated as a deed, and not as a will, so that, to be effective at all, it must be as a deed, is held to be a deed, although it contains a clause to the effect that it is not to take effect until the deaths of the grantor and his wife.

And although an instrument in the usual form of a conveyance of land, with a warranty clause, contains a provision to the effect that it is not to go into effect until after the death of the maker, it is nevertheless a deed, it is held in Merck v. Merck (1909) 83 S. C. 329, 137 Am. St. Rep. 815, 65 S. E. 347, and conveys a fee with the reservation of a life estate in the grantor.

An instrument written on the usual blank form for deeds, properly acknowledged as a conveyance, and recorded, is a deed, although it contains a clause providing that it is "not to take effect until the death" of the grantor and his wife, where this clause is modified by the stipulation, contained in the same sentence, that the "premises shall be and remain their homestead, and, on the death of either of them, the homestead of the survivor." Martin v. Faries (1900)

22 Tex. Civ. App. 539, 55 S. W. 601.

Where an instrument is in the form of a deed, it is not rendered testamentary, it is held in Rawlings v. McRoberts (1894) 95 Ky. 346, 25 S. W. 601, by a clause providing that the instrument is to be "put to record, but not to take effect so as to give possession, until after my death, at which time they [grantees] are to divide the same as they see fit and proper." The instrument is construed to be a present conveyance, with possession postponed until after the death of the grantor.

Although a deed contains a provision that it "is to take effect only at the death of the grantor," where it is delivered to the grantee the title to the fee passes at once, subject to a life estate in the grantor, and the instrument is operative as a deed. Harshbarger v. Carroll (1896) 163 Ill. 636, 45 N. E. 565.

So, in TRUMBAUER V. RUST (reported herewith) ante, 10, a writing in the form of a full warranty deed, duly acknowledged by a husband and wife,

conveys land to the grantor's son, subject to the condition that it is to "go into effect only after the death" of both grantors, the survivor of whom is to have "full possession of the land during his or her natural life only." The grantee also agrees to pay certain sums of money to the other children of the grantors, "within six months after the death of the survivor." The instrument was delivered. The court holds it to pass a present interest, the enjoyment of which is postponed, and to be a deed.

Where the maker of an instrument, containing the usual words of present conveyance, provides in a subsequent clause that the instrument is "to be of no effect whatever" until the grantor's death, it is held in Alexander v. Burnet (1851) 5 Rich. L. (S. C.) 189, that, construing the whole of the instrument together so as to give effect to all parts thereof, the instrument is a deed, conveying a present interest, but postponing the enjoyment thereof.

See also Kokomo Trust Co. v. Hiller (1917) Ind. App., 116 N. E. 332, supra, III. c, 2, (e); Abbott v. Holway (1881) 72 Me. 298, infra, III. c, 2, (1); McIntyre v. McIntyre (1909) 156 Mich. 240, 120 N. W. 587, supra, III. c, 2, (e); Vessey v. Dwyer (1911) 116 Minn. 245, 133 N. W. 613, supra, III. c, 2, (e); Shackelton v. Sebree (1877) 86 III. 616, supra, II. a, 2, (a).

In other cases involving similar instruments, the specific question as to the character of the instrument is not raised, it being assumed, apparently, that the instruments are deeds, and that the only question raised by the clause postponing the taking effect of the instrument is in respect of the extent or nature of the estate created in the grantee, or reserved in the grantor or his wife, thereby. It is not intended to go into these various questions of estate here, the cases being set out merely for whatever value they may have upon the question here under discussion.

Although a grantor specifically provides therein that she is to retain the exclusive use and control of the property during her life, and that the conveyance is not to take effect until her

death, it is held in Dudley v. Herring (1906) 30 Ky. L. Rep. 270, 98 S. W. 289, that the instrument creates a remainder in the grantees, subject to a life estate reserved by the grantor.

And the same conclusion is reached in the later case of Martin v. Stewart (1908) 33 Ky. L. Rep. 729, 111 S. W. 281.

