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and his wife, and conveyed an estate "commencing upon the death of the said John O'Day (grantor), and continuing so long as the said Clymena Alice O'Day shall live." This instrument is held to be operative and effective to convey a present interest in the life estate, and to be a deed, and not an instrument testamentary.

(v) Grantees to "be possessed" after maker's death.

In Robertson v. Dunn (1812) 6 N. C. (2 Murph.) 133, 5 Am. Dec. 525, the instrument is in the usual form of a deed, and makes conveyances to several persons, each of whom is "to be possessed after" the grantor's death. In the final clause it is provided that "all the rest of my [grantor's] estate that I may die possessed of" is to be divided among certain persons. This instrument is held to be a deed, and not a will. In reaching its decision, the court is influenced by the fact that the grantor called upon a party to write her a deed of gift, and that the person who wrote it considered it to be such.

(w) Provision that maker's executors shall convey after maker's death. For cases construing the instrument as a will, see infra, III. c, 3 (x).

Articles of agreement wherein the owner of land grants and agrees that, in consideration of sums of money to be paid after his death, his executors shall "immediately after the death of himself and his wife, ... convey and assure" certain lands to the other party to the instrument, and which provide that the owner of the land "reserves the right to live on the said premises for himself and his wife during their lifetime," is held in Meck's Appeal (1881) 97 Pa. 313, not to be a will, but a deed.

So, in Fletcher v. Fletcher (1844) 4 Hare, 67, 67 Eng. Reprint, 564, 14 L. J. Ch. N. S. 66, 8 Jur. 1040, the maker of a voluntary deed of trust covenanted with the trustees that, in case either of his sons survived him, his [maker's] executors should, within twelve months after his death, pay a certain sum to the trustees upon trust for the sons. The testator retained the

deed in his possession until his death, and did not communicate it, either to the trustees or the beneficiaries. On the ground that the maker of the instrument did not make a specific reservation therein of a right to deal with the property notwithstanding the instrument, it is held to be a deed.

And where in Jeffries v. Alexander (1860) 8 H. L. Cas. 594, 11 Eng. Reprint, 562, 31 L. J. Ch. N. S. 9, 7 Jur. N. S. 221, 2 L. T. N. S. 768, a deed of covenant was executed, whereby the maker covenanted that he would in his lifetime, or that his executors should within twelve months after his decease, invest a sum of money in consols, in the names of trustees, to be held upon certain charitable trusts, the instrument is held to be a deed, and not a will, notwithstanding that it remained in the custody of the covenantor, and was not communicated to the covenantees.

3. Language construed as will. (a) "At my death," contained in granting clause.

For cases construing instrument as passing a present interest, see supra, III. c, 2 (a).

An instrument providing that, “in consideration of natural love and affection for my son. . . . I do give unto him the following property . . after my death and the death of my wife, to have and to hold the said property forever," is held in Hester v. Young (1847) 2 Ga. 31, to be a will, and not a deed. The question in this case is, "When did William Womack intend that his son should

take possession of this property? After his death? It is evident from the face of the paper, the words, 'after my death,' coming before the habendum, and tenendum before the limitation." It is also pointed out in confirmation that all of the grantor's property, both real and personal, is conveyed.

And where a written instrument in the general form of a warranty deed conveys land by a granting clause, limited by the phrase "at our death," and provides, with respect to the person

alty conveyed by it, that the possession shall be postponed until the death of the grantors, it is held in Blackstock v. Mitchell (1881) 67 Ga. 768, that, as to the land, the instrument is testamentary in character.

So, an instrument denominated a deed, granting property after the maker's death, and making other provision for the grantee should the property in question be sold by the maker during his lifetime, is held in Thorold v. Thorold (1809) 1 Phillim. Eccl. Rep. (Eng.) to be a will, and not a deed, the intention of the maker being to pass title at his death.

Supplying the words "I give," in an instrument reading: "Know all men by these presents, that after

my death [I give]" certain property to a certain person and his heirs, "but, in case he should die without bodily heirs, the whole" of the property "to return to my estate," it is held in Welch v. Kinard (1843) Speers, Eq. (S. C.) 256, that the instrument is intended to operate only upon the testator's death, and that it is a will.

In Re Belcher (1872) 66 N. C. 51, an instrument in the form of a deed, containing the words "I . . . do give at my death," and proved to have been written by a layman, at the request of the maker for a will, is held to be a will.

