Moye v. Kittrell

— Lumpkin J. By the Court. delivering the opinion. The only question we find it necessary to decide in this case is, whether the , aper offered by the defendants as evidence of their title for the property sued for, is a will or a deed? By it the intestate of the plaintiff declares that he freely gave and granted to the defendants, all of the property which he then possessed, with the exception of his bed and furniture, which he gave to two of his daughters, and fifty dollars [680] ■in cash to a grand-daughter, “to go into their possession at his death.” To have and, to hold absolutely, without any manner of condition whatever. The instrument was attested by two witnesses, one of them being a justice of the peace, and was recorded eleven days after its execution, being handed to the Clerk by Noah Kittrell, senior, the maker; and this has been held repeatedly to be tantamount to a delivery to the party himself The form of the instrument is that of a deed. And the form is evidence of the intention of the maker. But independent of this, and of the outside téstimony, which was rejected by the Court, by putting it upon record, the maker manifested hisjpurpose to part with the title to the property, and to make the paper irrevocable. The only reservation is, that the property was not to go into the possession of the donees till the death of the donor. It has been decided more than once by this Court, that it was competent for the donor to reserve a life estate, in the property conveyed, without making the paper testamentary. A reservation of the possession merely, is not equal to a life estate. If the words were doubtful, we should incline to that construction, which would support the instrument. And this can be done only by holding it to be a deed. For as a will, it must fail, wanting the necessary attestation. But we. are notj under the necessity of resorting-to this principle. This [is"a stronger case than many which have been adjudged byjthis Court to be deeds. We are constrained therefore to reverse the judgment of the Circuit Court. Judgment reversed;