instrument a revocable effect, and it is held a will.

Seay v. Huggins (1915) 194 Ala. 496, 70 So. 113, involves an instrument containing words of present grant, bargain and sale, and the usual covenants of warranty. The instrument conveyed realty and all of the grantor's personalty, owned or to be owned by him. At the end of the instrument the grantor inserted the following clauses: "Provided, however, this deed shall not take effect until after my death and the death of my wife... It is expressly understood that I hereby reserve a life estate in said lands for myself and wife, with the right to use the rents, incomes, and profits therefrom the term of my natural life; and I reserve the right to sell or otherwise use said personal property as I see fit, during my natural life." In view of extraneous facts, such as various references to the instrument by the maker thereof as his will, and his retention of it for several years, the court pronounces the instrument a will.

In Baxter v. Chapman (1917) 147 Ga. 438, 94 S. E. 544, the instrument in question provided that "this deed of conveyance is not to take effect until after my death, but that, as long as I live, the said William S. Arnold [grantee], upon paying me reasonable rents for the same, is to merely occupy the premises by these presents conveyed; as my tenant,

and upon

my death I direct W. K. Hopper, to whom I intrust this instrument, to deliver the same to the said W. S. Arnold." The grantee died before the grantor, and delivery was never made to him. The instrument is held to be a will, and not a deed.

Under the Georgia Code, providing that "if the intention be to convey an interest, accruing and having effect only after his [grantor's] death, it [the instrument] is a will," an instrument in the form of a deed, containing a clause providing that "this deed is not to go into effect until after the death" of the testator, is held in Bright v. Adams (1874) 51 Ga. 239, to be a will, and not a deed.

The instrument in Cunningham v.

Davis (1884) 62 Miss. 366, conveyed certain real estate and all of the maker's personal property that he owned. or might own at the time of his death, and was upon the condition that "I reserve the right to alter, change, or entirely abolish this deed, if I so desire, during my life, and that I retain all of the said property during my life, and have the control of the same, and that this deed do not take effect until after my death, and that, after my death, my wife .. pay all of my debts, and the remainder over paying my debts to be hers." The court says: "The provision in these words: 'And that this deed do not take effect until after my death,' coupled with the direction that the object of the bounty of the maker of the instrument should pay all his debts, and have only the remainder of his property, convinces us that the paper was testamentary in its character."

An instrument which, though called a "contract," purports to bargain, sell, and convey real estate, there being, however, a provision that "this conveyance is not to take effect until the death of the first party, at which time it shall be in full force and effect," is not effective as a conveyance of a present interest in the property. Kelly v. Covington (1918) 119 Miss. 658, 81 So. 485.

In Givens v. Ott (1909) 222 Mo. 395, 121 S. W. 23, an instrument providing that "this conveyance [is] not to take effect till our death, and that of the survivor of us," is held to pass no present interest, and to be testamentary in character.

And on the authority of the preceding case and other Missouri cases, in Terry v. Glover (1911) 235 Mo. 544, 139 S. W. 337, an instrument in the form of a deed, providing, "this deed not to go into effect until after the death" of the grantor, is held to be testamentary.

If the words: "This deed not to take effect until after my death," contained in an instrument in the form of a deed, are not conclusive that the instrument is a will, it is said in De Bejligethy v. Johnson (1900) 23 Tex. Civ. App. 272, 56 S. W. 95, that, con

strued in the light of the express testimony of the maker that he had requested the scrivener to write a will, the court below was justified in finding the instrument to be a will, and not a deed.

So an instrument purporting, in consideration of $1 and love to the grantee, to sell and convey to him certain property, which declares all instruments previously made, testamentary or otherwise, to be of no. effect, provided, however, that "not until after my death shall this deed be of effect," and that if the grantee should die before the grantor, then the land should revert to the latter, was held in Ihihi v. Kahaulelio (1920) C. C. A. —, 263 Fed. 817, to be of a testamentary character, and not a deed.

An instrument in the form of a deed, containing a provision that "this is to take effect only after the death" of the maker, is held in SIMPSON v. MCGEE (reported herewith) ante, 4, to evince an intention on the part of the maker that the instrument is not to take effect, for any purpose, until after the maker's death, and to be, accordingly, testamentary in character.

