been in the grantor at the time of the conveyance.' In that case, a grant "to go into full force and effect at" the grantor's death is involved.

And, on the authority of the preceding case, it is held in Lewis v. Tisdale (1905) 75 Ark. 321, 88 S. W. 579, that an instrument having the usual contents of a deed, and containing a clause providing that the grantor "shall have and retain the use and enjoyment, the rents and profits, of the . premises for and during

her natural life, and that this grant, bargain, and sale shall not be operative and shall not take effect until her death," is a valid deed.

In Latimer v. Latimer (1898) 174 Ill. 418, 51 N. E. 548, it is said: "Under the statutes of this state, livery of seisin is abolished. At common law, a freehold estate could not be created to commence in futuro, except where there was a particular estate to support it as a remainder. This was because a charter of feoffment was the only common-law instrument for the conveyance of a freehold, and a feoffment was void without livery of seisin, and that ceremony was necessarily performed presently. In this state, by the Act of 1827, livery of seisin was abolished, and it was provided, in substance, that every deed or other conveyance should be sufficient, without livery of seisin, for conveying or transferring lands, so as absolutely and fully to vest in every donee, grantee, bargainee, or purchaser of such estate or estates, as should be specified in the deed or other conveyance. The rule is well established, a conveyance of real estate delivered, but not to take effect or to be recorded until the death of the grantee, is good and valid without the creation of an intermediate estate to support it." The instrument involved contained a clause providing that it was "to be in force from and after" the grantor's decease, "and not before."

So, in Vinson v. Vinson (1879) 4 Ill. App. 138, involving a deed conveying property at the grantor's death, it is held that, under the Illinois statute abolishing livery of seisin, such a conveyance is not invalid, as conveying an estate in futuro, without the creation of a particular estate. 11 A.L.R.-3.

And see Shackelton v. Sebree (1877) 86 Ill. 616, supra, II. a, 2 (a), to the same effect.

And the preceding case is cited and followed in White v. Willard (1908) 232 Ill. 464, 83 N. E. 954 (reservation of use and control for life, and provision that title of grantees become absolute only on grantor's death); Calef v. Parsons (1892) 48 Ill. App. 253 (reservation of possession during grantor's life).

In Gorham v. Daniels (1851) 23 Vt. 600, a case involving a conveyance in which a portion of the conveyed premises was not to come into possession of the grantee till the grantor's death, after holding that the Statute of Uses has never been in force in that state, it is said: "The granting of an estate in fee, to take effect after a particular estate reserved as an estate for life, or lives, is not inconsistent with the law of England. And if it were, it could have no application here; for under our Statute of Conveyancing, there being no livery of seisin in fact necessary to invest the grantee with the title, but only the seisin resulting from the due execution and recording of the deed, there is no objection whatever to the creating of a freehold estate, in terms, to take effect in futuro."

And, independently of the Statute of Uses, it is held in Savage v. Lee (1884) 90 N. C. 320, 47 Am. Rep. 523, a deed reserving a life estate in the grantor may have the effect of passing a freehold estate in futuro, livery of seisin having been abolished by statute.

So, it is said in Dick v. Miller (1908) 150 N. C. 63, 63 S. E. 176, involving a deed providing that the title is vested in the grantor during his life, and at his death passes to the grantee, that, "in this state, an estate of freehold may be made to commence in futuro."

And in McLain v. Garrison (1905) 39 Tex. Civ. App. 431, 88 S. W. 484, rehearing denied in (1905) 39 Tex. Civ. App. 440, 89 S. W. 284, involving a deed containing a clause providing that it shall not take effect until the grantor's death, it is said: "It was a principle recognized by the feudal law that there should always be a known owner of every freehold estate, and that the

title thereto should never be in abeyance. Hence, at common law, a freehold to commence in futuro could not be conveyed for the reason that the same would be in abeyance from the execution of the conveyance until the future estate of the grantee should vest. Under the statute of this state, a freehold estate may be created to commence in futuro; and hence the common-law principle above stated has been entirely abrogated." The Texas statute provides that an estate of freehold or inheritance may be made to commence in futuro by deed or conveyance, in like manner as by will.

and

Under statutes providing that "conveyances of lands, or of any estate or interest therein, may be made by deed executed by any person having authority to convey the same, acknowledged and recorded without any other act or ceremony," and that "an estate of freehold or inheritance may be made to commence in future by deed, in like manner as by will," it is held in O'Day v. Meadows (1905) 194 Mo. 588, 112 Am. St. Rep. 542, 92 S. W. 637, that a deed creating an estate in futuro, by provision for its commencing upon the death of the grantor, is valid, despite the commonlaw rule.