In Haines v. Brown (1915) 114 Me. 320, 96 Atl. 228, a clause in a deed providing that "this deed [is] to take effect at the decease" of the grantor, "and not before," is held to have the effect of reserving a life estate in the grantor, and to convey a vested remainder in the grantee.

And in Watson v. Cressey (1887) 79 Me. 381, 10 Atl. 59, the deed in question provides that the grantees are "to come into possession of said property on the decease of me and my wife, and not before," and that "this deed is to take effect and go into operation on the decease of me and my wife, and not before." This instrument is held to be valid, it operating to convey a vested remainder in the grantees, subject to the life estate of the grantor and his wife.

And see Reynolds v. McFarland (1889) 10 Ky. L. Rep. 932, 11 S. W. 202, involving a deed containing a clause providing that the instrument is not to take effect until after the deaths of the grantor and the grantor's wife, where it is held that the grantor's wife had a life estate in the land.

See also Husted v. Rollins (1912) 156 Iowa, 546, 42 L.R.A. (N.S.) 378, 137 N. W. 462, involving an habendum clause in a deed, providing that "this Ideed is to take effect at the death" of the grantor, where no claim is made that the instrument is thereby rendered testamentary in character, and the court accordingly treats it as a deed.

See Powell v. Ott (1912) Civ. App., 146 S. W. 1019.

Tex.

(h) Conveyance of property belonging to maker at his death.

For cases construing the instrument as a will, see infra, III. c, 3 (f).

An instrument conveying both realty and personalty in trust, and resembling in every other particular a deed,

is not converted into a will by the following clause, referring to the personalty: "Also, stock of all kinds, household and kitchen furniture, and any other species or kind of property in the possession of said Nathan Youngblood, at his demise." Youngblood v. Youngblood (1885) 74 Ga. 614. "It is certain that these words restricted the use and possession of the personalty until the grantor's death," it is said, "because his death must occur to ascertain that personalty. It may be, too, that a life usufruct was also reserved to the grantor in the realty, by a fair construction of those words. The title passed when the deed was delivered and recorded, in præsenti, and all that the words can be construed to effect is the time of enjoyment by the cestuis que trust."

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So, an instrument in the form of a deed, conveying land and personalty, with the habendum, "to have and to hold said tract of land unto him [said grantee] .. together with all the stock and household and kitchen furniture, . together with any other property that may be on the place at the said" grantor's death, is held in Goff v. Davenport (1895) 96 Ga. 423, 23 S. E. 395, to be a deed. "It was the evident purpose of this grantor to reserve to himself and his wife, during their natural lives, the right to the enjoyment of this property, with remainder over to John Goff [grantee]. The conclusion that this was the grantor's intention is supported by the fact that, though the deed was made for some time before that event transpired, the grantor, until his death, actually remained upon and in possession of the premises conveyed."

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See also Hershy v. Clark (1879) 35 Ark. 17, 37 Am. Rep. 1, infra, III. c, 2, (1); Powers v. Scharling (1902) 64 Kan. 339, 67 Pac. 820, infra, III. c, 2, (1); Ricker v. Brown (1903) 183 Mass. 424, 67 N. E. 353, supra, II. a, 2, (b); Robertson v. Dunn (1812) 6 N. C. (2 Murph.) 133, 5 Am. Dec. 525, infra, III. c, 2, (v); Phifer v. Mullis (1914) 167 N. C. 405, 83 S. E. 582, infra, III. c, 2, (m).

And see Taylor v. Purdy (1912) 151 Ky. 82, 151 S. W. 45.

(i) Conveyance of property left after payment of maker's debts.

For cases construing the instrument as a will, see infra, III. c, 3 (h).

Although included in an instrument designated by its maker a will, and although made subject to the payment of certain legacies, to the debts of the maker, and to a life estate reserved in the maker, a clause conveying "a present interest and estate in and to all the estate of which I am now or shall be at the time of my death seised," is held in Powers v. Scharling (1902) 64 Kan. 339, 67 Pac. 820, to convey a present remainder, subject to the maker's life estate.