So, an instrument providing that "this deed shall take and be in effect on and after the death of myself and wife" is held in Cox v. REED (reported herewith) ante, 5, following the preceding case, to pass no present interest and to be testamentary.

By instrument in the form of a deed, in Armstrong v. Armstrong (1874) 4 Baxt. (Tenn.) 357, all of the grantor's estate, both real and personal, is conveyed. By a clause in the conveyance, it is provided that the instrument is "to have effect from and after my death." The court is of the opinion that "the clearly expressed intention that it is to take effect upon the death of Armstrong conclusively fixes the character of the writing, and shows it to be a testamentary paper."

So, a deed, which, by its terms, is made "with the full understanding, and upon the condition, that the same shall take effect from and after the death of the said grantor," is construed in Sappingfield v. King (1907)

49 Or. 102, 8 L.R.A. (N.S.) 1066, 89 Pac. 142, affirmed on rehearing (1907) 49 Or. 109, 90 Pac. 150, to be testamentary in character, and revocable.

And, although in the form of a deed, an instrument providing that it is "to take effect and be in full force, from and after" the death of the grantor, is testamentary in character. Pinkham v. Pinkham (1898) 55 Neb. 729, 76 N. W. 411.

Where, in Lincoln v. Felt (1902) 132 Mich. 49, 92 N. W. 780, proponent was offering for probate a lost instrument in the form of a deed, which, it appeared from the testimony, contained a clause providing that it was to take effect after the maker's death, it is held that "if the deed was in form a deed to take effect after the death of the grantor, it is clear that proponent was entitled to the probate of it as a will."

In Ransom v. Pottawattamie County (1915) 168 Iowa, 570, 150 N. W. 657, the deed involved contains a clause providing that "this indenture [is] to be effective after my death, on the condition that Pottawattamie county, Iowa, pay any debts that I may be owing at that date, and pay my funeral expenses." In holding that the instrument creates no interest in the grantee in præsenti, it is said: "She [grantor] attached conditions to the gift, to be performed after her death, the burden of which could not be determined until after her death, and upon the performance of which the instrument became effective. We think there was an intent on the part of the grantor that the instrument should not become effective as a conveyance until after her death, and until the performance of the conditions named, which could not be ascertained, or known, or performed, until after her death." The same instrument is further discussed in Re Bybee (1917) 179 Iowa, 1089, 160 N. W. 900.

In Arnold v. Arnold (1879) 62 Ga. 628, an instrument resembling a deed, and purporting to convey certain shares of stock, contained a clause reserving the control thereof, and the dividends, during the grantor's life,

and providing that, "immediately on his death, this transfer is to take effect, and the transfer and delivery so intended, to be perfected and completed." The purpose of the grantor, the court says, "was, to make as full and complete a transfer as he could, consistently with postponing the actual and effective passing of the title until his death. He wanted to retain the stock in his own name, and for his own use while he lived, and then for his illegitimate children to have it through a regular tranşfer. . . . There is no substantial difference between such a scheme and the ordinary bequests in a will. In either case, the owner of the property holds on until death shakes him loose, and he appoints beforehand who is to succeed him." The instrument is held to be a will.

In Ackman v. Potter (1909) 239 Ill. 578, 88 N. E. 231, involving a deed containing a clause providing that the instrument is to take effect at the time of the grantor's death, and that the grantee takes only the remainder after the grantor's death, it is said that "a deed of land which is not to take effect until the death of the grantor is void, as being an attempt to make a testamentary disposition of property, without complying with the Statute on Wills."

A writing under seal in the form of a deed, executed by a husband and wife, and purporting to convey to their children by the words: "Have given, granted, and bestowed, and by these presents, do give, grant, and bestow," all the real and personal property constituting the wife's separate estate, is held to be a will, and not a deed, where the grant is "under the following restrictions, reservations, and conditions, viz.: All the foregoing property, both real and personal, is to be held, owned, and enjoyed by the said Belinda [grantor], during her natural life, and at her death, the foregoing gift is to take effect," and "it is further by these presents distinctly understood that the foregoing gift is not by any means to take effect until the death of the said Belinda, who reserves a life estate in all of the said

property," and the grantor reserves the right to select any portion of the property conveyed, for the purpose of bestowing it upon after-born children, and also of selling the real estate upon a certain contingency, and goes finally to the extent of designating an executor. Mosser v. Mosser (1858) 32 Ala. 551.