So, it is said in Hurst v. Hurst. (1874) 7 W. Va. 289, where the grantor reserved a life interest in the property conveyed, that, "by the Code of Virginia of 1860, which was in force in this state in 1863, any estate may be made to commence in futuro by deed, in like manner as by will."

Under a statute providing that "a freehold estate . . . may be created to commence at a future day," the common-law rule existing prior to the Statute of Uses is abrogated, and future estates may be created. Spencer v. Robbins (1886) 106 Ind. 580, 5 N. E. 726 (provision that property is to be divided among grantees upon grantor's decease); Cates v. Cates (1893) 135 Ind. 272, 34 N. E. 957 (reservation of "all the estate in said land, and the use and occupation," during grantor's life); Wilson v. Carrico (1894) 140 Ind. 533, 49 Am. St. Rep. 213, 40 N. E. 50 (provision that the instrument be "of none effect until after the death" of the grantors).

But, under such a statute, “any language employed by the grantor, which would be sufficient to create an estate to commence at a future day, would, in the nature of the case, give a present interest in the property;” and an instrument which does not give a present interest does not come within the provision of the statute. Leaver v. Gauss (1883) 62 Iowa, 314, 17 N. W. 522. In this case, the deed provided that it was to "commence after the death of both grantors," and that the grantee shall have no interest in the premises, as long as the grantors shall live.

In Wyman v. Brown (1863) 50 Me. 139, after holding that freeholds may be conveyed to commence in futuro, under the Statute of Uses, it is said: "We are also of opinion that effect may be given to such deeds by force of our own statutes, independently of the Statute of Uses. Our deeds are not framed to convey a use merely, relying upon the statute to annex the legal title to the use. They purport to convey the land itself, and being duly acknowledged and recorded, as statutes require, operate more like feoffments than like conveyances under the Statute of Uses." In this connection Oliver on Conveyancing is quoted, to the effect that, in the transfer authorized by statute in this mode, "the land itself is conveyed, as in a feoffment, except that livery of seisin is dispensed with upon complying with the requisitions of the statute, acknowledging and recording substituted instead of it."

So, in Abbott v. Holway (1881) 72 Me. 298, involving a deed in which the grantor provides that the instrument is not to take effect until his decease, and that, in case he survives the grantee, the instrument is not to be operative, the preceding case is cited and followed. Referring to the opinion in that case, it is said: "And he [Walton, J.] concludes that deeds executed in accordance with the provisions of our statutes, and deriving their validity therefrom, may be upheld thereby, as well as under the Statute of Uses, notwithstanding they purport to convey freeholds to commence at a future day. In other words, the mere

technicalities of ancient law are dispensed with upon compliance with statute requirements. The acknowledgment and recording are accepted in place of livery of seisin, and it is competent to fix such time in the future as the parties may agree upon, as the time when the estate of the grantee shall commence. No more necessity for limiting one estate upon another, or for having an estate (of some sort) pass immediately to the grantee, in opposition to the expressed intention of the parties. The feoffment is to be regarded as taking place, and the livery of seisin as occurring, at the time fixed in the instrument, and the acknowledgment and recording are to be considered as giving the necessary publicity which was sought in the ancient ceremony."

See Lauck v. Logan (1898) 45 W. Va. 251, 31 S. E. 986.