So, a deed given in consideration of the grantees' feeding and clothing and caring for the grantor, during his old age, is not made a will by a clause providing that, after the grantor's doctor bill and funeral expenses are paid, the grantees are to have what he has left. Whitten v. McFall (1898) 122 Ala. 619, 26 So. 131.

See Spencer v. Robbins (1886) 106 Ind. 580, 5 N. E. 726, infra, III. c, 2, (n); Jacoby v. Nichols (1901) 23 Ky. L. Rep. 205, 62 S. W. 734; McGuire v. Bank of Mobile (1868) 42 Ala. 589, infra, III. c, 2, (j).

And see Bromley v. Mitchell (1892) 155 Mass. 509, 30 N. E. 83, involving a deed of property in trust to be disposed of in accordance with instructions previously delivered, a portion of which instructions had to do with the payment of the grantor's debts.

(3) Conveyance in trust for use of maker during his life.

For cases construing the instrument as a will, see infra, III. c, 3 (i).

An instrument in the form of a conveyance, purporting to "give, grant, and convey" all of the grantor's property, real, personal, and mixed, to the grantee, is held in McGuire v. Bank of Mobile (1868) 42 Ala. 589, to be a deed, although it provides that the grantee is to hold the property in trust,. "and apply the same, and all the profits and income thereof to the support,

comfort, and maintenance of myself, during the term of my natural life, and as I may direct; and, upon my decease, shall pay the necessary expenses attending my illness and the decent interment of my mortal remains; and, after so paying the necessary expenses, shall divide the remainder between my nephews and nieces." The court puts its decision on the ground that, while the grant did not take effect as to the nephews and nieces in present possession, "an immediate and present interest was vested in them on the execution of the deed, such an interest and estate as could not have been recalled by the maker."

Kyle v. Perdue (1888) 87 Ala. 423, 6 So. 296, involves an instrument in the form of a deed, containing words of bargain, grant, and sale, and reciting a valuable consideration, by which the grantor conveys all of her property, real, personal, and mixed, to grantees in trust to take charge of, collect the rents and profits, and, after expending what is necessary for the upkeep of the property, to pay the residue to the grantor. And it is further provided that, at the death of the grantor, "the property above mentioned shall revert to" the grantees in fee simple. This instrument is construed to be a deed. "Under the instrument," the court says, "Kyle and Henry [grantees] are to take charge of the property, collect the rents, and look after the taxes and repairs-all in the lifetime of Mrs. Perdue [grantor]. This gives to the instrument a large operation during the lifetime of the maker, and stamps it a deed, not a will." After making the provisions set out above, the grantor proceeds to grant, in consideration of valuable services rendered, all her property, real, personal, and mixed, of which she shall die seised or possessed, to the same grantees. The court views this last clause as having reference, not to the property already disposed of, but to profits of the land accruing to her during the trusteeship, and undisposed of during her lifetime, such property not passing by the first grant. Thus, the latter clause is saved from conflict with the former.

An instrument purporting to convey real and personal property in trust to pay the debts of the maker and to pay the income from the rest to the maker during his lifetime, and providing that upon his death the trust shall terminate and the property remaining in the trustee's hands is granted to maker's son and his heirs forever, was held in Linn v. Campbell (1919) 289 Ill. 347, 124 N. E. 622, not to be a testamentary instrument, but a deed vesting the fee to the real property in the remaindermen.

So, a written instrument in the form of a deed, conveying personal property to a grantee in trust, and charging him to pay the income therefrom to the grantor as long as she lives, and to make such investments in real estate as the grantor may direct, and, at her death, to distribute the property in equal shares among her children, conveys a present interest to the trustee, and is a deed, and not a will. Forney v. Remey (1889) 77 Iowa, 549, 42 N. W. 439.

And a trust deed of personal property, providing that the trustee shall pay the accruing interest on the property to the grantor, and, upon the grantor's death, shall divide the principal between his children, is held in Smith v. Corey (1914) 125 Minn. 190, 145 N. W. 1067, not to be testamentary in character.