So, an instrument purporting on its face to be a deed, conveying by present words of gift certain slaves to various grantees, in consideration of natural love and affection, but reserving the right of ownership and use until the grantor's death, at which time it is declared that "this deed shall take effect," is a will, and not a deed. Walker v. Jones (1853) 23 Ala. 448.

And, although in the form of a deed, an instrument is a will, where it conveys "all manner of property I now or may hereafter own," and contains no covenants of warranty, where it reserves not only the lifetime enjoyment of the property, but also enough of the property itself to pay the grantor's debts, and where it provides further that the instrument is "to take effect absolutely at my death, and to be valid and conclusive." Crocker v. Smith (1891) 94 Ala. 295, 16 L.R.A. 576, 10 So. 258.

In Dye v. Dye (1899) 108 Ga. 741, 33 S. E. 848, an instrument reciting a consideration, and and containing the usual granting and habendum clauses, is held to be testamentary in character, where it contains a final clause in which the grantor reserves the control of the land, the right to the rents and profits, and the right of revocation, and in which it is stated that the instrument is "to have full force and effect at the death" of the testator.

And in the case of Ward v. Campbell (1884) 73 Ga. 97, where an instrument in the form of a deed conveys realty, and "also all the live stock, household and kitchen furniture, and all moneys due that I may have at my death, after the payment of my just debts and funeral expenses," and provides that "this deed of gift" is "to take effect at my

death," it is held that the instrument is testamentary in character.

Where it is provided in an instrument, otherwise in the form of a deed, that the "intention of this instrument of writing is such that Mrs. Ann Ellison relinquishes her entire right at her death, then this deed is to come immediately into effect, but not until then," it is held in Murphy v. Gabbert (1901) 166 Mo. 596, 89 Am. St. Rep. 733, 66 S. W. 536, that "the words in the deed

are

such an emphatic declaration that the deed was to come immediately into effect upon the death of the grantor, but not till then," that the instrument must be deemed as passing no present interest, but as being testamentary in character.

The words, "this deed is not to be operative until after the death of the parties of the first part," contained in a deed, "cannot be said to apply simply to the enjoyment and possession of the property, but to the entire force and effect of the instrument, and are repugnant to the creation of a present interest.” Leonard v. Leonard (1906) 145 Mich. 563, 108 N. W. 985. The instrument is held testamentary and revocable in character.

And in the subsequent cases of Re Dowell (1908) 152 Mich. 194, 115 N. W. 972, and Moody v. Macomber (1910) 159 Mich. 657, 134 Am. St. Rep. 755, 124 N. W. 549, involving similar provisions, the preceding case is cited and followed.

See Niccolls v. Niccolls (1914) 168 Cal. 444, 143 Pac. 712, infra, III. c, 3, (f); Leaver v. Ganss (1883) 62 Iowa, 314, 17 N. W. 522, infra, III. c, 3, (q); Goodale v. Evans (1914) 263 Mo. 219, 172 S. W. 370, supra, III. c, 3, (b); Epperson v. Mills (1857) 19 Tex. 65, supra, III. c, 3, (d).

But see Trawick v. Davis (1888) 85 Ala. 342, 5 So. 83.

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

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

An instrument under seal in the form of a deed of gift in consideration of the grantor's affection for the

grantee, who is his grandson, and the present payment of $5, conveying "$1,500 in cash, to be paid to him out of my estate at my death, by my executor or administrator," is held in Kinnebrew v. Kinnebrew (1860) 35 Ala. 628, to be a will, inasmuch as there is nothing in the grant to prevent the grantor from disposing of the whole of his estate during his lifetime, and thus defeating the grant. "If there had been a conveyance of all the property which the maker of the instrument might, at his death, leave, it would have been clearly testamentary," the court says. "The character of the instrument cannot be changed because it is a charge upon all the property, instead of a conveyance of the property itself." The question is not affected, it is said, by the fact that the same instrument disposes of a slave by a present deed of gift, and is construed, so far as it relates to the slave, to be a deed.

So, an instrument reciting a consideration, and containing words of grant and conveyance, is held in Hall v. Bragg (1859) 28 Ga. 330, to be a will, and not a deed, where the granting clause confers on the grantees "all the property that he, the said George Bragg, owns and is possessed of at his death;" and this is deemed the case, whether the phrase, “at my death," is viewed as relating to the words, "owns and is possessed of," or as referring back to the words of granting and conveyance.