Where the maker of an instrument having some of the characteristics of a deed provides therein that "I do hereby, on and after the day of my death, by this will, grant, convey, and assign" certain property, it is held in Miller v. Holt (1878) 68 Mo. 584, that the instrument is a testamentary disposition of the property.

And where the owner of slaves executes a paper, by which, in consideration of love and affection and the sum of $1, it is stated that he has given unto his niece's daughter and the heirs of her body, at his decease, certain negroes, to have and to hold at his decease forever, the instrument is a will, and not a deed, it is held in Johnson v. Sirmans (1882) 69 Ga. 617, there being intended "no passing a

present title, with a reservation of a life estate in the grantor."

Johnson v. Yancey (1856) 20 Ga. 707, 65 Am. Dec. 646, involves an instrument in the following language: “Due, at my death, to Haney Johnson, the sum of $2,500, from the general fund of my estate as a gift." The maker's signature follows, and then the instrument continues: "The condition of the above bond or obligation is such, that whereas, for the fidelity and obedience that I have for

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I donate, in the above manner, what I design for her at my death." On the ground that the paper "purports palpably, upon its face, to be the mode adopted by Lewis Yancey, of giving to Haney Johnson what he designed for her 'at his death,' and which he directed to be paid 'out of the general fund of his estate," the instrument is held to be a testamentary paper, and not a deed.

In an instrument not using words of grant, but purporting to be a "testamentary agreement," in Re Diez (1872) 50 N. Y. 88, a husband and wife "hereby determine that, upon the death of one or the other of them, the surviving husband or wife shall receive the entire property of the one having died first." This instrument is held to have no present effect in operation, and to be a will.

See Habergham v. Vincent (1793) 2 Ves. Jr. 204, 30 Eng. Reprint, 595, 4 Bro. Ch. 353, 29 Eng. Reprint, 931, where the maker of an instrument, called a deed poll, does not expressly postpone the taking effect of the conveyance till after his death, but where he does refer in the instrument to his will and a power of disposition reserved therein, and proceeds to make a disposition in accordance with the power. Although not in the form of a will, it is held to be intended to operate only from the death of the grantor, and to be testamentary in character.

And see Williams v. Claunch (1906) 44 Tex. Civ. App. 25, 97 S. W. 111, involving an agreement in which the one party declares it to be her "aim and purpose . . to will and bequeath" certain land to the other, at her death,

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in consideration of the agreement of the other to take charge of and to cultivate the land. The instrument is not in the usual form of a deed, and is held testamentary.

See also Ellis v. Pearson (1900) 104 Tenn. 591, 58 S. W. 318, infra, III. c, 3, (j).

(b) "At my death," contained in habendum.

For cases construing instrument as passing a present interest, see supra, III. c, 2 (b).

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So, where the maker of an instrument in the form of a deed inserts an habendum reading "to have and to hold . . . from and after the death of" the grantor, and subsequently in the instrument specifically states that "the intention of the grantor by this deed is to convey said property to [grantee], to take effect upon his death," it is said in Goodale v. Evans (1914) 263 Mo. 219, 172 S. W. 370, that the "language cannot be tortured into meaning that any right, title, or interest in or to the real estate was conveyed to or was vested in the grantees, prior to the death of the grantor." The instrument is held to be testamentary, and void.

An instrument in the form of a deed, containing words of present conveyance, is held in Sperber v. Balster (1881) 66 Ga. 317, to be a will, where the habendum provides the "said deed of gift to be of full effect at my death, together with all the live stock, cattle, hogs, mules, poultry, and all other live stock that may be found on said premises, together with all said premises," and it is further provided that the grantee shall have all the furniture brought into the house during the future. "These words," the court says,

"show the intention of the maker to convey what would be on the premises at his death, and to have his gift of the land to go into effect at the same time." In this case, the court has some difficulty in avoiding the improper rule laid down in Johnson v. Hines (1861) 31 Ga. 720, supra, III. c, 2, (b), to the effect that, under the rules of construction applicable to deeds, the clause first appearing must control, and that, accordingly, a limitation in the habendum, when in conflict with the words of present conveyance in the granting clause, is of no effect. That rule, however, is avoided by the fact that there are three different habendums in the paper in question, the court holding that the rule in the earlier case was not meant to apply to papers so crudely and inartistically drawn.

