McDaniel v. Johns

Peyton, C. J. : On the 2d day of November, 1855, John McDaniel, in consideration of natural love and affection, conveyed by deed to his son, James H. McDaniel, and his heirs, certain lands situated in Franklin county in this state, reserving to himself and his wife, the use and occupation of said lands during their natural lives. And, on the same day, he made a like deed of gift of certain other lands situate in the same county to his daughter, Susannah E. McDaniel and her [641] heirs, with the reservation of the nse and occupation of the same during the natural lives of himself and wife. And on the 12th day of February, 1857, the said John McDaniel, in consideration of natural love and affection for his son, James II. McDaniel, and his daughter, Susannah E. McDaniel, and for the further consideration of the payment of $3,500 to Elmira Weathersby and alike sum to each Mary Ann Meyers and Louisa Flowers, conveyed to the said James H. McDaniel and Susannah E. McDaniel, certain negro slaves and other personal property, reserving to himself and his wife the use and enjoyment of said property during their natural lives. These three several deeds of gift were duly acknowledged and recorded in the clerk’s office of the probate court of said county of Franklin The said John McDaniel, on the 28th day of July, 1868, filed his bill in the chancery court of said county, against James H. McDaniel, Joshua O. Johns and Susannah E. Johns, his wife, praying for an injunction restraining the said Susannah E. and Joshua O. Johns, her husband, from conveying or incumbering said property, and that, upon final hearing, the said deeds may be annulled and canceled. The defendants, Joshua O. Johns and Susannah E. Johns, his wife, demurred to the bill for the want of equity upon its face. The demurrer was sustained and the bill dismissed at the cost of the complainant, who appeals to this court, and assigns for error the action of the court in sustaining the demurrer and dismissing the bill. The question presented by this record for our consideration is, what is the character and nature of these instruments ? Are they deeds or parts of a will and testamentary in their character % A will is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is, in its own nature, ambulatory and revocable during his life. It is this ambulatory quality which forms the characteristic of wills; for, though a disposition by [642] deed may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, yet the postponement is in such case produced by the express terms, and does not result from the nature of the instrument. Thus, if a man by deed limit lands to the use of himself for life, with remainder to the use of A. in fee, the effect upon the usufructuary enjoyment is precisely the same as if he should, by his will, make an immediate devise of such lands to A. in fee; and yet the case fully illustrates the distinction in question ; for, in the former instance, A., immediately on the execution of the deed, becomes entitled to a remainder in fee, though it is not to take effect in possession until the decease of the grantor ; while in the latter, he would take no interest whatever until the decease of the testator should have called the instrument into operation. 1 Jarman on Wills, 11. When tested by this criterion, it will clearly appear that these instruments are not parts of a will, which conveys no present interest, but are deeds which, upon their execution and delivery, convey to the grantee in each particular^ instance a present interest, an estate in presentí, though to be occupied and enjoyed in futoro. The grantee, under each of these deeds, takes a vested remainder in fee in the property conveyed, which nothing can defeat or set aside. The bill of complaint states that the complainant adopted the mode of disposing of his property by deed in his lifetime, for the sole purpose of avoiding the litigation and expense which might attend a purely testamentary disposition thereof after his death. From this, it would seem, that he did not himself regard these deeds as parts of a will, which he declined to make for fear of the litigation that might grow out of it after his death, but that he resorted to them as a mode of settling his property in his life-time upon his children so as to prevent litigation. We are to infer, from the language of the bill, that the complainant was satisfied with the disposition which he had made of his property among his children by these deeds, until the eman [643] cipation of the slaves, which he had given to one of them, produced an inequality in their shares, which he seeks to remedjr by having these deeds set aside, and a resettlement of the property. The bill alleges, that these deeds of gift, by which the complainant made a division of his property, were regularly executed and recorded, and in which the grantor reserved to himself and wife the use and enjoyment of the property during their natural lives. These conveyances, though voluntary, are good and effectual as between the pai’ties, and are only liable to be questioned in certain cases, when the rights of creditors and subsequent purchasers are concerned. 4 Kent, 539, top page; 2 Rand. 384; 1 Johns. Ch. 329, 336, and 1 Wash. C. C. 274. And such conveyances, when they have once been executed and delivered, cannot be recalled. Nor will a court of equity interfere, but will leave the.parties where it finds them as to title. That these are deeds of conveyance of the property embraced in them, subject to the life estate of the donor and wife, is believed to be settled by this court in the case of Wall v. Wall, 30 Miss. 91. But even if they were parts of a will, as insisted by counsel for the appellant, they would not affect any subsequent settlement or disposition of the property, which he might think proper to make. As a will they would be ambulatory in their nature, and in the power of the testator to alter or revoke at pleasure, at any time during his life. The devisees and legatees would take nothing until the death of the testator. These deeds as to the real estate operate as covenants to stand seized to the use of the donors, in whom the estate vests in possession, upon the determination of the life estate reserved to the donor and his wife. And it seems to be well settled by the courts in this country, that a deed conveying personal property, reserving the possession and use of the property to the donor during his life, is good and valid, though the deed be not made to a trustee for the parties in interest. Upon the whole, we are of opinion there is no error in'the decree; and it is therefore affirmed.