4. Independently of both common law and statute.

Although a bargain and sale be inoperative as a covenant to stand seised to uses, because the consideration expressed is valuable, and not merely blood or marriage, or although the Statute of Uses be not in force when the bargain and sale is executed, it is held in Chandler v. Chandler (1880) 55 Cal. 267, involving the deed reserving the entire use of the land conveyed for the grantor's life, that, in either case, the court of equity should contemplate the actual rights of the parties, and construe the instrument in such a manner as to effectuate their intention, and that it has power to determine the actual rights of the parties and prevent future complications, and that such a deed, reserving a life estate in the grantor, should be treated as a contract to convey, and enforced by the decreeing of a formal conveyance of the fee to the grantee, and a reconveyance by the grantee of a life estate to the grantor.

So, it is held in Fish v. Sawyer (1836) 11 Conn. 545, that, irrespective of the English common law, it has been the practice and usage in that jurisdiction to consider conveyances to take effect in futuro as valid, and that, accordingly, by the common law in

Connecticut, a deed conveying a fee and reserving a life estate in the grantor is not invalid. In that case, the grantor reserved the use and improvement of the property during his life.

And although both implied cove nants and uses have been abolished in that jurisdiction by statute, it is held in Ferguson v. Mason (1884) 60 Wis. 377, 19 N. W. 420, that a conveyance of land in fee, to take effect in futuro, is valid. The decision is based on the present system of allodial tenures in operation in that state.

In holding, in Puukaiakea v. Hiaa (1885) 5 Haw. 484, that the rule of the common law with respect to the impossibility of creating estates to commence in futuro is not in force in Hawaii, it is said that “this rule is based on the necessity which once existed, but has now passed away, of livery of seisin."

b. In respect to personalty. Where, in Ingram v. Porter (1827) 4 M'Cord, L. (S. C.) 198, involving a grant of a slave to hold after the grantor's death, it is urged that, in analogy to the principle regarding covenants to stand seised to the use of land, the grant might be considered as giving the right to the grantee and making the grantor trustee for life, or as making the grantee trustee for the grantor for life, it is held that the Statute of Uses relates entirely to lands, and that it has no effect to render valid a grant of a future estate in chattels, wherein a life estate is reserved.

So, in Vernon v. Inabnit (1810) 2 Brev. (S. C.) 411, involving a deed of a slave, in which the grantor reserved possession of the slave during his life, it is said that "it is settled law that a man cannot limit a personal chattel to one for life, and the remainder to another, except by will or by deed of trust."

However, in Jaggers v. Estes (1848) 2 Strobh. Eq. (S. C.) 343, 49 Am. Dec. 674, involving a deed conveying to the grantee certain slaves, "to have and to hold . . at my death," it is held that a future interest in a chattel may

be created by deed, without the necessity of resorting to a trust.

And the preceding case is cited and folllowed in Babb v. Harrison (1856) 9 Rich. Eq. (S. C.) 111, 70 Am. Dec. 203.

And it is held in Duke v. Dyches (1829) 2 Strobh. Eq. (S. C.) 353, note, involving an instrument in which the maker gave certain slaves to his daughter, reserving to himself a life estate therein, that personal property can be limited over by deed, to take effect after the termination of a life estate therein.

And where, in Alexander v. Burnett (1851) 5 Rich. L. (S. C.) 189, a grantor of slaves provided in his deed that the instrument was to be of no effect until his death, it is said that "since the cases of Duke v. Dyches (S. C.) supra, and Jaggers v. Estes (S. C.) supra, it is no longer an open question whether a man may not, by deed duly delivered as such, give to another a negro, reserving to himself a life estate therein, provided that, by the operation of the deed, a present title passes to the donee, but the possession only is postponed to the death of the donor."

And so in Wall v. Wall (1855) 30 Miss. 91, 64 Am. Dec. 147, involving a deed conveying both real and personal estate, and containing provisions construed as amounting to a reservation of a life estate in the grantor, it is said: "With regard to the personal estate, the rule is generally held by the courts in this country that a deed conveying chattels to a donee, reserving the possession and use of the property to the donor during his life, is valid, though the deed be not made to a trustee for the parties in interest."