Ferris v. Neville (1901) 127 Mich. 444, 54 L.R.A. 464, 89 Am. St. Rep. 480, 86 N. W. 960, involves the following instrument: "This is good to Miss Rubie Ferris for $800, as payment for care and attendance rendered by her to me in my last sickness; this $800 is to be collected out of my estate after my death, providing, however, die a bachelor." The court says: "It is a will, and not an acknowledgment of a debt. If it were a duebill or an acknowledgment of a debt, it could not have been defeated by the marriage of the testator. It was to take effect only at the death of the testator."

And see Johnson v. Sirmans (1882) 69 Ga. 617, supra, III. c, 3, (a); Turner v. Scott (1866) 51 Pa. 126, infra, III. c, 3, (e).

(c) Specific reservation of life estate. For cases construing instrument as passing a present interest, see supra, III. c, 2, (d).

In Ragsdale v. Booker (1826) 2 Strobh. Eq. (S. C.) 348, note, an instrument in the form of a deed, in which the grantor conveys certain slaves to be divided among his grantees, and reserves to himself a life estate therein, is held to be a will, and not a deed.

And see Seay v. Huggins (1915) 194

Ala. 496, 70 So. 113, supra, III. c, 3, (e).

(d) Reservation of use, possession, enjoyment, and control during maker's life.

For cases construing instrument as passing a present interest, see supra, III. c, 2, (e).

Where the maker of an instrument provides that she gives all her property to a certain person, but that she is "to have the use of all" so long as she lives, and that, after the maker's death, the donees are to "have full and free use" of the property, it is held in Kisecker's Estate (1899) 190 Pa. 476, 42 Atl. 886, that the intention of the maker is to pass an interest, to take effect on her death, and that such is especially true where the evidence shows that the instrument. was tained by the maker, and never delivered.

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So, in Crain v. Crain (1858) 21 Tex. 790, earlier appeal (1856) 17 Tex. 81, instruments purporting to be deeds, but reserving the possession and control of the property to the grantor for his lifetime, are held to be intended to take effect after the death of the grantor, and to be testamentary.

And in Jones v. Loveless (1884) 99 Ind. 317, a deed reserving to the grantor "the right to hold, and use, and dispose of the rents and profits of said real estate during the term" of his life is held not to be intended to take effect until after the grantor's death, and to be an attempted testamentary disposition, without the requisite formalities of a will.

Where, in an instrument, the maker, in consideration of being supported for life, "doth hereby make over" all her right and title to certain slaves, and further sets out the provision that the slaves are "still to be under her [grantor's] power during her lifetime, but at her decease to be the property" of the grantee, it is held in Crawford v. M'Elvy (1843) 2 Speers, L. (S. C.) 225, that the instrument is not a deed, but, at most, a will.

In Dunn v. Bank of Mobile (1841) 2 Ala. 152, a deed, conveying land and

slaves to the grantor's daughter, and to her children then in life, and to those thereafter to be born, contained a provision that "I am to retain the possession and use of said land and negroes, and the profits of them, if I choose, during my life; with this reservation, the deed in all other respects, and for every purpose, to be established and final." The court says that if an instrument in the form of a deed of gift is "only to be consummated by death, and not to operate during life, probate will be granted of it as a will."

Shepherd v. Nabors (1844) 6 Ala. 631, involves an instrument in the form of an indenture, giving a certain negro to the heirs of the body of the maker's daughter. After setting out that he has given the slave to such heirs, and warrants and defends the right to the negro from his heirs, the maker states that "nevertheless I . . . doth keep the said negro in my possession my lifetime, and at my decease the negro is in full possession of the heirs of Winney Shepherd's body." The court views it as a will, on the ground that it is testamentary in its nature. In reaching a contrary conclusion in a later case (Adams v. Broughton (1848) 13 Ala. 731, supra, III. c, 2, (e)), the court attempts to harmonize that case with Shepherd v. Nabors (Ala.) supra, on the ground that "there, although the form of the deed was quite similar, there was no grantee in esse at the time of its execution, and it may be inferred from the report that there was no evidence of its delivery to anyone as a deed." And in Wilk v. Greer (1848) 14 Ala. 437, supra, III. c, 2, (e), it is again said: "In each of those cases, the instrument could not take effect as deeds vesting a present interest or title in the donees; for, in the first case named (Dunn v. Bank of Mobile), the deed was made to Mrs. Dunn and to her children then in life, and to those thereafter to be born, and was to take effect after the death of the donor; and, in the last case (Shepherd v. Nabors), the donees were not in esse at the time of the gift, so that they could take. It is manifest then, as there could have been no delivery,

either actual or constructive, of the property, the gifts could not take effect as deeds, and the court prevents a failure of the interest by holding them good as testamentary papers."

