phrase, "at my death," the court *thinks, "does not appear to have been intended to operate on the words of gift, or grant, or upon the estate intended to be granted, but most naturally refers to and limits the time when the grantee shall enter upon the enjoyment of the estate granted. It presents, then, the common case of a gift by deed, of lands, with the reservation of a life estate to the donor." The instrument is held not to be testamentary in character.

In Cains v. Jones (1833) 5 Yerg. (Tenn.) 249, the grantor grants and conveys, after his death, all of his rights in certain lands. To the objection that the deed is void as conveying a future estate, it is said: "It was the intention of John Wright [grantor] to convey a present estate .; and it is equally manifest he intended to reserve a life estate to himself. To this, it is apprehended, there can be no valid legal objection."

See Evans v. Lauderdale (1882) 10 Lea (Tenn.) 73, involving an instrument in which the maker "agrees that, at his death," certain persons "shall be the lawful heirs of all the land he now owns," which instrument is held to be an executory contract, and not a testamentary paper.

And see Jacoby v. Nichols (1901) 23 Ky. L. Rep. 205, 62 S. W. 734; Mitchell v. Mitchell (1891) 108 N. C. 542, 13 S. E. 187; Macumber v. Bradley (1859) 28 Conn. 445. See also Simmons v. Augustin (1836) 3 Port. (Ala.) 69, supra, II. a, 2, (a); King v. Slater (1910) 96 Ark. 589, 133 S. W. 173, infra, III. c, 2, (p); Bowler v. Bowler (1898) 176 Ill. 541, 52 N. E. 437, infra, III. c, 2, (o); Vinson v. Vinson (1879) 4 Ill. App. 138, supra, II. a, 2, (a); Chavez v. Chavez (1890) - Tex. -, 13 S. W. 1018, infra, III. c, 2, (1); Roe ex dem. Wilkinson v. Tranmarr (1757) Willes, Rep. 682, 125 Eng. Reprint, 1383, 2 Ld. Kenyon, 239, 96 Eng. Reprint, 1168, 2 Wils. 785, 95 Eng. Reprint, 694, supra, II. a, 2, (a).

-

(b) "At my death," contained in
habendum.

For cases construing the instrument as a will, see infra, III. c, 3 (b).

An instrument in the form of a deed, conveying real estate in consideration of services to be rendered, is held in Guthrie v. Guthrie (1898) 105 Ga. 86, 31 S. E. 40, to be a deed, although the habendum reads "to have and to hold forever in fee simple, after

the death" of the grantor.

So a paper in the form of a warranty deed is held in Wynn v. Wynn (1900) 112 Ga. 214, 37 S. E. 378, to be a deed passing a present interest, notwithstanding a clause in the following language: "To have and to hold the above-described premises to be his at my death and the death of my wife.”

And an instrument in the form of a deed, reciting the grantor's purpose to be the securing to the grantee of a home after his death, and containing an habendum "to have and to hold

forever, from and after my death, the delivery hereof not to occur until my death," is held in Stevens v. Haile (1914) Tex. Civ. App. —, 162 S. W. 1025, to be a deed, executed to convey title, and not a will.

Where an instrument in the form of a deed contains a clause of present grant and covenants of warranty, a recital that the purpose of the instrument is to provide for the grantees after the grantor's death, and a further statement that, "at the time of the death" of the grantor, the grantees are to have and to hold the property, do not give the instrument a testamentary character, it being the intent of the grantor to pass a present interest in the grantees, himself retaining a life estate. Ecklar v. Robinson (1906) 29 Ky. L. Rep. 1038, 96 S. W. 845.

An instrument in the form of a deed, conveying to the grantee certain slaves, "to have and to hold

at my death," is held, in Jaggers v. Estes (1848) 2 Strobh. Eq. (S. C.) 343, 49 Am. Dec. 674, to be “a good and valid deed," the effect of which is to pass a present title to the grantee of a future interest. In this case, the grantor gives to the grantee, “in as ample and full a manner as I am capable of bestowing, to have and to hold

from henceforth and forever, as her

lawful right and property, at my death."

And in Clayton v. Liverman (1846) 29 N. C. (7 Ired. L.) 92, the instrument states that the makers "have given and bequeathed" certain property to a certain person, to have and to keep, "at our death, free from any enthralments whatever." In view of the fact that the language of the instrument, with the exception of the word "bequeath," is that belonging to a deed, in view of the testimony of the scrivener that he had been requested by the makers to write a deed of gift, and in view of the testimony of other witnesses that the makers delivered the instrument as their deed, the instrument is viewed as passing a present interest, and to be a deed, and not a will.

