instrument will be construed as a will if sufficiently executed to operate as a will. Thompson v. Johnson (1851) 19 Ala. 59 (obiter); Abney v. Moore (1894) 106 Ala. 131, 18 So. 60; Mays v. Burleson (1913) 180 Ala. 396, 61 So. 75; Seay v. Huggins (1915) 194 Ala. 496, 70 So. 113; Craft v. Moon (1917) 201 Ala. 11, 75 So. 302 (obiter); COLLIER V. CARTER (reported herewith) ante, 1.

Thus, it is said in Trawick v. Davis (1888) 85 Ala. 342, 5 So. 83, that, “when [an instrument] can have no effect as a deed, the court is inclined to regard it as a will, if in that character effect can be given to the evident intention of the maker."

In Heaston v. Krieg (1906) 167 Ind. 101, 119 Am. St. Rep. 475, 77 N. E. 805, the instrument contained a grant of the whole of the residue of the maker's estate, real, personal, and mixed, upon her death, and provided for the payment of certain legacies out of such residue. On the ground that these clauses can be given effect only by construing the instrument to be a will, it is so construed. This is said to be in accordance with the maxim, "ut res magis valeat quam pereat."

And where, in Crocker v. Smith (1891) 94 Ala. 295, 16 L.R.A. 576, 10 So. 258, the instrument purports to pass, not only the property owned by the maker at the time of making the instrument, but also all property that he might thereafter own, and, because of the absence of covenants of warranty in the instrument, it can have no operation on property thereafter to be acquired, it is said that, “in doubtful cases, the instrument will be pronounced a will, when it cannot have operation as a deed, but may as a will."

In connection with this section, reference is made to III. b, 6, supra, where the rule is laid down that the courts will make an effort to construe as a will any instrument in the form of a deed, containing a provision preventing its taking effect until the death of the maker, which would be invalid as a deed because of insufficient execution.

8. Presumption that instrument is deed. "Another rule of construction in such cases is that, when the paper on its face is equivocal, the presumption is against its operating as testamentary, unless it is made clearly to appear that it was executed animo testandi, or being intended by the maker to operate as a posthumous disposition of his estate." Abney v. Moore (1894) 106 Ala. 131, 18 So. 60.

While no authority has been found directly contradicting this case, neither has any authority been found in support of it. It is possible that the court, in this case, intended nothing more than a strong statement of the rules set out above (III. b, 2, and III. b, 3), that the name and form of the instrument are, in doubtful cases, evidence of the intent of the maker.

In Price v. Gross (1918) 148 Ga. 137, 96 S. E. 4, the court observed that if it be doubtful whether the instrument is a deed or a will, it will be held to be a deed, the court preferring to give the intention of the maker some effect rather than to defeat his intention altogether.

9. Admissibility of evidence outside the body of the instrument.

(a) Admissibility in general. In its effort to arrive at the intent of the maker of an instrument in the form of a deed, containing a clause postponing its taking effect until the death of the maker, the court will regard not only the instrument itself and the language and formalities made use of, but will also take into consideration evidence of facts and circumstances outside the body of the

instrument, attendant upon the execution thereof, bearing upon the intent of the maker. Sharp v. Hall (1888) 86 Ala. 110, 11 Am. St. Rep. 28, 5 So. 497; Josey v. Johnston (1916) 197 Ala. 482, 73 So. 27; Smith v. Davis (1917) 199 Ala. 687, 75 So. 22; Bunch v. Nicks (1887) 50 Ark. 367, 7 S. W. 563; Brice v. Sheffield (1903) 118 Ga. 128, 44 S. E. 843; Craven v. Winter (1874) 38 Iowa, 471; Leonard v. Leonard (1906) 145 Mich. 563, 108 N. W. 985; Re Dowell (1908) 152 Mich. 194, 115 N. W. 972; Wall v. Wall (1855) 30 Miss. 91, 64 Am. Dec. 147; Sartor v. Sartor (1861) 39 Miss. 760; Aldridge v. Aldridge (1906) 202 Mo. 565, 101 S. W. 42; Egerton v. Carr (1886) 94 N. C. 648, 55 Am. Rep. 630; Phifer v. Mullis (1914) 167 N. C. 405, 83 S. E. 582; Kisecker's Estate (1899) 190 Pa. 476, 42 Atl. 886; TRUMBAUER V. RUST (reported herewith) ante, 10.