See Epperson v. Mills (1857) 19 Tex. 65, involving an instrument in the form of a deed, which is limited to take effect at the grantor's death, in which the grantor disposes of the whole of his estate, together with such other property as he may acquire during his lifetime, reserving, during his life, the right to act as trustee for the grantees, and, as such, to control the property and to dispose of it for the benefit of the grantees. While not called upon to decide whether the instrument is a deed or a will, the court is inclined to the opinion that it is testamentary.

And see Walker v. Jones (1853) 23 Ala. 448, infra, III. c, 3, (e); Mosser v. Mosser (1858) 32 Ala. 551, infra, III. c, 3, (e); Crocker v. Smith (1891) 94 Ala. 295, 16 L.R.A. 576, 10 So. 258, infra, III. c, 3, (e); Seay v. Huggins (1915) 194 Ala. 496, 70 So. 113, infra, III. c, 3, (e); Cravy v. Rawlins (1850) 8 Ga. 450, infra, III. c, 3, (s); Symmes v. Arnold (1851) 10 Ga. 506, infra, III. c, 3, (s); Nichols v. Chandler (1875) 55 Ga. 369, infra, III. c, 3, (h); Dye v. Dye (1899) 108 Ga. 741, 33 S. E. 848, infra, III. c, 3, (e); Arnold v. Arnold (1899) 62 Ga. 628, infra, III. c, 3, (e); Reed v. Hazleton (1887) 37 Kan. 321, 15 Pac. 177, infra, III. c, 3, (n); Cunningham v. Davis (1884) 62 Miss. 366, infra, III. c, 3, (e); Boon v. Castle (1908) 61 Misc. 474, 115 N. Y. Supp. 583, infra, III. c, 3, (n); Turner v. Scott (1866) 51 Pa. 126, infra, III. c, 3, (e); Hannig v. Hannig (1893) Tex. Civ. App., 24 S. W. 695 (held will, upon construction in light of evidence not set out in case), supra, III. b, 9, (a); Roberts v. Coleman (1892) 37 W. Va. 143, 16 S. E. 482, infra, III. c, 3, (x).

(e) Provision that instrument is to "take effect" or "operate" at maker's death.

For cases construing instrument as passing a present interest, see supra, III. ċ, 2 (g).

It is held in Donald v. Nesbit (1892) 89 Ga. 290, 15 S. E. 367, that an instrument in the form of a deed, conveying an undivided one half of certain premises to one person, in consideration of love and affection, and the other undivided one half of the same premises to another, in consideration of services rendered and to be rendered, is a will, where it provides that "in no event is this deed to go into effect until after my death."

So, it is held in Coulter v. Shelmadine (1902) 204 Pa. 120, 53 Atl. 638, that an instrument containing a clause providing that "this assignment shall not be of any effect until after my (grantor's) death" is testamentary, and that the grantee does not take any present interest in the land.

And an instrument otherwise in form of a deed, with a clause to the effect that it is understood that "this deed is not to be delivered, or become operative, except in case of the death of the party of the first part," is testamentary in character, and, if executed with the formalities required by the Statute of Wills, may be admitted to probate as a will. Re Broffee (1919) Mich. 172 N. W. 541.

In Morgan's Goods (1866) L. R. 1 Prob. & Div. (Eng.) 214, 35 L. J. Prob. N. S. 98, 14 L. T. N. S. 894, 14 Week. Rep. 1022, a decedent made three deeds of gift, conveying all of his property to trustees for the benefit of his children, each of the instruments containing a clause directing that the conveyance was not to take effect until after the maker's death. These instruments are held to be intended to operate only upon the death of the maker, and they are construed to be testamentary.

In Turner v. Scott (1866) 51 Pa. 126, the indenture provided that the "entire use and possession" of the conveyed premises was reserved to the grantor during his life, and that the conveyance was "in no way to take effect until after the decease of" the grantor. The habendum was to have and to hold the premises "after the decease" of the grantor. These clauses the court deems as giving the

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