Jordan v. Jordan's Adm'r

BEICKELL, O. J. — Any instrument in writing, whatever may be its form, executed in conformity to the provisions of the statute of wills, manifesting a posthumous destination of property, real or personal, can take effect only as a will; and rights under it can not be asserted or recognized, until it has been admitted to probate in the proper forum.' — Dunn v. Bank of Mobile, 2 Ala. 152; Shepherd v. Nabors, 6 Ala. 631; Gilham v. Martin, 42 Ala. 365; Daniel v. Hill, 52 Ala. 430; Elmore v. Mustin, 28 Ala. 309; Kinnebrew v. Kinnebrew, 35 Ala. 625. It is not a matter of moment, what is the designation of the instrument upon its face, nor how it may have been received and acted upon by the parties having beneficial interests under it. The true inquiry is, as to the effect and operation the party making it intended it to have. A will is defined to be an instrument by which a person makes a disposition of property to take effect after his death ; and as its operation is postponed during life, it is, in its own nature, ambulatory and revocable. It is this ambulatory and revocable quality which distinguishes it from deeds, and other similar instruments of transfer or conveyance, taking effect, if at all, at the time of execution. Not that instruments of transfer or conveyance must necessarily pass present, immediate rights of possession or enjoyment; but, whatever is the right or interest created, it must pass at the time of execution; When the interest is created and passes by such instruments, the postponement of possession or enjoyment, or of vesting, is produced by the express terms, and not by the nature of the instrument. The illustration usually given in the books is of a deed by which the grantor limits lands to the use of himself for life, with remainder to [306] the use of A in fee. The usufructuary enjoyment is precisely the same, as if he should by his will devise such lands to A in fee. The difference between the two, however, is apparent. Immediately upon the execution of the deed, the remainder in fee vests, though possession and enjoyment is' postponed. By no act of the grantor can it be revoked, annulled, defeated, or impaired. The execution of the will passes no estate, vests no title, creates no interest or right; all are dependent upon the death of the testator, in whom resides the absolute, unqualified power of revocation, though it is not reserved or expressed. It is often a matter of extreme difficulty to ascertain, when an instrument is unskillfully drawn- — when it employs alike apt words of conveyance and of devise or bequest, commingles provisions often found in deeds, with provisions generally found in wills ; and there is an express postponement of possession and enjoyment until after the death of the party executing it — whether it is intended as testamentary, or as a conveyance operating presently to create estates, rights and interests, which are irrevocable. It is the intention of the party executing, to be collected from the terms of the instrument, when these are read in the light of surrounding circumstances, which must prevail. The instrument proposed to be introduced as the evidence of the appellants’ title, and of the divestiture of the title of the intestate, Mrs. Jordan, was executed and delivered by her; and it is properly executed either as a will, or as a deed. It disposes of money then in the possession of the intestate, and of money to be raised by a sale of personal property not otherwise specifically disposed of ; and contains directions as to the burial and decoration of the grave of the maker. It commences with the words : - “For and in consideration of the love and affection I have for the following named persons, I do give, grant, and convey to each'one of them; ” and it concludes, “ and I also further request and enjoin upon my son David C. Jordan, that he take charge of, and manage in the interest, and to the benefit of my daughter, Arethusa A. Jordan, all the real and personal property herein and elsewhere deeded unto her, the said Arethusa A. Jordan. I also further request that my sons, Alexander Jordan and D*vid C. Jordan, shall take charge of all the real and personal property herein and elsewhere deeded, and that they proceed to place the owners thereof in possession of the same, with the least delay and expense possible, after my death ” ; followed by the testimonial clause usual in deeds. There cannot be any particular importance attached to the word “ deeded,” though, in popular accepta [307] tion it signifies a transfer by deed, found in the concluding clause of the instrument which we have quoted. In a preceding part of the instrument, is found this clause, “ The proceeds of all the personal property and effects not otherwise herein bequeathed,” which signifies a disposition by will. These words were doubtless used loosely and carelessly, and do not afford any valuable aid in arriving at the intention of the donor. That is more satisfactorily ascertained from a careful consideration of the whole structure, and all the terms of the instrument, to which we are confined, there not being any evidence of the circumstances surrounding the donor when it was executed, which would aid in ascertaining