Seay v. Huggins

SAYRE, J. — Complainant in the court below, appellants here, by this bill filed under the statute authorizing suits in equity to settle the title to lands and to clear up all doubts or disputes concerning the same, sought to remove the instrument in dispute as an obstacle between them and their inheritance of the land therein described. Complainants are the collateral heirs of the maker of the instrument, wlm left no- lineal descendants. Their contention is that the instrument was intended to operate in praesenti as a conveyance of a future interest in the land, that the land which it purports to convey was the grantor’s homestead at the time, and that it was and is a nullity, for the reason that grantor’s wife did not join in its execution. The chancellor, holding the instrument to be a will, dismissed the bill. Hence this appeal. This instrument has been drawn in the form of a deed; but upon its face it is not entirely clear whether [500] it was intended as a will or a deed. Its disposition of personal property that might, he owned by the maker at the time of his death, as well as its general provision that it should not take effect until after that event, indicate a reservation — or something very like a reservation — of the maker’s right to deal with the property as his own, notwithstanding the instrument, until his death. — Gillham v. Mustin, 42 Ala. 365; Crocker v. Smith, 94 Ala. 295, 10 South. 258, 16 L. R. A. 576. It may be noted, also; as of some importance in this connection, that the instrument, clear in this respect, evinces the maker’s intention to create a life estate in his wife, which, however, could not be done by a deed containing no words of grant to her. And we shall assume for the purpose of the present case, in accordance with the argument for appellants, that the instrument, if intended as a deed, is void on the ground taken against it, though reasons of considerable cogency in the peculiar circumstances have been urged to the contrary. (1, 2) This instrument, then, on its face, to use the language of Stone C. J., in Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28, is a nondescript, falling within an indeterminable class, which may be pronounced one thing or the other, will or deed, according to circumstances. If it cannot operate as a. deed, but may as a will, then, the case being otherwise doubtful, the court will incline to pronounce in favor of its testamentary character, without attaching controlling importance to mere form, ut res non pereat. And whenever a paper of dubious import is so framed as in any event to postpone actual enjoyment under it until the death of the maker, as in the case here, all the attending circumstances may be put in proof as aids in determining whether the maker intended it,should oper [501] ate as a deed or a will. — Sharp v. Hall, supra, and authorities there cited. (3, 4) Looking to the extraneous facts that have been proved, in connection with indications afforded by the face of the paper, we feel confident that the maker intended that it should operate as a will. He and his wife, having no children, had taken the beneficiaries named in this paper into their household and had reared them from infancy in all respects as their natural children. On divers occasions he declared his purpose to leave them his property after the death of himself and wife. In 1893, being then far advanced in years, he executed the instrument in controversy. He acknowledged the paper before a notary, but retained possession of it for four years, and then he sent it to one of the named ben-. eficiaries, who had married and moved away to Florida, with a letter wherein he referred to the fact that he and his wife were feeble, explained that he was sending the paper, which would show how he wanted his affairs settled after he and his wife were gone, and directed that it should not be “brought forward” during the life of his wife — who, evidently, he expected to survive him, as she did — unless some one should try to dispossess or trouble her. Afterwards, on several occasions, he referred to the paper in the possession of this beneficiary as his will. . We have spoken of the instrument as executed in 1893. The last figure indicating this date has evidently been changed, both in the subscribing clause of the instrument and in the maker’s acknowledgment before a justice of the peace. There was, however, no effort to' conceal the fact that a change was made, though there may be some doubt as to just what the change was. Considing the evidence on this point, we conclude that the [502] change ivas made at the behest of the maker and probably at the time the instrument was executed. The only effect of the change, if made as suggested by appellants, would be to reflect upon the probative force of the fact that the instrument was retained- for a long time in the possession of the maker. But without that fact, the others referred to having been clearly established, we would hold that there was no delivery of the instrument to¡ take effect in praesenti. On our latest consideration of the general subject here involved, Somerville, J., citing many cases of our own, and many besides from other jurisdictions, remarked that, while there seemed to be a substantial uniformity of opinion as to the general principles to be applied in such cases, the cases themselves exhibited the utmost contrariety in the particular conclusions reached. — Phillips v. Phillips, 186 Ala. 545, 65 South. 49. The court in that case, refusing to follow a dictum to the contrary in Trawisck v. Davis, 85 Ala. 343, 5 South. 83, held that an instrument, constituting in all other respects a formal deed, acknowledged, delivered, and recorded within a short time of the recited date of its execution, was not converted into a will by the addition of the words, “This deed is not to take [effect] until after my death.” The decision in that case (Phillips v. Phillips) was placed specifically upon the authority of Abney v. Moore, 106 Ala. 131, 18 South. 60, and in both of them the court had before it the fact only of an instrument and the fact of its delivery as a presently operative conveyance very shortly after execution. By reference to the face of the instrument here under consideration, which we may concede to be ambiguous, though of itself it looks rather persuasively towards a conclusion in favor of testamentary character, and the extraneous [503] facts appearing in evidence, ample grounds for discrimination will be found, leading with conviction to the conclusion already stated — a conclusion well supported in these circumstances by precedents the authority of which has not been doubted or denied. — Sharp v. Hall and Crocker v. Smith, both supra, and authorities there cited. (5) It only remains to be observed, in view of an argument advanced in brief for appellant, that the testamentary character of this instrument is not affected by the fact that the deceased owner could not by will deprive his widow of her right of homestead any more than he could by deed convey the homestead without her concurrence, evidenced as the statute requires.. The dispositions of the will in every such case are subject to the homestead rights of the surviving wife. The widow malees no complaint against the will. And in fact 'it appears that she, recognizing the evident purpose of her husband to give the property to appellants after her death, has executed a conveyance to them. It results that the decree dismissing the bill should be affirmed. Anderson, C. J., and McClellan and Somerville, JJ., concur.