Brown v. Atwater

Gileillan, C. J. The objections to the judgment in the •case of Mrs. Brown against John Potts Brown — to wit, that there was no proof of service of the summons on him, that there was no decision of the court stating the facts found, and that it has not the clerk’s signature upon it — go only to its regularity, and cannot be raised in a collateral action. The act of March 9, 1875, ("Laws 1875, c. 40,) abolishing estates in dower, etc., gave to the surviving husband or wife the interest in the real estate of the deceased husband or wife [522] prescribed by the act, only as to the real estate of which the-deceased should die seized. It has, therefore, no application to this case, if the conveyance of Mrs. Brown to plaintiffs took effect to divest her estate before her death; and that it did, we have no doubt, either.upon the facts found by the court,, or the evidence. That she preferred to divide her estate by deed before her death, rather than to do it by will to take effect at her death, and that the deed was executed for that purpose, is shown. But there is nothing to show that she-did not intend the deed to take effect at once upon its execution, and without reference to the time when she might die. The mere fact that she executed a will at the same time as-the deed, does not show it. There have been cases where a deed has been held to have effect as a testamentary disposition, but they have been cases where, as in Attorney General v. Jones, 3 Price, 368; Habergham v. Vincent, 2 Ves. Jr. 204; and Vreeland v. McClelland, 1 Bradf. (N. Y.) 393, the deed was not intended to go into full effect at once; or where, as in Peacock v. Monk, 1 Ves. 127, and Tomkyns v. Ladbroke, 2 Ves. 591, the mode of disposing of property by deed, instead of by will, was adopted with a fraudulent purpose. There is no case in which a deed intended to take effect at once, where the intent was lawful, has been held to be a. testamentary disposition. Order affirmed.