Ala. 423, 6 So. 296; Kaufman v. Ehrlich (1894) 94 Ga. 159, 21 S. E. 377; Henry v. Ballard (1816) 4 N. C. (2 Car. Law Repos.) 595.

(g) Conveyance of property which may come into maker's ownership during his life.

In Harper v. Reaves (1902) 132 Ala. 625, 32 So. 721, a clause in an instrument in the form of a deed, describing the property conveyed as that which "I now possess or may come into the possession of during my natural life," is held not to be inconsistent with the construction of the instrument as a deed.

See also Gillham v. Mustin (1868) 42 Ala. 365, infra, IV. c, 5; Crocker v. Smith (1891) 94 Ala. 295, 16 L.R.A. 576, 10 So. 258, supra, III. c, 3, (e); Seay v. Huggins (1915) 194 Ala. 496, 70 So. 113, supra, III. c, 3, (e); Sperber v. Balster (1881) 66 Ga. 317, supra, III. c, 3, (b); Epperson v. Mills (1857) 19 Tex. 65, supra, III. c, 3, (d). (h) Conveyance of property left after payment of maker's debts.

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

Where an instrument in the form of a deed conveys a tract of land and certain personal property, "after burial expenses and all my just debts are paid, only reserving to myself the use and control of said property during my natural life," and provides, further, that, in addition to the personal property specified, the grantees are to have "all other property that I may be possessed of: my death," it is held in Nichols v. Chandler (1875) 55 Ga. 369, that, although the instrument, standing alone, may be doubtful of interpretation, when it is construed in the light of the failure of the grantor to deliver it to the grantees, and of her placing of it in the hands of one of the witnesses, to keep until her death, or until she shall call for it, all doubt is removed, and it is clearly a will.

So, in Tuttle v. Raish (1902) 116 Iowa, 331, 90 N. W. 66, an instrument providing that, in the event of the maker's death without children, after

the payment of all just debts and funeral expenses and the cost of a monument, the maker does "hereby make and constitute my wife the sole owner in her own right of all our property that we may be possessed of," is held to be testamentary in character. In light of the fact that the maker retained possession and control until his death, "no very careful analysis of the terms of this writing is needed," in the opinion of the court, "to show that the intent to provide for the wife . was sought to be effected through an instrument which was to go into effect only upon the decease of the grantor, and that during his life she took nothing."

Barnes v. Stephens (1899) 107 Ga. 436, 33 S. E. 399, involves an instrument containing three clauses, the first of which, in the form of a deed of gift, purports to convey title to land, the second of which declares that the grantee shall have and hold the land, together with certain described personal property not referred to in the first clause, "the burial expenses and just debts of" the maker "to be paid first," and the third clause of which declares that all the maker's other property of every kind shall be divided among his heirs, calls this disposition of his property a "division," and then declares all other "wills and conveyances" to be null and void. The instrument is held to pass no present title, and to be a will.

In Evans v. Evans (1910) 69 Misc. 86, 125 N. Y. Supp. 960, an instrument in the form of a deed conveyed the grantor's real estate and the personalty that the grantor owned at the time of execution, "or that may take the place thereof at the time of my death." The transfer was made subject to the payment by the grantee of the grantor's debts, his funeral expenses, and certain sums to persons designated. The instrument is held to be testamentary.

And see Crocker v. Smith (1891) 94 Ala. 295, 16 L.R.A. 576, 10 So. 258, supra, III. c, 3, (e); Ward v. Campbell (1884) 73 Ga. 97, supra, III. c, 3, (e); Roth v. Michalis (1888) 125 Ill.

325, 17 N. E. 809, supra, III. c, 3, (f); Ransom V. Pottawattamie County (1915) 168 Iowa, 570, 150 N. W. 657, supra, III. c, 3, (e); Cunningham v. Davis (1884) 62 Miss. 366, supra, III. c, 3, (e).

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

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

purchase

A deed of trust executed by a husband and wife, wherein the trustee is directed to sell the trust property, pay the grantor's debts, purchase other property with the surplus, and pay the income to the grantor and his wife during their lives, is held, in Gingrich's Appeal (1889) 1 Monaghan (Pa.) 301, 17 Atl. 33, to be testamentary and revocable as to the children, in whom, by the terms of the deed, the property is to vest "immediately after the death of the survivor."