So, a paper containing words of present grant, and having a distinct granting clause, and habendum and tenendum, is a deed, and not a will, although the habendum reads, "to have and to hold the aforesaid property at my death," the phrase "at my death" deferring the time of taking possession, and not the time of the passing of title. Johnson v. Hines (1861) 31 Ga. 720. In this case, the court assigns two grounds for its decision; the first being that the granting clause is meant to grant an estate in præsenti, and the habendum is meant to reserve a life estate, the two being consistent. This reason is proper and sufficient. But in its other reason the court errs. Although the question is whether the instrument is a will or a deed, and it is specifically said that in the case of wills the last expression of testamentary intention must prevail, the court, assuming the granting clause and the habendum to be irreconcilable, applies the rule of construction applicable to deeds, and holds that the clause first appearing in the instrument must control. Thus, in trying to prove the instrument to be a deed, it is assumed to be a deed. If the court had assumed the instrument to be a will, and had applied the rule of construction applicable, according to its own statement, to wills, it would have proved in exactly the same manner

that the instrument was of a testamentary nature.

A written instrument in the form of a warranty deed of land to the grantor's daughter, who was living with him on the land, executed on the day the grantor was dividing his lands among his children, and delivered by the grantor to the grantee immediately following its execution, is viewed in Josey v. Johnston (1916) 197 Ala. 482, 73 So. 27, as a deed, and not a will, despite a clause therein "to have at my death." In reaching its conclusion, the court takes into consideration, not only the language of the instrument set out, but also the attendant circumstances mentioned.

Where a grantor conveys lands to his wife, "to have and to hold from and after the death" of the grantor, and provides that it is to be understood "that this conveyance is made upon the express condition that the said [grantee] shall, during his lifetime, retain the possession and control of the premises," the instrument passes a present interest to the grantee, with the enjoyment thereof postponed till the grantor's death, and is a deed, and not a will. Christ v. Kuehne (1902) 172 Mo. 118, 72 S. W. 537.

See Ingram v. Porter (1827) 4 M'Cord, L. (S. C.) 198, not involving any question of distinguishing between a will and a deed, where a father, by an instrument in the form of a deed, conveyed a slave to his daughter, and by the habendum provided that she was to have and to hold it after his death, where it is held that "the habendum, after the death of the father, is utterly inconsistent with the present interest [granted by the present words of conveyance in the premises], and therefore cannot take effect."

And see Gay v. Gay (1899) 108 Ga. 739, 32 S. E. 846, supra, III. c, 2, (a); Noble v. Fickes (1907) 230 III. 594, 13 L.R.A. (N.S.) 1203, 82 N. E. 950, 12 Ann. Cas. 282; Book v. Book (1883) 104 Pa. 240; Milledge v. Lamar (1816) 4 Desauss. Eq. (S. C.) 617. See also Trafton v. Hawes (1869) 102 Mass. 533, 3 Am. Rep. 494, supra,

II. a, 2, (b); Wallis v. Wallis (1808) 4 Mass. 135, 3 Am. Dec. 210, supra, II. a, 2, (b).

(c) "At my death," following

description.

In Lewis v. Curnutt (1906) 130 Iowa, 423, 106 N. W. 914, the maker of a deed of trust executed and delivered, as a part of the transaction, an instrument in which she prescribed that, upon her death, the trustee was to pay her debts and funeral expenses, and divide the remainder of her estate among certain specified persons. This instrument contained, following the description of the property and preceding the conditions of the trust, the words "from and after my death, and not before." The court is of the opinion that, "upon a fair construction of the writings as a whole, the words 'from and after my death' have no reference to the time when the title or interest shall pass under the deed, but to the time when the trustee shall have authority to take possession, and proceed with the active performance of his trust. That this must be so is to be seen, not only from the language employed, but from the fact that then and there, and as a part of the same transaction, the grantor made and delivered to the trustee an unconditional conveyance of the title. . . . To suppose that, while delivering with one hand to the trustee a deed, the legal meaning and effect of which she is held to have understood, she also passed to him with the other hand an instrument by which the deed was intended to be made null and void, is to assume that the entire deal was solemn farce."

a

In Sumner v. Harrison (1899) 54 S. C. 353, 32 S. E. 572, an instrument in the form of a deed provided, following the description of the land: "In trust, nevertheless, and it is the true intent and meaning of these presents that the said S. T. McCrary [trustee] shall hold the said premises for the term of twenty years from and after the date of my death, for the sole use and behoof of my said children." This instrument is held to pass title in præsenti.

a

In Crawford v. Thomas (1920) Ga. 104 S. E. 211, an instrument attested by three witnesses and in all respects in the form of a deed, including the expression of a consideration, was held to be not a will, but conveyance, which, if delivered, would have passed title in præsenti with right of possession postponed, notwithstanding the words, following the description and preceding the habendum, "this deed goes into effect at the death of me and my wife." Accordingly, probate of the instrument. as a will was denied, although it had never been delivered and was therefore not effectual as a deed.