"And whenever a paper of dubious import is so framed as in any event to postpone actual enjoyment under it until the death of the maker, as in the case here, all the attendant circumstances may be put in proof as aids in determining whether the maker intended it should operate as a deed or a will." Seay v. Huggins (1915) 194 Ala. 496, 70 So. 113, infra, III. c, 3, (€).

So, it is held in Hannig v. Hannig (1893) Tex. Civ. App. —, 24 S. W. 695, that an instrument in the form of a deed, containing a clause reserving the possession, rents, and profits to the grantor for his lifetime, and providing that the property is then "to pass immediately into the possession" of the grantee, "in absolute fee," is ambiguous, and that the court committed no error in submitting it for construction to the jury, together with extrinsic testimony bearing upon the question.

And in Herrington v. Bradford (1832) Walk. (Miss.) 520, involving an instrument in the form of a deed, conveying the lands possessed by the grantor at his decease, and providing that the property is to pass at the grantor's decease, and not before, evidence of the execution and delivery 11 A.L.R.-4.

of the instrument, and of the acts, intentions, and declarations of the grantor as to the character of the instrument, are held admissible, on the question of the character of the instrument.

And see Wilson v. Carrico (1894) 140 Ind. 533, 49 Am. St. Rep. 213, 40 N. E. 50, where it is held that, where the maker of an instrument in the form of a deed, containing a clause postponing its taking effect until his death, suffers the instrument to be recorded and the land to be sold, such acts are incompatible with the theory that the grantor has not conveyed a present interest in the lands to the grantee.

It is said in Clayton v. Liverman (1846) 29 N. C. (7 Ired. L.) 92, that "when the question is whether an instrument of writing is a testamentary paper or a deed, it [the maker's intent] becomes a fact to be proved by all kinds of evidence, by which, in law, any other fact may be established. The evidence which arises from the face of the instrument may be aided or opposed by evidence aliunde."

See Moody v. Macomber (1910) 159 Mich. 657, 124 N. W. 549; Ferguson v. Ferguson (1864) 27 Tex. 339, supra, III. b, 4, (b).

(b) Admissibility dependent upon existence of ambiguity on face of instrument.

While parol evidence is admissible to explain the terms of a written instrument whose language is not entirely clear, it is a well-known rule of law that parol evidence is not admissible to contradict or vary the terms of a written instrument, unambiguous in its language. It is under the former rule that outside evidence is admissible upon the question of the intent of the maker of an instrument, containing a provision postponing its taking effect until the death of the maker. But under the latter rule the admissibility of such parol evidence is limited strictly to cases in which the language of the instrument is ambiguous, and the intent of the grantor as to the interest intended to be passed is not clearly apparent therefrom. Seay v. Huggins (1915) 194 Ala. 496, 70 So.

113; Noble v. Fickes (1907) 230 Ill. 594, 13 L.R.A. (N.S.) 1203, 82 N. E. 950, 12 Ann. Cas. 282; Wilson v. Carrico (1894) 140 Ind. 533, 49 Am. St. Rep. 213, 40 N. E. 50; Clay v. Layton (1903) 134 Mich. 317, 96 N. W. 458; Herrington v. Bradford (1832) Walk. (Miss.) 520; Robertson v. Dunn (1812) 6 N. C. (2 Murph.) 133, 5 Am. Dec. 525; Egerton v. Carr (1886) 94 N. C. 648, 55 Am. Rep. 630; Kisecker's Estate (1899) 190 Pa. 476, 42 Atl. 886.

In Phifer v. Mullis (1914) 167 N. C. 405, 83 S. E. 582, involving an instrument conveying all of the grantor's personal property at her death, it is said: "Where the instrument itself suggests uncertainty as to its character, parol evidence of facts and circumstances, as well as instructions given the draftsman, is competent to shed light upon the purpose of the maker. But such evidence is incompetent. where the instrument, upon its face, gives unmistakable evidence as to its legal character, as we think the instrument before us does." The instrument is held to be a will.

So, in Felbush v. Egan (1908) 221 Pa. 420, 70 Atl. 816, involving an instrument providing that the estate granted was to take effect upon the death of the grantor it is said that "where the language used is fairly capable of only one construction, as it is here, the intent of the maker must be gathered from his language. It is sometimes said that the question is not what he may have meant, but what is the meaning of his words, a most unfortunate form of expression, for the construction must always be according to his actual intent, whatever the words used; but, where the meaning of his words is clear, his intent is to be gathered solely from them. It is only where his words are ambiguous to the extent of being capable of more than one construction that resort can be had to other evidence, dehors the instrument, to discover his intent." Notwithstanding what is said here with respect to the lack of ambiguity in the words of the instrument in question, however, in Fellbush v. Fellbush (1906) 216 Pa. 141, 65 Atl. 28, reversing (1904) 31 Pa. Co.