So, where the maker of an instrument in the form of a trust deed, reserving to himself the use of the property during his life, together with a power of revocation, and raising certain trusts therein at his death, subsequently makes a will confirming the trusts, it is held in Atty. Gen. v. Jones (1817) 3 Price, 368, 146 Eng. Reprint, 291, that the two instruments are to be construed together, and are both to be taken as testamentary. This case, however, is criticized in Tompson v. Browne (1835) 3 Myl. & K. 32, 40 Eng. Reprint, 13, 5 L. J. Ch. N. S. 64, supra, III. c, 2, (j).

And in Knight's Goods (1829) 2 Hagg. Eccl. Rep. (Eng.) 554, an instrument in the form of a deed, conveying property to trustees for the use of the grantor and his wife, and, upon the death of the survivor, to be divided among certain persons, is admitted to probate, it being urged that the instrument was testamentary in effect, not being intended to operate until after the death of the maker.

In Shingler v. Pemberton (1832) 4 Hagg. Eccl. Rep. (Eng.) 356, an indenture by which the maker conveyed the personal estate which he then had or should be entitled to at his death, upon trust for his own use during his

life, and to other persons at his death, was admitted to probate as testamentary.

a

See Peacock v. Monk (1748) 1 Ves. Sr. 127, 27 Eng. Reprint, 934, involving an instrument designated as deed, which conveys a sum of money to a trustee, who is bound to pay the maker an annuity for life, and afterwards to make disposition of the principal and the income to other designated persons. The maker made a will on the same day upon which he executed the deed. This fact, taken together with the consideration that revocation might be effected through collusion with the trustee, leads the court to view the instrument as testamentary.

And see Hixon v. Wytham (1675) 1 Ch. Cas. 248, 22 Eng. Reprint, 784, Finch, 195, involving an instrument in the form of a trust deed to a trustee of property on trust to sell after the maker's decease, the proceeds to be divided among designated persons, where the defendants, who at first claimed the instrument to be a deed, yielded the point.

See also Milnes v. Foden (1890) L. R. 15 Prob. Div. (Eng.) 105, 59 L. J. Prob. N. S. 62, 62 L. T. N. S. 498; Johns v. Bowden (1914) 68 Fla. 32, 66 So. 155, infra, III. c, 3, (j).

(j) Reservation of power of revocation during maker's life.

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

A conditional deed of gift of all money due or to become due to the grantor is held in Gillham v. Mustin (1868) 42 Ala. 365, to be a will, not a deed, although the evidences of the debt, together with the conveyance, were delivered to the grantees, where the deed contains the following qualification: "And in the event I shall die or be killed in the casualties of the war, whither I am now going, then all such moneys are to become the property of my said four sisters, to be equally divided between them; but if I should survive and return, then this instrument is to be null and void.” "Where there is a general reservation," the court says, "or something

like a reservation, of the maker's right to deal with the property as his own, notwithstanding the instrument, and no conclusive effect can be given to it until the death of the maker, the law regards the instrument as testamentary."

So, a trust deed reserving to the grantor the use, possession, and profits during his life and, in addition thereto, the right of directing conveyances thereof to any person desired, is held in Johns v. Bowden (1914) 68 Fla. 32, 66 So. 155, not to convey a vested right in the beneficiaries named in the deed, "but a contingent interest, subject to the right of the grantor to direct a conveyance of the entire property to others at any time during the grantor's life," and to be in the nature of a testamentary disposition. The court says that, "in effect, the entire beneficial interest and right in the specific property remained in the grantor, and could not pass at all, without his consent, till after his death, thus making the trust deed not an absolute conveyance of a vested right, in præsenti, of the property."

In Ellis v. Pearson (1900) 104 Tenn. 591, 58 S. W. 318, the maker of the instrument gives to his wife, "after my [his] death," certain land, and reserves the right "to sell or dispose of the above-described land till my [his] death," providing that, when he so sells or conveys the land, "this gift is of no effect." The court says: "He [grantor] retains full dominion over the property, with the power to defeat his gift by deed or will, properly executed. It is only after his death, it remaining undisposed of by him to that time, that the wife's right or estate becomes effectual. This being so, the paper is testamentary in character, and not a deed."