(d) Specific reservation of life estate. For cases construing instrument as a will, see infra, III. c, 3 (c).

A reservation of a life estate to the grantor, in an instrument purporting to grant the fee, creates a strong presumption that the deed was intended to take effect immediately, as a present conveyance of a future estate; for otherwise such a reservation would be useless. Young v. Payne (1918) 283 Ill. 649, 119 N. E. 612.

In light of facts showing that the maker directed the draftsman to draw a deed to take effect after her death, and that, after making it, she requested him to make delivery thereof, an instrument in the form of a deed, reserving a life estate in the lands conveyed and limiting the conveyance "to take effect after my [her] death, and no sooner," is held in Leslie v. McKinney (1896) Tex. Civ. App.

-, 38 S. W. 378, to be a deed passing a present estate, to commence in futuro.

So, in Galloway v. Devaney (1860) 21 Ark. 526, the conveyance in question was not copied into the bill of exceptions, but in the agreed statement of facts it is stated that it was a deed, duly executed and recorded. by which the grantor conveyed land, reserving to himself a life estate therein. "Taking this to be true," it is said, “the proposition that the mere reservation of a life estate in Robinson [grantor] necessarily made the conveyance testamentary in its character is not maintainable. On the contrary, under our

system of conveyancing, the deed vested Mrs. Devaney with a present interest in the land, to be enjoyed in futuro."

And where, in Harris v. Saunders (1835) 2 Strobh. Eq. (S. C.) 370, note, the grantor, in an instrument in the form of a deed, conveyed a slave to his son, reserving to himself a life estate therein, the instrument is held to be a deed. "It had the form and requisites of a deed," the court says; "it was executed, published, and recited as a deed; and the transaction was always referred to by the donor as an actual gift."

So, notwithstanding a clause in a deed, wherein the grantor excepts and reserves to himself "a freehold estate for the term of” his natural life, “with full power of control and management as such tenant for life," it is held in Deckenbach v. Deckenbach (1913) 65 Or. 160, 130 Pac. 729, that the instrument is a deed, and not a will. "An estate for life," it is said, “although one of freehold, is not one of inheritance, and it will be observed that it does not reserve the right to convey the property, but only the power to control and manage; and not only so, but those functions are to be exercised only as such tenant for life.”

In Owen v. Smith (1893) 91 Ga. 564, 18 S. E. 527, the deed involved provides that the grantor reserves a life estate in the property conveyed, “with power to direct, manage, and control it as she sees proper, during her lifetime," and it is further provided that the grantee is to "live with her, care for and provide for her, supply her necessary wants, take care of and protect the property and herself," and that, upon compliance with these terms by the grantee, "whatever at her death is left, together with the natural increase thereof

is to belong to" the grantee in fee simple. In holding the instrument to be a deed, it is said: "A reasonable supposition as to her real intention is that an interest was to pass to him at the time of the delivery of the deed, with a postponement only of the possession and use until she should be dead." It is said in Riegel v. Riegel (1910)

243 III. 626, 90 N. E. 1108: "This deed contained a reservation of a life estate in the grantors, which raises a strong presumption that it was intended the title should immediately vest in the remaindermen, for the reason that, if such intention had not existed, there would be no reason for such reservation."

An instrument conveying negroes and their future increase absolutely to the grantee, and reserving "a life estate in the property," is a deed, and not a will. Robinson v. Schly (1849) 6 Ga. 515.

In Williams v. Tolbert (1880) 66 Ga. 127, an indenture, containing words. of present conveyance, an habendum clause, and a warranty, is held to be a deed under the Code, requiring the conveyance of a present interest as a requisite of a deed, although the maker specifically reserves to himself "a life estate in the tract of land . . . conveyed, to have, use, occupy, and enjoy the same during his natural life, and to take and enjoy the rents, issues and profits of the same during his life only."

And it is held in Prindle v. Iowa Soldiers Orphans Home (1911) 153 Iowa, 234, 133 N. W. 106, that the specific reservation of a life estate by the grantors, in a deed, does not render the instrument testamentary in character.