.

And an instrument which does not purport to convey any property within the ownership of the maker at its date, but gives "the one half of all the property of that he may die seised or possessed of," is, although in the form of a deed, testamentary in character, and operates only as a will. Watkins v. Dean (1837) 10 Yerg. (Tenn.) 321, 31 Am. Dec. 583.

In Re Lautenshlager (1890) 80 Mich. 285, 45 N. W. 147, instruments in the form of warranty deeds of land, containing the words, "Also one half of all the personal property and money left at my death," are held to be wills, having been signed in the

presence of two competent witnesses, who signed in the maker's presence, and at his request, and having been retained by the maker until his death.

In holding a conveyance of "all the real and personal estate that I shall own at my decease" to be testamentary in character, the court, in Ison v. Halcomb (1910) 136 Ky. 523, 124 S. W. 813, says: "Nothing that the grantor owned at the time the deed was made passed under the deed. All the property that he then had remained his, and subject to his disposition, just as it was before. The only thing that the deed operates upon is the real and personal property which he shall own at his death.

The operation of the deed is wholly contingent upon his having the property at his death. It therefore passed, at its delivery, no interest in any property he then owned, and would be operative in no way until his death."

In Roth v. Michalis (1888) 125 Ill. 325, 17 N. E. 809, an instrument in the form of a deed of trust conveying an undivided half of the real and personal property which the grantor might leave at the time of his death, after the payment of his just debts, is held to pass no present estate or interest, and to be void as a deed. The instrument is not found to be a will, because of the lack of the proper execution as such, and not because the language is not sufficient for that purpose.

And in Brewer v. Baxter (1870) 41 Ga. 212, 5 Am. Rep. 530, an instrument in the form of a deed, conveying all the property that the maker thereof "may die possessed of," is viewed as conveying no present interest, and is held to be a will.

Niccolls v. Niccolls (1914) 168 Cal. 444, 143 Pac. 712, involves an instrument purporting to be a trust deed, and containing a statement that it is to take effect only upon the death of one of the grantors, and upon the property that the grantors may have and own at the time of the death of the said grantor. The court says: "Clearly this did not convey any pres11 A.L.R.-7.

ent interest in the property of the trustors. It only related to the property which they should possess at the time of the death of Robert [grantor]. It purported to convey no interest in any property owned by them at the date of its execution, and the mere fact that they possessed the same property then which was theirs when Robert Niccolls died is a coincidence which in no manner alters the purpose or effect of the instrument. While it is competent to create a trust which shall take effect after the death of a grantor, nevertheless there must be some interest or estate which passes at the time of the execution of the deed." The instrument is held testamentary in character, and not a deed.

In Robinson v. Schly (1849) 6 Ga. 515, an instrument in the form of a deed, disposing of the real and personal property of which the grantor "may be possessed" at her death, is held to be a will, and not a deed.

It is held in Poore v. Poore (1895) 55 Kan. 687, 41 Pac. 973, that an instrument, in writing, denominated on its face a will, which purports to "give and bequeath all our real estate and personal property, of which we die possessed" to a certain person, "to hold and own and possess forever," is testamentary in character, no present interest being intended to pass thereby.

See Gage v. Gage (1841) 12 N. H. 371, in which the testamentary character of an instrument in the form of a deed, but purporting to convey all the personal property of which the maker shall die seised, is conceded.

And see Nichols v. Chandler (1875) 55 Ga. 369, infra, III. c, 3, (h); Sperber v. Balster (1881) 66 Ga. 317, supra, III. c, 3, (b); Ward v. Campbell (1884) 73 Ga. 97, supra, III. c, 3, (e); Tuttle v. Raish (1902) 116 Iowa, 331, 90 N. W. 66, infra, III. c, 3, (h); C nningham v. Davis (1884) 62 Miss. 366, supra, III. c, 3, (e); Evans v. Evans (1910) 69 Misc. 86, 125 N. Y. Supp. 960, infra, III. c, 3, (h); Shingler v. Pemberton (1832) 4 Hagg. Eccl. Rep. (Eng.) 356, infra, III. c, 3, (i).

See also Kyle v. Perdue (1888) 87