Noble v. Metcalf

McCLELLAN, J. — The bill purports to be by a remainderman against the grantees of a life tenant, and seeks the intervention of the court of equity to prevent waste and decay of the corpus of the estate. The real estate in question was held hy William V. Metcalf at the time of his death; and his heirs at law executed the conveyance exhibited with the bill to Catherine Sims, commonly called Ida Ghaham. Therein this expression appears: “That for and in consideration of the sum of five dollars to each of us in hand paid by Catherine Sims, commonly known as Ida Graham, and in further consideration of a promise by the said Catherine Sims to make and execute her last will and testament bequeathing and devising her property, real and personal, to John Met-calf, Jr. " * It appears from the bill that Catherine Sims was living when the bill was filed, but that she had conveyed the real estate described in the exhibited deed to the respondents Noble. It appears from the conveyance, the important feature of which we have quoted, that no life estate or equitable interest' in prsesenti in the complainant, Metcalf, to or in the real property described in the deed, was created or vested by the instrument. The whole meaning of the stated consideration, .aside from the $5 mentioned, was that in futuro the grantee would make a will devising and bequeathing her property to John Met-calf, Jr. This is made perfectly certain by the employment of the word “Promise,” which, as used, denoted only a future action, or an assurance of future action. Employing that term (promise) and expressly defining its assurance as a consideration’ for the conveyance, the deed cannot be read otherwise than that “I will during [298] my life execute my will and testament devising and bequeathing my property to John Metcalf, Jr.” No time is fixed for that act to be performed, further than is necessarily implied in the fact that she must do so while living. Obviously such an assurance of future action, wholly unlimited, pending her life, could not be interpreted so as to vest complainant with any right or interest in any specific property during the life of Catherine Sims, because no breach of the promise, or covenant, if such it is, could occur while yet she lived. Had complainant, immediately upon the execution and delivery of the deed, demanded of the grantee the execution of her will, she might well have, without offending the promise set forth in the instrument, replied: “I decline, since my promise is redeemable at any time during my life.” If this view is correct, then the property seised and possessed by Catherine Sims at her death— a time with reference to which the will must speak— would be the property to be affected by the promise present in this deed. If our interpretation is correct, Bolman v. Overall, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107, is, we think an authority in point. After stating the principle upon which courts of equity assume to enforce rights arising from otherwise valid agreements to make wills, which is effected by the imposition of a trust in favor of the promisee, it is said : “It is in the nature of a covenant to stand seised to the nse of the promisee, as if the promisor had agreed to retain a life estate in the property, Avith remainder to the promisee in the event the promisor OAvns it at the time of his death, but with full power on the part of the promisor to make any bona fide disposition of it during his life to another, otherwise than by will. The power to make such a will having been renounced, the attempt to exercise it is deemed a fraud. [299] Our construction of the instrument of course operates to deny equity to the bill; and tbe decree below is therefore reversed, and one will be here rendered dismissing tbe bill. Reversed and rendered. Tyson O. J., and. Anderson and Denson, JJ., concur.