And in Cross v. Benson (1904) 68 Kan. 495, 64 L.R.A. 560, 75 Pac. 558, a trust deed reserving a life estate in the grantor, and providing that, upon her death, the property is to be sold and the proceeds invested for the benefit of a third person, is held not to be testamentary in character.

So, it is said in Sargent v. Roberts (1914) 265 Ill. 210, 106 N. E. 805, involving a deed reserving a life estate in the grantor, that "the reservation of a life estate in the grantor raises a strong presumption that it was intended that the title should immediately vest in the remainderman, for the reason that, if such intention had nct existed, there would be no reason for the reservation."

In Carter v. Walden (1911) 136 Ga. 700, 71 S. E. 1047, an instrument pur

porting to convey a tract of land is held to be a deed, although it contains a clause providing that the grantor "is to hold a lifetime lease on said . . land said lease to expire at the death of the party of the first part."

An instrument in the form of a deed conveying real estate to a grantee "after the expiration of the life estate herein reserved, in fee simple forever," is a deed conveying the property in præsenti, with the right of possession postponed until the grantor's death. Watkins v. Nugen (1903) 118 Ga. 372, 45 S. E. 262.

And see Muntz v. Whitcomb (1909) 40 Pa. Super. Ct. 553, where it is said by the court that the grantor reserved a life estate, but the exact language of the instrument is not set out.

And see King v. Slater (1910) 96 Ark. 589, 133 S. W. 173, infra, III. c, 2, (p); Worley v. Daniel (1892) 90 Ga. 650, 16 S. E. 938, supra, III. c, 2, (a); Love v. Blauw (1900) 61 Kan. 496, 48 L.R.A. 257, 78 Am. St. Rep. 334, 59 Pac. 1059, reversing on other grounds (1899) 9 Kan. App. 55, 57 Pac. 258, infra, III. c, 2, (o); Powers v. Scharling (1902) 64 Kan. 339, 67 Pac. 820, infra, III. c, 2, (i); Pentico v. Hays (1907) 75 Kan. 76, 9 L.R.A. (N.S.) 224, 88 Pac. 738, infra, III. c, 2, (g); Brady v. Fuller (1908) 78 Kan. 448, 96 Pac. 854, infra, III. c, 2, (k); Dennett v. Dennett (1860) 40 N. H. 498, supra, II. a, 2, (a). See also Trawick v. Davis (1888) 85 Ala. 342, 5 So. 83; Davenport v. Wynne (1845) 28 N. C. (6 Ired. L.) 128, 44 Am. Dec. 70.

In other cases involving similar instruments, the specific question as to the character of the instrument is not raised, it being assumed, apparently, that the instruments are deeds, and that the only question raised by the clause postponing the taking effect of the instrument is in respect of the extent or nature of the estate created in the grantee, or reserved in the grantor or his wife, thereby. It is not intended to go into these various questions of estate here, the cases being set out merely for whatever value they have upon the question here under discussion.

In Den ex dem. Ward v. Ward (1793) 1 N. C. pt. 1, p. 18 (Martin, pt. 1, p. 28) it is held that where a deed conveys absolutely to the grantee, an exception of the grantor's lifetime in any part or parcel of the land, contained in the premises, though not in the habendum, is void, and that the fee passes immediately to the grantee.

In Senterfeit v. Shealey (1904) 71 S. C. 259, 51 S. E. 142, involving a deed reserving "a lifetime claim" in the land to one of the grantors, a life estate is held to be reserved thereby to such grantor, the remainder vesting in the grantee.

So, where, in Hurst v. Hurst (1874) 7 W. Va. 289, the grantor reserved a "life interest" in the property conveyed, the court says that "when the owner of land in fee simple conveys the land in fee simple, reserving therein a 'life estate,' it should be construed as meaning an estate for the life of the grantor is reserved."

In Lemon v. Lemon (1918) 273 Mo. 484, 201 S. W. 103, the grantor reserved a life estate for himself and his wife in the property granted. The grantor's wife signed the instrument as a grantor, but had no interest therein, except her inchoate dower and a contingent estate of homestead, which she specifically declared it was her intention to retain. Under a statute requiring conveyances of land to be in writing, it is held that the wife, after the husband's death, took no interest or estate in the property by reason of the reservation, the words of the deed with respect thereto being words of reservation or exception, and not of grant, and she being a grantor, and not a grantee. The estate reserved for her life was held to have remained in the husband, he never having conveyed it to her.

See Lockridge v. McCommon (1896) 90 Tex. 234, 38 S. W. 33, where the grantor reserved a life estate in himself and his wife in specific language, providing further that they are to retain the use, enjoyment, control, and possession of the land, and that, at their deaths, their interest and estate in the lands shall cease, and all their