In Spangler v. Vermillion (1917) 80 W. Va. 75, 92 S. E. 449, an instrument in the form of a trust deed to a trustee, providing for the sale of the property by the trustee, and the support, out of the proceeds, of the grantor for life, and the payment of her debts, the residue of such fund to be paid over at her death to certain designated persons, is held to be a deed, and not a will.

It is held in Tompson v. Browne (1835) 3 Myl. & K. 32, 40 Eng. Reprint, 13, 5 L. J. Ch. N. S. 64, that an instrument vesting property in trustees for the benefit of the grantor during his life, and, after his death, for the benefit of other persons, and containing a power of revocation, is not testa

mentary in character, the interest passed by it being a present one.

An instrument purporting to be a deed, using words of conveyance in præsenti, founded on a good consideration, warranting the title, sealed and delivered, conveying absolutely to trustees for the use of the grantor during life, and for the use of certain relatives in remainder, is held in Cumming v. Cumming (1847) 3 Ga. 460, to be a deed, and not a will.

So, a trust deed reciting a consideration, containing apt words of conveyance, and delivered to the trustee, is a valid deed conveying a present interest, and not testamentary in character, it is held in Kelley v. Snow (1904) 185 Mass. 288, 70 N. E. 89, although the grantor reserves the use of the property during her life, with a gift over upon her death, subject to be varied by appointment during her lifetime, upon notice to the trustee.

And a deed to a trustee, on condition that the grantor and his wife be permitted "to possess and enjoy" the property during their natural lives, and providing that, upon their deaths, the trustee shall sell the remaining property, and divide the proceeds among the grantor's children, is held, in Swiney v. Swiney (1884) 14 Lea (Tenn.) 316, to be a deed, and not a. will.

In Jackson v. Culpepper (1847) 3 Ga. 569, an instrument in the form of a trust deed, conveying slaves in trust for the use of certain cestuis que trustent, containing the usual clauses of grant, reciting a good consideration, and containing a covenant that the property conveyed shall not be subject to the deeds or contracts of the grantor, is held to be a deed, although the grantor reserves a "lifetime control and interest in the negroes." The court reasons as follows: "The feesimple title to the negroes vested in the trustee at the time of the execution of the deed by the donor, for the sole use and benefit of Mary Jackson and her increase, to be enjoyed by them after the termination of the life estate of the donor. The donor would

have been estopped in his lifetime, by his covenant contained in the deed, from asserting in himself the fee-simple title to the property conveyed to the trustee. The instrument was, in our judgment, operative and binding on the donor, in his lifetime, to pass the fee-simple title to the property from himself to the trustee."

A conveyance by an instrument in the form of a deed to a trustee in trust for his daughter, empowering him to manage and control the premises and to rent, sell, and dispose of them, provided they are not sold during the lifetime of the grantor, except with the grantor's consent, is held, in Freeman v. Jones (1906) 43 Tex. Civ. App. 332, 94 S. W. 1072, to be a deed taking effect upon delivery, and not a will.

Grantors in Robinson v. Ingram (1900) 126 N. C. 327, 35 S. E. 612, provided that the grantees should take and manage the property conveyed, and, out of the proceeds, support the grantor and his wife during their lives, and, after their deaths, divide the property among the grantors' children. It was also provided that, upon violation of the trust by the trustee, the conveyance was to be null and void. The instrument is held to be a deed of trust, and not a will.

In Nichols v. Emery (1895) 109 Cal. 323, 50 Am. St. Rep. 43, 41 Pac. 1089, a deed conveying property to a trustee upon trust to sell within ten months after the grantor's death, and containing a reservation of power of revocation, is held to be a deed. This is upon the ground that, under such a trust, the trustee's interest must pass immediately, although the grantor reserves, in effect, a life estate, and retains, under statute applying to deeds of trust, the power of revocation.

See Robb v. Washington & J. College (1905) 103 App. Div. 327, 93 N. Y. Supp. 92, modified in (1906) 185 N. Y. 485, 78 N. E. 359, involving an instrument in the form of a declaration of trust, by the terms of which the maker of the instrument declares himself to hold certain property as trustee for

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