An instrument filled out on a printed form of a deed of conveyance, reciting a consideration, containing words of present grant, habendum and tenendum clauses, and a covenant of warranty, signed, acknowledged, delivered, and recorded, is not a deed vesting a present estate, but a will, it is held in Wren v. Coffey (1894)

Tex. Civ. App., 26 S. W. 142, where the interest conveyed is "all of our right, title, and interest in and to our homestead should we not sell or dispose of the same before death." The language of the instrument, it is said, "is not a mere reservation of the right to use and occupy during the lifetime of the makers, but is an express retention of the power of alienation during their lifetime. It was, in effect, a declaration of intention that the conveyance should not have the effect to devest title out of the makers, . . during the lifetime of such makers."

In Lacy v. Comstock (1895) 55 Kan. 86, 39 Pac. 1024, involving an instrument in the form of a deed, reserving the rents and profits of the land conveyed for the grantor's lifetime, and also the right of disposition of the premises during the grantor's lifetime, it is said obiter, by the court, that "it is urged with much plausibility that the instrument is testamentary in its character."

See Mosser v. Mosser (1858) 32 Ala. 551, supra, III. c, 3, (e); Seay v. Huggins (1915) 194 Ala. 496, 70 So. 113, supra, III. c, 3, (e); Dye v. Dye (1899) 108 Ga. 741, 33 S. E. 848, supra, III. c, 3, (e); Cunningham v. Davis (1884) 62 Miss. 366, supra, III. c, 3, (e); Roberts v. Coleman (1892) 37 W. Va. 143, 16 S. E. 482, infra, III. c, 3, (x); Thorold v. Thorold (1809) 1 Phillim. Eccl. Rep. (Eng.) 1, supra, III. c. 3, (a).

(k) Conveyance conditional on survivorship of grantee.

For cases construing instrument as passing a present interest, see supra, III. c, 2 (1).

The instrument, otherwise in the form of a deed, under discussion in Aldridge v. Aldridge (1906) 202 Mo. 565, 101 S. W. 42, contains the following provisions: "On this condition, however, that if I' . . outlive the said Amelia J. Aldridge [grantee] the land reverts back to me in fee: That if I should die first, then the said Amelia J. Aldridge shall have this land." The instrument is held to be testamentary.

In Pelley v. Earles (1900) 107 Ky. 640, 55 S. W. 550, an instrument giv

ing a sum of money to a certain woman, "to support her if she should be the longest lived," and providing that "this obligation is not to be sold nor assigned, nor no attempt [made] to collect it in my lifetime," is held to be testamentary, and subject to probate.

A provision in a warranty deed that it shall be void in case the grantee dies before the grantor renders the instrument testamentary in character and inoperative for want of witnesses, notwithstanding that it was executed shortly after the grantor had suffered a stroke, and in consideration of the care and kindness of the grantee. Chaplin v. v. Chaplin (1919) 105 Kan. 481, 184 Pac. 984.

And see Thomas v. Byrd (1916) 112 Miss. 692, 73 So. 725.

See also Hershy v. Clark (1879) 35 Ark. 17, 37 Am. Rep. 1, supra, III. c, 2, (1); Bigley v. Souvey (1881) 45 Mich. 370, 8 N. W. 98, infra, III. c, 3, (0); Welch v. Kinard (1843) Speer's Eq. (S. C.) 256, supra, III. c, 3, (a).

(1) Conveyance conditional on maker's failure to attain majority.

A written instrument bearing the form of a deed, but containing words. of gift only, and not of grant or conveyance, and giving to the guardian of the grantor all the money belonging to him in the guardian's hands, provided the grantor does not live to be twenty-one years of age, is held in Daniel v. Hill (1875) 52 Ala. 430, to be a will, and not a deed. "The death of the testator alone can operate to create any interest in the donee, and it is, of consequence, a will," is the reason given by the court.

(m) Provision that property is to be divided among grantees at maker's death.

An instrument in the form of a trust deed, providing that, in a certain contingency, the property conveyed shall revert back to the grantor, and that, after the grantor's death, it shall then be divided between certain persons, is held in Mallery v. Dudley (1848) 4 Ga. 52, to be a will, and not a deed, the interest conveyed to the last-men

tioned persons not passing until after the grantor's death.

See Barnes v. Stephens (1899) 107 Ga. 436, 33 S. E. 399, supra, III. c, 3, (h).

(n) Provision that title is to vest or pass upon maker's death.

