proviso is, at least, doubtful; and it would not be in accordance with sound rules of construction to make the certain and definite yield to the uncertain and doubtful."

In Steel v. Steel (1862) 4 Allen (Mass.) 417, involving a deed contain ing a clause stating that the grantor does not intend to convey until his decease and that of his wife, and that he holds the property as his "own lawful property and estate, to remain [his] estate during [his] natural life," it is said that "whether this provision is to be considered as the reservation of a life estate to the grantor and his wife, or as an exception from the conveyance, its effect is, in either case, to postpone the right of the grantees to have possession of the estate conveyed until after the death of the grantor and his wife." There is no question of the testamentary character of the instrument here involved.

See Durand v. Higgins (1903) 67 Kan. 110, 72 Pac. 567, supra, III. c, 2, (k).

(r) Provision that grantee is to become owner upon maker's death.

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

In Myers v. Viverett (1915) 110 Miss. 334, 70 So. 449, the deed provides that "it is nevertheless distinctly understood and agreed that the said first parties are to hold possession and exercise control and ownership to and over said lands, during their natural lives, and at their deaths the said second parties are to be the sole owners thereof, with the personal property of which they may die seised and possessed." This is held not to be a will, but "a deed by which the land was conveyed to appellants [grantees], subject to a life estate reserved to the grantors."

See Nowakowski v. Sobeziak (1915) 270 III. 622, 110 N. E. 809, supra, III. c, 2, (q); Chavez v. Chavez (1890) Tex. -, 13 S. W. 1018, supra, III. c, 2, (1); Chrisman v. Wyatt (1894) 7 Tex. Civ. App. 40, 26 S. W. 759, supra, III. c, 2, (e); Wright v. Giles (1910) 60 Tex. Civ. App. 550, 129 S. W. 1163, supra, III. c, 2, (е).

(s) Postponement of payment of consideration till maker's death.

In Reed v. Brown (1915) 184 Mich. 515, 151 N. W. 592, a deed reserving to the grantor "all the use, benefits, and control of said land, during the life" of the grantor and his wife, and providing that "it is a part of the consideration of this conveyance that the second party pay to each of his five sisters, or their legal heirs, the sum of $50 on coming into possession of said land," is held not to be testamentary in character. "Immediately upon delivery of the instrument," the court says, "a vested estate passed, and the fact that the performance of the condition was postponed until the death of the grantors could not have the effect of converting a deed absolute into a testamentary disposition."

An instrument otherwise in form of a deed, with covenants of title, was held, in Watts v. Lawrence (1919) Wyo. -, 185 Pac. 719, rehearing denied (1920) - Wyo., 188 Рас. 34, to pass a present interest or estate and therefore not to be testamentary in character, notwithstanding a provision therein that the grantee shall pay certain sums to specified persons, and upon filing receipts from such persons," then this deed shall be of full force and effect, otherwise to be null and void."

See Meyer v. Shortenbecker (1917) - Iowa, -, 165 N. W. 456, supra, III. c, 2, (e); Meck's Appeal (1881) 97 Pa. 313, infra, III. c, 2, (w)..

(t) Provision against recording of instrument till after maker's death. The recital, "This deed to be null and void if recorded before my death," contained in a deed making a present grant of land, is held in Elliott v. Cheney (1914) 183 Mich. 561, 150 Ν. W. 163, not to indicate a testamentary intent on the part of the grantor.

See also Savage v. Bon Air Coal, Land, & Lumber Co. (1902) 2 Tenn. Ch. App. 594, supra, III. c, 2, (m).

(u) Conveyance "commencing upon death" of maker.

In O'Day v. Meadows (1905) 194 Mo. 588, 112 Am. St. Rep. 542, 92 S. W. 637, the deed was executed by the grantor 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 Η. 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 grant

ing 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.

after

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 my daughter 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 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

In an instrument not using words of grant, but purporting to be a "tes

(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, 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. с, 3, (j).

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

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

An instrument is testamentary in character, which provides that "I... for the consideration of $1 do hereby assign and set over to my daughter. all of my property, both personal and real, to have the same after my death." Robinson v. Brewster (1892) 140 III. 649, 33 Am. St. Rep. 265, 30 N. E. 683.

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