Moody v. Macomber

Brooke, J. (after stating the facts). But two questions are presented: (1) Does the deed in question convey a present interest, or is it testamentary in character, and therefore revoked by the will of 1902 ? (2) Has the plaintiff, as executor under the will, such an interest in the farm in question as will enable him to maintain ejectment? Gardner on Wills, at page 24, states the rule as follows: “ The essential difference between a deed and a will is that a deed must pass a present interest in the property, although the right to possession and enjoyment may not accrue until some future time, while an instrument, which passes no interest until after the maker’s death, is a will. * * * Regard must be had to the intention of the [660] maker viewed in the light of the language of the instrument, and the circumstances surrounding the parties and attendant upon its execution” — citing cases. 1 Underhill on Wills, § 37, in discussing the question, uses language to the same effect. See, also, Borland on Wills, § 8, and cases cited. Applying the foregoing rule to the case at bar, we find that there is no ambiguity in the language used: “This deed is not to become operative until the death of the grantor named herein.” These words can have but one meaning, viz., that no interest passed to the grantee thereunder until the happening of the event described. It is manifest that the instrument cannot be inoperative, as provided by its terms, and at the same time operative, to convey a present interest to be enjoyed by the grantee, at the death of the grantor. Nor is the meaning of the language quoted enlarged, restricted, or in any wise changed by the words following the quotation. If we look to the circumstances surrounding the parties at the time of the execution of the instrument (which is unnecessary in this case), in order to ascertain the intent of the parties, there can be no doubt that both Sutton and his wife- believed that, in executing deeds to each other to become operative at death, they were making a testamentary disposition of their several estates. The fact that John B. Sutton, in his lifetime, deeded away two parcels described in the deeds to his wife is significant as to his understanding of the effect of the instrument. The language contained in one of the deeds, “and all other real estate of which I may die seised,” is also important as indicating a testamentary intention on the part of the grantor. Another important fact, as bearing upon his intention, is that in 1902 he made a will by the terms of which his wife was given a life estate only. Similar provisions have frequently been construed by this court. In the late case of Leonard v. Leonard, 145 Mich. 563 (108 N. W. 985), [661] the language construed was: “This déed is not to become operative until after the death of the parties of the first part hereto ” — where this court said: “ The words used cannot be said to apply simply to the enjoyment and possession of the property, but to the entire force and effect of the instrument, and are repugnant to the creation of a present interest.” See, also, Bigley v. Souvey, 45 Mich. 370 (8 N. W. 98); Lautenshlager v. Lautenshlager, 80 Mich. 285 (45 N. W. 147); Ferris v. Neville, 127 Mich. 444 (86 N. W. 960, 54 L. R. A. 464, 89 Am. St. Rep. 480); Lincoln v. Felt, 132 Mich. 49 (92 N. W. 780); Clay v. Layton, 134 Mich. 337 (96 N. W. 458); In re Dowell’s Estate, 152 Mich. 194 (115 N. W. 972). The instrument, though in form a deed, was in fact a will. We find no evidence in the record of the delivery of the instrument, but whether it was delivered or not is of no consequence if, in fact, it was testamentary in character. The delivery of a will conveys no estate to a devisee therein named. Can the executor maintain ejectment? The language of the will is as follows: “I hereby nominate, constitute and appoint Paul B. Moody, executor of my last will and testament, with full power and authority, upon the decease of my said wife, Louisa A. Sutton, to make such disposition of any and all of the property of which I may die seised- and possessed, as may be necessary to carry out the provisions of this instrument.” The statute gives to the executor the right to the possession of all real and personal estate of the deceased. Section 9354, 3 Comp. Laws. The right of an executor to maintain ejectment under this statute has been upheld. Kline v. Moulton, 11 Mich. 370; Barlage v. Railway Co., 54 Mich. 564 (20 N. W. 587). One entitled to the possession of land merely may maintain ejectment. Covert v. Morrison, 49 Mich. 133 (13 N. W. 390); Shaw v. Hill, 79 Mich. 87 (44 N. W. 422). But we are of opinion that the language of the will above quoted is [662] broad enough to convey title to the land in question coupled with a power of sale, though the land is not specifically described. The judgment must be affirmed. Montgomery, C. J., and Hooker, McAlvay, and Blair, JJ., concurred.