In Banks v. Marksberry (1823) 3 Litt. (Ky.) 275, involving a gift of slaves in which the grantor reserves a life estate, it is held that, although slaves are, by statute, made real estate, yet they are subject to the rules regulating personalty, and accordingly not within the common-law rule relating to the creation of estates to begin in futuro.

"Nothing is better settled," it is said in Caines v. Marley (1831) 2 Yerg. (Tenn.) 582, "than that an interest in

remainder, after an interest for life expires, may be limited in a deed for slaves, and that the first taker for life does not take the entire interest, as was, in earlier times, the English law with reference to personal property." The instrument in question is a deed of gift, in which the donor reserves the "possession, use, and labor" of the slaves for his lifetime, and provides that, after his death, the donee is to have "actual possession, in connection with his absolute title."

It is said obiter in Watson v. Watson (1885) 24 S. C. 228, 58 Am. Rep. 247: "It is true that the Statute of Uses does not apply to personalty, and it is also true that, at common law, while a conveyance of a chattel might be made to commence in futuro at a definite time fixed, yet it could not be made after a life estate, because a life estate was supposed to be of longer duration than any chattel. This ancient common-law rule, however, has been much modified since, and it cannot be said now that it has been established as an inflexible rule to be applied in all cases of personalty, without regard to the circumstances.

III. Will and deed distinguished.
a. In general.

1. Instrument passing present irrevo

cable interest.

As is pointed out above, the term "interest," as used in this note, is not to be confused with "estate." A deed may pass a present interest in property, the estate in which is a future one. One has an interest in property when he presently owns or holds some property rights therein, regardless of the time at which the estate comes into enjoyment.

Where the provision in an instrument in the form of a deed, postponing its taking effect until after the death of the grantor, is construed as passing a present interest in the grantee, the instrument is a deed.

Alabama. Thompson V. Johnson (1851) 19 Ala. 59; Gillham v. Mustin (1868) 42 Ala. 365; McGuire v. Bank of Mobile (1868) 42 Ala. 589; Daniel v. Hill (1875) 52 Ala. 430; Jordan v. Jordan (1880) 65 Ala. 301; Trawick v. Da

vis (1888) 85 Ala. 342, 5 So. 83; Abney v. Moore (1894) 106 Ala. 131, 18 So. 60; Mays v. Burleson (1913) 180 Ala. 396, 61 So. 75; Graves v. Wheeler (1913) 180 Ala. 412, 61 So. 341; Smith v. Davis (1917) 199 Ala. 687, 75 So. 22. Arkansas.-Bunch v. Nicks (1887) 50 Ark. 367, 7 S. W. 563.

California.-Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570, 140 Pac. 242; Niccolls v. Niccolls (1914) 168 Cal. 444, 143 Pac. 712.

Florida.-Johns v. Bowden (1914) 68 Fla. 32, 66 So. 155.

Georgia.-Watson v. Watson (1857) 22 Ga. 460; Hall v. Bragg (1859) 28 Ga. 330; Daniel v. Veal (1861) 32 Ga. 589; Brewer v. Baxter (1870) 41 Ga. 212, 4 Am. Rep. 530; Shelton v. Edenfield (1918) 148 Ga. 128, 96 S. E. 3. Illinois. Roth v. Michalis 125 Ill. 325, 17 N. E. 809.

(1888)

Indiana. Spencer v. Robbins (1886) 106 Ind. 580, 5 N. E. 726; Stroup v. Stroup (1894) 140 Ind. 179, 27 L.R.A. 523, 39 N. E. 864; Timmons v. Timmons (1911) 49 Ind. App. 21, 96 N. E. 622.