the intention. From the whole structure, and all the terms of the instrument, we are satisfied it is strictly testamentary— that it was intended by the donor as a disposition of all her personal property, to take effect after her death. The sons, David C., and Alexander Jordan, are not nominated as executors; but the duties they are required to perform, are strictly executorial. It is only after the death of the donor, that they have capacity or authority to take any step ; and then it is that they are to take charge of all the property, the money on hand, and the other property of which disposition is made, and to place the owners in possession. An irrevocable disposition of money in the possession of the donor, and of which, during life, possession is to remain with him, is not usual, nor can it be supposed it was in this instance contemplated. It would scarcely have been a violation of duty and of good faith, which a court of equity would have intervened to prevent, if the donor had made a hazardous loan, or an injudicious investment of the money, after the execution of the instrument; nor can we suppose that, under any circumstances, the .aid of the court could have been invoked, to compel her to give security for its payment on her death; or that a receiver would have been appointed, to hold it during her life, that on her death it should reach the destination given it by the instrument. Nor can it be supposed that it was the intention, if from any cause the identical money ou hand at the execution of the instrument should have been lost or converted, and at her death there was other moneys sufficient to meet the dispositions of the instrument, that the right of the donees should not attach to such moneys — that their rights were confined and limited to the identical money in the hands of the donor when the instrument was executed. Yet, if it is a deed, speaking and taking effect from its execution, that would be the consequence ; while, if it is a will, speaking and taking effect from the death of the donor, their rights would attach [308] to the moneys then on hand. Again, the disposition is of all the personal property of the donor ; and if it be a deed, it strips her of all right and interest therein, except possession during her life. It is evident, portions of this property must be consumed in the use, and much of it was of that kind which may be designated perishable. If the instrument was irrevocable — if it was a deed, and she was limited to the use for life — she would have been subject to disturbance by the donees in remainder, if wasteful in the use, or negligent in the care of the property. Again, the gift to the daughter Arethusa, of other things, is of “ a horse to be selected of her own choice out of my stock of horses; also, twelve months support out of any provisions or proceeds of the crops grown upon my place.” This, taken in connection with the gifts of feather-beds to her children and grand-children, and with the directions for the burial and decoration of the grave of the donor, indicate that her purposes were testamentary. And when the instrument is examined in all its parts — when the consequences of construing it as a deed, and the character of the property upon which it operates, are considered — we can not avoid the conclusion, that it is strictly testamentary ; if these .consequences had been explained to the donor, at the time of its execution, and of her the inquiry had been made, whether she intended conveying an interest that would vest before her death, and would be irrevocable, that she would have answered it negatively ; that her purpose was a disposition taking effect on her death, leaving her during life the unqualified dominion of ownership, with all its incidents. The instrument executed on the same day, purport] ug to be a conveyance of lands, is, doubtless, the instrument referred to as passing property “ elsewhere deeded.” That it may and ought to be looked to, in determining whether the instrument under which title to the personal property is claimed is a deed or a will, we do not doubt. All contemporaneous instruments, referring the one to the other, should be considered in construing either; and when two instruments have been contemporaneously executed, the one in form a will, and the other a deed, the nearness of the one act to the other has induced the courts to regard them as one. — 1 Jarman on Wills, 15. It will not follow, however, because the instrument relating to the lands is a deed, that the instrument relating to the personalty would, of necessity, be a like conveyance. An argument could be drawn, of more or less importance, from the fact, dependent upon the uncertainty in which its doubtful and ambiguous terms might leave the mind. If the two instruments were embodied in one, yet, it could be testamentary in one part, and a [309] present conveyance in another. — Kinnebrew v. Kinnebrew, 35 Ala. 628. Without determining whether the instrument relating to the lands should be regarded as testamentary, or as a deed, it is too variant and distinct in its terms to control the dispositions of the personal property. The rulings of the Circuit Court were in conformity to these views, and its judgment must be affirmed.