Saunders v. Saunders

Sherwin, J.

If the instrument under consideration is not a deed conveying a present interest in the land, it is nothing of any validity; for it cannot be enforced as a will, because not properly executed. The appellant concedes, and rightly so, that but for the language, “The intention being *277 that this deed shall not be in force or take effect until after the death of the grantor herein,” the instrument would be a deed conveying a present estate, but with the possession and enjoyment thereof postponed until after the death of .the grantor. It is fundamental that the intention of the maker of an instrument must'control in all cases of thÍ3 kind, if the intention can be ascertained from the 'entire instrument, and the true test, to determine whether it is a deed or a will is whether it is to take effect immediately, or only upon the death of the maker. This instrument recites a valuable consideration paid by the defendant. It says that the maker does “hereby sell and convey” land accurately and specifically described. It contains a covenant that the maker holds said premises by “good and perfect title;” that she has “good right and lawful authority to sell and convey the game;” that it is free from all incumbrances; and the title is warranted. It was acknowledged, delivered, and filed for record in the proper office, and duly recorded. All of these matters are considered as strong evidence of an intention to convey an interest in praesenti. Again, the instrument cannot- be given force as a will, and the law presumes that the maker knew what requisites were necessary to give it such character, and that they were intentionally omitted. It is also to be presumed that she intended to malee a valid instrument, and it will be so construed if possible. The instrument says that the conveyance is “subject, however, to the occupancy and possession of said real estate for and during the natural life of the grantor.” It will be noticed that the language here used is only consistent with the conveyance of a present interest, and furnishes a strong indication of the intent of the grantor. Then in the language following the instrument is referred to as f a “deed,” and from the whole instrument there can be but little question as to the grantor’s intention when she executed it. That she fully intended to convey a present interest in the land, the enjoyment of which only was to- be postponed until *278 after her death, we do not doubt. The statement of intention that the deed shall not be effective until after her death was evidently an attempt to more fully and explicitly set forth the fact that the conveyance was subject to her use and occupancy during life. It follows immediately thereafter, and must be read in connection therewith. It was tomalm' certain the intention to retain possession of the land during’ life, and nothing more. Jones, Neal Property, section 527; Page, Wills, section 52; Schouler, Wills (3d Ed.) section 272; Wilson v. Carrico, 140 Ind. 533 (40 N. E. Rep. 50, 49 Am. St. Rep. 213 ); Latimer v. Latimer, 174 Ill. Sup. 418, (51 N. E. Rep. 548); Phillips v. Lumber Co., 94 Ky. 445 ( 22 S. W. Rep. 652 , 42 Am. St. Rep. 367 ); Seals v. Pierce, 83 Ga. 787 ( 10 S. E. Rep. 589 , 20 Am. St. Rep. 344 ) ; White v. Hopkins, 80 Ga. 154 ( 4 S. E. Rep. 863 ); Sharp v. Hall, 86 Ala. 110 (5 South. Rep,. 497, 11 Am. St. Rep. 28 ) ; Burlington University v. Barrett, 22 Iowa, 60 ; Hinson v. Bailey, 73 Iowa, 544 . The appellant relies upon Leaver v. Gauss, 62 Iowa, 314 , to support his contention. At first blush it might appear to-do so, but in reality it does not. In that case the instrument was a deed in form but contained this language: “To commence after the death of both of .the said grantors.”' and, “It is hereby understood and agreed between the grantors and the grantees that the grantees shall have no interest in said premises as long as the grantors, or either of them, shall live/’ It was held that the sentence last quoted was, in effect a declaration that no estate was created and the case was decided on that , theory. Her© there is no such declaration, and we are left to determine the true intent from the entire instrument.

We think it is a deed, and the judgment of the district COUrt ÍS AFFIRMED.