Ct. 350, where this instrument is determined to be a deed, the court goes outside the instrument, and takes into consideration the delivery thereof in arriving at its conclusion.

And it is said in TRUMBAUER V. RUST (reported herewith) ante, 10, that the rule that the intention of the maker is to be gathered primarily from the language of the instrument does not preclude the court, in doubtful cases, from a consideration of the facts and circumstances under which the writing was made.

So, it is held in Noble v. Fickes (1907) 230 Ill. 594, 13 L.R.A. (N.S.) 1203, 82 N. E. 950, 12 Ann. Cas. 282, that parol evidence to establish the testamentary intention of the maker of an instrument in the form of a deed, plainly conveying a present interest, is inadmissible, in accordance with the parol evidence rule, it being only when the writing is of doubtful import that such evidence is admissible.

It is uniformly held that the instructions given to the draftsman by the maker of an instrument in the form of a deed, containing a clause postponing its taking effect until the maker's death, are admissible in evidence upon the question of the maker's intent. Sharp v. Hall (1888) 86 Ala. 110, 11 Am. St. Rep. 28, 5 So. 497.

In Anspach v. Lightner (1906) 31 Pa. Super. Ct. 218, evidence that the maker of the instrument in question did not want a will made is used.

And see Robertson v. Dunn (1812) 6 N. C. (2 Murph.) 133, 5 Am. Dec. 525, infra, III. c, 2, (v); Clayton v. Liverman (1846) 29 N. C. (7 Ired. L.) 92, infra, III. c, 2, (b); Re Belcher (1872) 66 N. C. 51, infra, III. c, 3, (a); Phifer v. Mullis (1914) 167 N. C. 405, 83 S. E. 582, supra, III. b, 9, (b); Leslie v. McKinney (1896) Tex. Civ. App. 38 S. W. 378, infra, III. c, 2, (d); De Bajligethy v. Johnson (1900) 23 Tex. Civ. App. 272, 56 S. W. 95, infra, III. c, 3, (e).

(d) Admissibility of direct evidence of maker's intent.

Where, in Sharp v. Hall (1828) 86 Ala. 110, 11 Am. St. Rep. 28, 5 So. 497, a subscribing witness to an instrument in the form of a deed, but reserving the use, control, and consumption of the property to the maker during her life, was permitted to testify as to the maker's intention in making the instrument, it is said that "the intention cannot be proved by a witness, speaking directly thereto." In that case, however, the objection was put on the ground that the testimony violated the rule against the variance of a written instrument by parol, and it was not sustained.

In the unreported case of Ward v. Campbell (1884) 73 Ga. 97, involving an instrument in the form of a deed, but containing words of a a testamentary nature, it is said in the syllabus that "it was not competent to prove, by one of the witnesses to this instrument, that the parties intended it as a deed."

c. Construction of specific language.

1. In general.

Broad general principles for the construction of instruments in the form of deeds, containing provisions postponing their taking effect till after the death of the maker, have been set out above, and very little disagreement has been found to exist among the courts with reference thereto. As has been repeatedly said by courts and text-writers, however, it is impossible to go farther in the matter of agreement, and the greatest apparent confusion is found to exist, not only between the specific applications of the general principles as made by different courts, but not infrequently among the applications of these principles made in the same jurisdiction. This is due in large measure to the fact that the same language, and the same circumstances surrounding execution, are rarely, if ever, found to exist in two different cases. While the courts may agree upon the general principles, each specific case must be decided upon its own facts, peculiar to itself and different, to a greater or

less degree, from the facts in any other case found in the books. Accordingly no rules further than those already set out are possible of deduction; and the formulation of none is attempted. The cases are set out in the following subdivisions, but no effort is made to distinguish, criticize, or discuss. To do so intelligently would be impossible. It may be said here, however, that the tendency of the courts is in the direction of greater liberality in construing instruments containing such provisions. The courts are coming more and more to construe instruments of the kind here under discussion, as deeds, and not as wills.

