Leaver v. Gauss

Adams, J. The instrument purports to have been executed in consideration of love and affection. The answer avers that it was executed in consideration of the payment by the [316] defendant of certain indebtedness due from tbe plaintiff. If sucli fact could properly be pleaded as against tbe instrument, it must be deemed admitted by tbe demurrer. Tbe defendant relies largely upon this fact to support bis position that tbe instrument was not testamentary in its character, but immediately operative and binding upon tbe property. lie insists that tbe instrument, when taken altogether, and especially if construed in tbe light of tbe fact which be- pleads in. respect to a valuable consideration paid, must be deemed to have bad tbe effect to convey the property, subject to a life estate in the plaintiff and bis wife. We have to say, however, that we do not see bow we can give tbe instrument tbe effect claimed, without contravening one of its express provisions. It declares that it is agreed “that tbe grantee shall have no interest in said premises as long as tbe grantors or either of them shall live.” The defendant asks us to bold that be has now an interest in tbe premises. We do not forget that the statute provides that “estates may be created to commence at a future day.” Code, § 1933. But we have to say that any language employed by tbe grantor, which would be sufficient to create an estate to commence at a future day, would, in tbe nature of the case, give a present interest in tbe property. Tbe estate would stand created, and tbe enjoyment postponed. A declaration that tbe grantee takes no interest during tbe life of the grantor is equivalent, we think, to a declaration that no estate is created. Tbe instrument, it is true, evinces an intention favorable to tbe grantee, but that intention is in substance only testamentary, and is,, of course, subject to revocation, if indeed a revocation is needed to prevent it from becoming operative. Tbe object of tbe defendant’s averment that a valuable consideration passed, was to give tbe instrument a present operation as binding the property. It was of no consequence in any other respect. If tbe court below bad held that it was proper to plead and prove such fact, it would have held virtually [317] that an express provision of the instrument could be overturned. We can conceive that a valuable consideration might pass as an inducement to the person receiving it to make a devise. If a devise in form should be made under such inducement, the instrument by which it should be made would still be testamentary, and, being such, would be revocable. We think that the court below did not err. Affirmed.