Daniel v. Veal

By the Court. Jenkies, J., delivering the opinion. The first question presented for our consideration in this case, by counsel for plaintiffs in error, is, that the instrument of writing relied upon by the claimant, is a testamentary paper and not a deed, and therefore not admissible in evidence as a muniment of title until admitted to probate as a will in the Court of Ordinary. It is very true that the character of an instrument does not at all depend upon its form, nor does the fact that the maker called it a deed, or that he believed it to be a deed, or that he delivered it, and caused it to be recorded as a deed, make it so. Whether it be a will or a deed depends upon its effect and operation, to be determined by its own terms. [592] ■ 1. If from, them it appear that the donor intended that the title to the property specified should remain in him until his death, and then pass to the donee, it is a testamentary paper, whatever be its form. 2 Vesey, Jr., 230-2. Speers (S. C. R.) 230. 2 Ga. Reports, 31. 8 Ibid, 450. 10 Ibid, 506. 20 Ibid, 707. If, on the contrary, the terms clearly indicate an intention that the title shall pass eo instanti that it is executed, it is a deed, notwithstanding the enjoyment be postponed : Provided the essential requisites of a deed be not lacking. Furthermore, if the instrument be a conveyance of personal’ property, the title to which may pass without the solemnities of a deed, the lack of seal is immaterial, but in such case the same rule distinguishing between a will and a gift in presentí applies. The language of the instrument now under consideration is, “I hereby give and convey.” The present tense is used, and there is nothing whatever in the context which imports an intention that the title shall remain in the donor one instant after the execution of the instrument. There were two donees, and all that intervenes between the first and the last clause was manifestly intended to determine what interest each donee should take under future contingencies. None of these provisions (preceding the last clause, which will be separately considered) contemplate any continuing or resulting interest in the donor. 2. The paper having been signed, was delivered, as we must suppose, from the fact that it comes from the possession of the donees, and of the fact of delivery there is no contest. . The paper recites the fact that the slave in question was in possession of one of the donees at the time of the execution, which is equivalent to a formal delivery of the slave, and this strengthens the presumption that the intention was to pass the title in presentí. There is, therefore, nothing whatever in the transaction which imparts to the act of the donor a testamentary character. But it is said that if the paper be not a will it is certainly no deed. [593] The chief reliance in support of this position is, that it has no seal, but the use intended to be made of this lack is to show that it was susceptible of being revoked without solemnity of an instrument under seal, and was in fact subsequently revoked. We did not' understand the counsel to insist that as a gift of personalty it was invalid for lack of a seal. He does insist, however, that it conveys no gift, and can only be considered as a loan, if of any validity. We find in this instrument no words importing a loan at the will of the maker, nor any limiting the use and enjoyment of the property to a specified time. There are as already remarked, words amply sufficient to pass the property by gift, as “ I give,” “ I convey.” 3. The last clause of the instrument is in these words: “ hereby reserving to myself the right of revolting this deed of gift” On the trial in the Court below, the plaintiff in error offered to prove certain subsequent acts of the donor, amounting, as he contends, to a revocation. That evidence having been objected to, was rejected by the Court, and to that ruling he excepts. Counsel for the defendant in error insists that the evidence was properly rejected: 1. Because the reservation of the power to revoke was void. 2. Because the acts sought to'be proven did not amount to a revocation. If the first position be tenable, it will render the consideration of the second unnecessary. It will be observed that by this clause the donor treats the instrument not as a memorandum of a loan, nor yet as a will, but as “deed of gift,” and we have already indicated, that in effect, we think, he correctly characterized it; that it as effectually passed the title to the slave as a technical deed of gift would have done. It is an admission of a; perfect gift, and an attempted reservation of the power to invoke. Without the reservation, it will be conceded, there would have been no power to revoke. But is this power to revoke consistent with the operative portion of the instrument ? He obviously meant to convey the title to the [594] donees; he admits that he had done so, but he reserves the right to revoke the instrument, to annul the act. In the absence of any reservation, it is conceded (by him) that the title of the donees is perfect. A perfect title implies absolute dominion in the owner over the subject. But if after the execution of the instrument, and the delivery of it, and of the property, ho had the power of revocation, his was the controlling will—his the dominion. The general rules governing the construction of deeds are applicable to this instrument. Our opinion is, that this clause reserving the right of revocation, is inconsistent with the operative portion of the instrument; incompatible with the estate conveyed, and therefore void. “ When clauses are repugnant and incompatible, the earlier prevails, in deeds and other instruments, inter vivos, if the inconsistency be not so great as to avoid the instrument for uncertainty.” 2 Parsons on Contracts, 26. “In a deed, if there be two claims, so totally repugnant that they can not stand together, the first shall be received and the last rejected.” Sheppard’s Touchstone, 88. “If the habendum be repugnant to the premises, it shall be void, as if a grant be of all his term habendum after his death, the habendum will be void.” 4 Comyn’s Digest, 392; Title Grant, E., 10, and note M. “ And the grantee will take the estate given in the premises; a consequence of the rule, that deeds shall be taken most strongly against the grantor, and therefore that he will not be allowed to contradict or retract, by a subsequent part of the deed, the gift made in the premises.” How, in the deed or instrument under consideration, excluding the reservation of the right of revocation, there is clearly an absolute gift; but the last clause expresses the reservation of a power to “ retract by a subsequent instrument, the gift made in the premises.” In the light of this authority then, (which seems so consonant with right reason,) we can not hesitate to declare the reservation void. It can be scarcely necessary to add, that we decide this case upon common law principles, regarding [595] it entirely dehors the statute of uses, and the construction given to that statute in equity. We concur entirely in the rulings of the Court below. Let the judgment be affirmed.