In this connection attention is called to the following language from the opinion of the Illinois supreme court in Young v. Payne (1918) 283 III. 649, 119 N. E. 612: "While it is true, as the deed states, that it was made in lieu of a will, yet such statement would not render the deed void as a testamentary instrument. As a matter of fact, most deeds of trust by which a trust is created to continue after the death of the grantor may be said to be, in a sense, testamentary in character, and made to avoid the making of a further disposition of the property involved in such trust by will; but such provision, so far as we are advised, has never been held to render an otherwise valid instrument void as a testamentary disposition of property, nor do we think such provision in this deed had that effect."

2. Language construed as passing
present interest.

(a) "At my death," contained in granting clause.

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

An instrument in the form of a deed is not converted into a will by the words, "at and after my death," following the words of grant, where the grantor in the same clause explains his intent as follows: "That is, I now give the . . . lands . . . only reserving my life estate in the same." Worley v. Daniel (1892) 90 Ga. 650, 16 S. E. 938. The court says: "She gives it to them 'now,' and reserves

‘only,' her life estate in the same.' The language last quoted is not repugnant to that which precedes it, but is simply explanatory, and the whole constitutes but one clause. The rule as to repugnant clauses is therefore inapplicable." And title in remainder in præsenti is held in Swails v. Bushart (1859) 2 Head (Tenn.) 561, to be conveyed by an instrument in the form of a deed, whereby property is given, sold, and delivered unto the grantee after the death of the grantor; and the instrument is held to be a deed, and not a will.

In Gay v. Gay (1899) 108 Ga. 739, 32 S. E. 846, an instrument stating that, in consideration of the support by the grantee of the grantor's wife during her widowhood, the grantor has "given, granted, bargained, and sold, at" his death, certain land, “to have and to hold . .at and after" his death, is held to be a deed.

So, a deed conveying and warranting lands "after my decease, and not before," is held in Owen v. Williams (1887) 114 Ind. 179, 15 N. E. 678, not to be testamentary in character, but to operate merely to postpone the grantee's use and enjoyment.

And it is said in Hollomon v. Hollomon (1857) 12 La. Ann. 607, that a deed conveying slaves at the death of the grantor and his wife is, “by the laws of Alabama, a donation of the property in the slaves to defendant [grantee], with a reservation of a life estate in the donor; or a gift of the property, subject to a loan for use, to the grantor, by which fee present passed to the donor at the date of the instrument."

And a grant, "at my death," of certain negroes, is held in Williams v. Sullivan (1858) 10 Rich. Eq. (S. C.) 217, to pass a present interest, and to be a deed.

An instrument in writing, delivered in the lifetime of the maker, and purporting to give, at the maker's death, in consideration of natural love and affection, all the property that came to the maker from a certain estate, with limitations over on the death of the donees without heirs, and containing covenants of warranty, is a deed,

.

it is held in Bethea v. Allen (1915) 101 S. C. 350, 85 S. E. 903, and not a will.

In Watson v. Watson (1885) 24 S. C. 228, 58 Am. Rep. 247, an instrument in which the maker recites that he has granted, and does at his death grant, certain property to his wife, is held to be a deed, and not a testament.

In Gregory v. Walker (1861) 38 Ala. 26, an instrument is held a deed, and not a will, where it is made in the form of a deed, in consideration of the regard entertained by the grantor for the grantees, and for the further consideration of $1 in hand paid, and conveys to the grantees, by the words of conveyance usually employed in deeds, certain real and personal property, “together with the right to control the same at" the death of the grantor.

So, an instrument in the form of a deed, conveying certain described land, "together with all the rights and privileges thereunto belonging, at my death, forever in fee simple," is held in Kytle v. Kytle (1907) 128 Ga. 387, 57 S. E. 748, to be a deed reserving a life estate, and not a will.

In Brice v. Sheffield (1903) 118 Ga. 128, 44 S. E. 843, an instrument is held a deed, which provides that "this is to certify that I have given my son

. . 10 acres of land . . . in consideration of building me a house, said land to belong to him at my death." In view of the delivery of the instrument, and the testimony of the grantee to the effect that the grantor had agreed to convey him the land, reserving only a life estate, the instrument is construed as conveying the title in præsenti with the right of possession postponed until the death of the grantor.

In Golding v. Golding (1854) 24 Ala. 122, the grantor, in an instrument in the form of a deed, provides: "Know all men by these presents, at my death, that I . . . do hereby give and grant unto my son my negro