Iowa.-Craven v. Winter (1874) 38 Iowa, 471; Leaver v. Gauss (1883) 62 Iowa, 314, 17 N. W. 522; Saunders v. Saunders (1901) 115 Iowa, 275, 88 N. W. 329; Tuttle v. Raish (1902) 116 Iowa, 331, 90 N. W. 66; Lewis v. Curnutt (1906) 130 Iowa, 423, 106 N. W. 914; Ransom v. Pottawattamie County (1915) 168 Iowa, 570, 150 N. W. 657; Meyer v. Stortenbecker (1917) 184 lowa, 441, 165 N. W. 456; SHAULL v. SHAULL (reported herewith) ante, 15. Kansas.-Reed v. Hazleton (1887) 37 Kan. 321, 15 Pac. 177; Bevins v. Phillips (1897) 6 Kan. App. 324, 51 Pac. 59. Kentucky.-Rawlings v. McRoberts (1894) 95 Ky. 346, 25 S. W. 601; Ison v. Halcomb (1910) 136 Ky. 523, 124 S. W. 813; Taylor v. Purdy (1912) 151 Ky. 82, 151 S. W. 45.

Michigan. Hitchcock v. Simpkins (1894) 99 Mich. 198, 58 N. W. 47; Leonard v. Leonard (1906) 145 Mich. 563, 108 N. W. 985; Moody v. Macomber (1910) 159 Mich. 657, 134 Am. St. Rep. 755, 124 N. W. 549. Minnesota.-Thomas

V.

Williams

(1908) 105 Minn. 88, 117 N. W. 155;

Smith v. Corey (1914) 125 Minn. 190, 145 N. W. 1067.

Mississippi.-Wall v. Wall (1855) 30 Miss. 91, 64 Am. Dec. 147; Sartor v. Sartor (1861) 39 Miss. 760; McDaniel v. Johns (1871) 45 Miss. 632; Cunningham v. Davis (1884) 62 Miss. 366; Thomas v. Byrd (1916) 112 Miss. 692, 73 So. 725; Cox v. REED (reported herewith) ante, 5.

Missouri.-Miller v. Holt (1878) 68 Mo. 584; Murphy v. Gabbert (1901) 166 Mo. 596, 89 Am. St. Rep. 733, 66 S. W. 536; Griffin v. McIntosh (1903) 176 Mo. 392, 75 S. W. 677; O'Day v. Meadows (1905) 194 Mo. 588, 112 Am. St. Rep. 542, 92 S. W. 637; Aldridge v. Aldridge (1906) 202 Mo. 565, 101 S. W. 42; Givens v. Ott (1909) 222 Mo. 395, 121 S. W. 23; Terry v. Glover (1911) 235 Mo. 544, 139 S. W. 337; Sims v. Brown (1913) 252 Mo. 58, 158 S. W. 624; Priest v. McFarland (1914) 262 Mo. 229, 171 S. W. 62.

Nebraska.-Pinkham v. Pinkham (1898) 55 Neb. 729, 76 N. W. 411.

New Jersey. Sibley V. Somers (1901) 62 N. J. Eq. 595, 50 Atl. 321. New York. Re Diez (1872) 50 N. Y.

88.

North Carolina.-Clayton v. Liverman (1846) 29 N. C. (7 Ired. L.) 92; Phifer v. Mullis (1914) 167 N. C. 405, 83 S. E. 582.

Oregon.-Beebe v. McKenzie (1890) 19 Or. 296, 24 Pac. 236; Sappingfield v. King (1907) 49 Or. 102, 8 L.R.A. (N.S.) 1066, 89 Pac. 142, affirmed on rehearing in (1907) 49 Or. 109, 90 Pac. 150.

Pennsylvania. - Turner V. Scott (1866) 51 Pa. 126; Nixon v. Frick Coke Co. (1900) 27 Pa. Co. Ct. 150; Muntz v. Whitcomb (1909) 40 Pa. Super. Ct. 553.

South Carolina.-Ragsdale v. Booker (1826) 2 Strobh. Eq. 348, note; Jaggers v. Estes (1848) 2 Strobh. Eq. 343, 49 Am. Dec. 674; Babb v. Harrison (1856) 9 Rich. Eq. 111, 70 Am. Dec. 203; Folk v. Varn (1857) 9 Rich. Eq. 303; Williams v. Sullivan (1858) 10 Rich. Eq. 217.

South Dakota.-TRUMBAUER V. RUST (reported herewith) ante, 10.

Tennessee. Watkins v. Dean (1837) 10 Yerg. 321, 31 Am. Dec. 583; Swails v. Bushart (1859) 2 Head, 561; Swiney