Hall v. Burkham

MANNING, J.— The chancellor erred in holding that the instrument on which this suit was founded, executed by Mrs. [354] Dorion Hall, is of a testamentary character, and not a deed. Upon its face it purports to be a deed. Its introductory words are those almost always employed in a deed. Then, as1 it embraces all the property of Mrs. Hall which might be a cause for objection on the part of creditors,—instead of declaring herself according to the common clause in a will,— “of sound and disposing mind and memory”—she, appropriately to the situation, describes herself as “ being at this time free from all debts and liabilities.” Next follows the recital of a money consideration of five dollars from the trustee, and of love and affection to the beneficiaries, her grand children. Thereupon she gives, grants, conveys and assigns, all her property of any kind, to her son, the trustee, for the benefit of his children,—reserving to herself the possession and use—not title—thereof for her support, maintenance and enjoyment during her natural life; at the expiration of which, her son is to take possession of some furniture and other things as his own, but of the residue and bulk of the property, for the benefit and in trust for her grand children. In conclusion, the instrument proceeds as follows : “ I hereby reserve the absolute right and power for my own benefit, should I at any time think proper so to do, to revoke this deed. I also reserve the absolute right and power, in case my said son William B. Hall, shall decline to accept this trust, or should resign the same after accepting, or should die before me, to nominate and appoint another trustee in his stead. In testimony whereof, I have signed sealed and delivered these presents, on this the 18th day of March, A. D. 1871.” The instrument is signed by Mrs. Hall as maker, and attested by two subscribing witnesses. It is skilfully written; and upon it, is indorsed an acceptance of the trust, bearing the same date, signed by William B. Hall, and attested in writing by one of the subscribing witnesses to the bond. Mrs. Hall never exercised the power of revocation she reserved. Neither of the events happened upon which she could exercise the power of appointing another trustee. She never complained of the instrument, as in any respect, not expressing her intention; and she is dead without leaving any creditors to complain of its operation. There is no rule of law which prevents an instrument like this, if intended to be a deed, from having effect as a deed. The intention in this regard of the maker, must be ascertained from the writing itself viewed in the light which the circumstances attending the transaction may shed. In this [355] case there are none which compel or enable us to see in the language used any other meaning than that which the words •employed usually and naturally express. The argument that it is a will is founded chiefly upon the provisions by which Mrs. Hall reserved the possession and use of the property during her life, and a power to revoke-the instrument. According to numerous decisions of this and other courts, the former of these provisions does not by itself produce the effect contended for. And in regard to the power of revocation, the better opinion is that it tends rather to rebut than to sustain the idea that the instrument containing it is of a testamentary character. “ The insertion of such a clause, so far from indicating an intention to make a will, imparts quite a contrary color to the transaction, as a will wants not an express power to make it revocable.”—(1 Jarman on "Wills, 17). And even more decidedly is the intention implied, of making an instrument operative to transfer the title from its date, to-wit, a deed,-—-by the declaration in it, that in case the person to whom as trustee it is made, shall decline to accept the trust, or after accepting resign it, or die, in the lifetime of Mrs. Hall, she shall have -the power to appoint another trustee in his stead. "We are clearly of the opinion that the instrument in question was properly put into execution as a deed, and need not be offered for probate to be established as a will. The parties having agreed, in the event that this should be our opinion, upon the terms of a decree by consent which .should be entered in this cause, let the decree so agreed on be enrolled on the minutes of the court, and executed.