Mays v. Burleson

ANDERSON, J. “Whether an instrument is testamentary, or a conveyance operating to create estates and rights upon its execution, is often a question of [400] great difficulty. When it can have no effect as a deed, the court is- inclined to regard it as - a will, if in that character effect can be given to the evident intention of the maker. The controlling question is whether the maker intended that an estate or interest should vest before his death. If such be the intention, and the instrument can reasonably thus operate, it will be upheld as a deed. While the estate conveyed must vest upon the execution of the instrument, the passing of the immediate rights of possession and enjoyment is not essential to constitute a deed; and the reservation of a life estate does not of itself make it a will.”—Trawick v. Davis, 85 Ala. 342, 5 South. 83; Hall v. Burkham, 59 Ala. 349; Jordan v. Jordan, 65 Ala. 301. 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. The grantor, however, can reserve the power in a deed to revoke same or to divest a title thereby vested upon legitimate conditions reserved or provided for in the deed. Deeds, once executed are irrevocable, unless such powers are reserved in the instrument.”—Sharp v. Hall, 86 Ala. 112, 5 South. 498, 11 Am. St. Rep. 28; Craven v. Winter, 38 Iowa, 479. It is true that such a reservation makes the grantor the owner of the property as to creditors and purchasers, but we are not dealing with creditors or purchasers from Seth Bottoms subsequent to the deed. Nor will the fact that the power to revoke is reserved in the in [401] strument destroy its character as a deed.—Hall v. Burkham, 59 Ala. 349; Nichols v. Emry, 109 Cal. 323, 41 Pac. 1089, 50 Am. St. Rep. 43. The deed in question retained the control and possesion of the land in the grantor for his life, but it operated to convey the title in prmsenti to his daughter, the grantee, subjct to his right of possession and control during his life, and also subject to be-divested in case he should sell the land during his life, a power reserved by him in the deed. This reservation did not postpone the vesting of title in the grantee until the death of the grantor, but it became vested upon the execution of the deed, subject to be divested in case he exercised the reserved right to sell the land during his life. The intention of the grantor must be the polestar in considering the character of the instrument. It is in form a deed, is acknowledged as such, and is not executed or attested in such manner as could make it valid as a will, and the fact that the grantor reserved the power to sell the land is a strong indication that he did not intend it to operate as a will. If he intended it as a will, a reservation of the power to dispose of the property or revoke the instrument was not necessary, as he had this right, if it Avas a will, independent of the reservation. As Avas said in the case of Hall v. Burkham, supra, in speaking of the reservation to revoke the instrument: “And in regard to the power of revocation the better opinion is that it tends rather to refute 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 Avill wants not an express poAver to make it revocable.”—Jarman on Wills, 17. We therefore hold that the instrument of August 13, [402] 1903 (which will be set out by the reporter), is a deed, and did not have to be probated in order to be admissible as evidence. The instrument in the case of Gillham v. Mustin, 42 Ala. 366, is unlike the deed in question. It was ambulatory and posthumous, and vested no present title in the sisters as the same was to become operative only in case the owner died or was killed in the Avar. In other Avords, it Avas a testamentary gift, only to become effective in case of the donor’s death, and the sisters held the property conveyed as bailees or trustees, and Avhich Avas not to become theirs unless their brother-died or was killed during the Avar. The other cases cited by appellee’s counsel are not opposed to the present holding. As the deed in question conveys the land in controversy, and which Avas erroneously excluded from evidence, it becomes unnecessary for us to construe the will as it did not operate to pass the title to the land which the testator had conveyed away before his death. We cannot justify the action of the trial judge upon the theory that the -appellant is estopped by her admission from claiming title under the deed or is confined to a different theory of the case. It is true that she relied upon the will as the source of her title, but this she did not do until after the deed under which she claimed had been improperly excluded. Nor did her admission that the father was in possession of and owner of the land at the time of his death preclude her from relying upon the deed; for, while it was executed before the death of Seth Bottoms, he Avas at the time of his death-the owner to a qualified extent, and the appellant did not admit that he Avas the absolute OAvner. Moreover, these admissions were for the evident purpose of making Seth Bottoms the common [403] source, and to relieve both sides from tracing title beyond him. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.