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

to

until the death of

The instrument in Boon v. Castle (1908) 61 Misc. 474, 115 N. Y. Supp. 583, although in the form of a deed, contained the following clause: "This conveyance is made and delivered upon the express understanding and agreement that no title to or interest in any of the foregoing described property shall pass from the grantor the grantee said grantor and all of the rents and income of said property shall belong to and be the property of said [grantor] for and during his entire lifetime, and said [grantor] shall have the exclusive control, management, and care of all of said described real estate until his death, and, upon the death of grantor, said grantee shall become the absolute owner in fee simple of all of the foregoing described real estate and property, subject to any and all encumbrances and taxes, and also subject to all the debts and funeral expenses of said grantor." The instrument is held of testamentary character.

Reed v. Hazleton (1887) 37 Kan. 321, 15 Pac. 177, involves a writing not in the form of a deed, and not containing words of present grant or conveyance. It provides that the maker will, during his lifetime, "retain full and peaceful possession," that the grantee shall have his home with the grantor, and that after the grantor's death, the right to the land shall vest in the grantee. The instrument is held to be testamentary, there being no provision with respect to the passing of title which has a present operation. The decision in this case is approved and adhered to in a later case in (1891) 46 Kan. 73, 26 Am. St. Rep. 86, 26 Pac. 450.

The instrument in Wheeler v. Durant (1851) 3 Rich. Eq. (S. C.) 452,

while containing words of present gift, resembled a will in that gifts were made in different clauses to a number of donees. In the final paragraph trustees were appointed, "with the full understanding that the above property does not vest in another [any] of the parties until my death." The instrument is held to be testamentary.

In Glover v. Fillmore (1913) 88 Kan. 545, 129 Pac. 144, a widow entered into an "agreement for maintenance," by which she was to furnish her land for the joint use of herself and a relative, she having the right to live upon the land during her life, the relative agreeing to occupy and cultivate the land, keep the premises in repair, pay the taxes, and maintain and support the widow. In the agreement she covenants that, "at and upon her death, this instrument shall stand for, convey, and vest in the said [relative] the fee-simple title and estate," in the same manner as if a good warranty deed, upon sufficient consideration, had heretofore been made. She retains the option to terminate the contract, upon the failure of the relative to carry out his part thereof, in which event she was to be returned to possession of the land. The instrument is held to be testamentary in character.

A conveyance providing that "this conveyance is placed in escrow, and shall be valid to pass title to said lands upon its delivery to said grantee at or after my decease," is held, in Wilson v. Carter (1906) 132 Iowa, 442, 109 N. W. 886, not to pass a present interest in the land.

(0) Provision that property shall continue as maker's during his life.

In Bigley v. Souvey (1881) 45 Mich. 370, 8 N. W. 98, an instrument in the form of a deed contained the condition that "the conveyance of land herein named shall be and continue the property of the first party during his lifetime, and the remainder to said second party immediately at the death of said first party. But, in the event of the death of the second party before the said first party, then the estate herein shall go to said first party as before."

The instrument is held to be testamentary, and to pass no title whatever. A clause, reading: "N. B.-The said Abner Lee [grantor] holding in reserve all the within-named estates, both real and personal, during the natural life of the said Abner Lee," has the effect, it is held in Carlton v. Cameron (1880) 54 Tex. 72, 38 Am. Rep. 620, of rendering an instrument a will, although in the form of a deed. (p) Provision that property shall not be disposed of during maker's life. Where, in Siler v. Jones (1908) 33 Ky. L. Rep. 317, 110 S. W. 255, the instruments in question contain the provision that the property shall not be disposed of during the life of the grantor, except with her consent, it is said that "the very language used in drafting the writings shows that the grantor regarded them as testamentary."

(q) Provision that grantee shall have no interest during maker's life.

A conveyance in the usual form, purporting to convey real estate, but containing clauses providing that the effect thereof is "to commence after the death of both of said grantors," and that it is agreed "that the grantee shall have no interest in the said premises as long as the grantors or either of them shall live," does not pass any present interest, it is held in Leaver v. Gauss (1883) 62 Iowa, 314, 17 N. W. 522, and is testamentary in character. "A declaration that the grantee takes no interest during the life of the grantor is equivalent," the court thinks, "to a declaration that no estate is created."

(r) Provision that grantee is to become owner upon maker's death. For cases construing instrument as passing a present interest, see supra, III. c, 2 (r).

In Tuttle v. Raish (1902) 116 Iowa, 331, 90 N. W. 66, an instrument providing that, in the event of the maker's death without children, after the payment of all just debts and funeral expenses, and the cost of a monument, the maker does "hereby make and constitute my wife .. the sole owner ir her own right of all our property