Coulter v. Carter

*138 Griffith, J., delivered the opinion of the court. The question, and the only question, submitted for decision in this case is whether the instrument which is here copied in full is a deed or whether it is testamentary in character. The instrument, which was duly signed and acknowledged by the grantors and delivered to be recorded, is in the following words and figures: “For and in consideration of the sum of $1.00 cash in hand paid the receipt of which is hereby acknowledged, and the further consideration of love and affection we have for our daughter, We, J. J. Coulter and wife, Mrs. N. J. Coulter, do hereby bargain, sell, convey and warranty unto Eliza Coulter the following described lands situated in Jefferson Davis County, Mississippi, to-wit: SE% of the SE% less 10 acres- in the NE corner and 2% acres on the North side and the SW% of the SE% Section 20, Tp. 9 R 18 and the N% of the NE% less 5 acres Sec. 29, Tp. 9 Range 18 containing 142%' acres more or less. It is understood between the parties hereto that the grantors are to have the possession, control and occupancy of said lands during their natural life, and at their death the title to said lands shall vest in' the said Eliza Coulter, but not until the death of both grantors herein, does the title pass. “Witness our signatures this the 3 day of May A. D. 1921.” The fundamental difference between a deed and a will is that in order to be a deed the instrument must convey some estate of some kind effective upon the delivery of the instrument, whereas if no title of any kind is to pass -until the death of the grantor or grantors, the instrument is testamentary in character and must be authenticated and probated as a will, else it will be inoperative. There are more than twenty reported cases in this State wherein the question now before us has been directly involved, but the-case which comes nearest to the present is Mims v. Williams, 192 Miss. 866, 7 So. (2d) 822, and so *139 near that a sound distinction between them cannot be made. In that case the instrument was held to be testamentary in character; and we are of the opinion that the decision there is controlling here, and that accordingly the decree, which was to the opposite effect, should be reversed and the cause remanded. So ordered.