Craft v. Moon

• Decision Date: 05 April 1917
• Docket Number: 8 Div. 998
• Citation: 75 So. 302,201 Ala. 11
• Parties: CRAFT v. MOON et al.
• Court: Alabama Supreme Court

75 So. 302

201 Ala. 11

CRAFT v. MOON et al.

8 Div. 998

Supreme Court of Alabama

April 5, 1917

Rehearing Denied May 17, 1917

Appeal from Chancery Court, Madison County; James E. Horton, Jr. Chancellor.

Bill by Mary J. Craft against J.P. Moon and others, to declare an instrument a will, or, if found not to be a will, to declare the instrument void and canceled as a deed; also to declare a lease void and canceled, and have same surrendered. From a decree dismissing the bill complainant appeals. Affirmed.

The instrument directed to be set out is as follows:

"Know all men by these presents, that I, Mary J. Craft for and in consideration of the love and affection which I bear towards J.P. Moon, Jr., and his wife, L.M. Moon, do hereby give, grant and convey unto said J.P. Moon, Jr., and his wife L.M. Moon, the following described real estate situated and being in said county, to wit [here follows description by government subdivision] to have and to hold the said tract or parcel of land with the tenements or appurtenances thereunto belonging unto the said J.P. Moon and his wife, L.M. Moon, and heirs after my death, forever. The full use and control of the above land being reserved to myself during my natural life, but after my death, this deed is to have full force and effect. In testimony whereof, I have hereunto set my hand and affixed my seal, this the 9th day of September 1899.

"[Signed]Mary J. Craft."

The instrument was duly acknowledged before a justice of the peace in the usual form of acknowledgments to deeds, and recorded on November 6, 1899, in Deed Book 85, p. 638.

David A. Grayson and Betts & Betts, all of Huntsville, for appellant.

R.E Smith and Spragins & Speake, all of Huntsville, for appellees.

MAYFIELD J.

Two questions which will control the disposition of this case are: First, is the particular instrument in question (which the reporter will set out) a deed or a will; second, if a deed, is it void or voidable because procured by undue influence, and was there consideration sufficient to support it as a conveyance of land?

The intention of the maker is the ultimate object of the inquiry to determine whether a given document is a deed or a will; as to whether it is intended to be ambulatory and revocable or to create rights and interests at the time of its execution. If it cannot be revoked or impaired by the grantor, it is a deed, but if the grantor recites an unqualified power of revocation, it is a will. Griswold v. Griswold, 148 Ala. 239, 42 So. 554, 121 Am.St.Rep. 64.

A written instrument may sometimes operate both as a will and as a deed; that is, partly as a deed and partly as a will. Kyle v. Perdue, 87 Ala. 423, 6 So. 296.

As to the rules of construction of written instruments for the purpose of determining whether they be wills or deeds, they are not clearly defined in the law books. There is no uniform test. The following principles may be observed in their construction: Deeds are irrevocable; wills are always revocable during testamentary capacity; deeds take effect by delivery; wills take effect only after death of testator. If a given instrument can be operative as one and not as the other, courts are inclined to hold it to be that to which effect can be given it. The intent of the maker is always a controlling inquiry. Sharp v. Hall, 86 Ala. 110, 5 So. 497, 11 Am.St.Rep. 28.

While the passing of present and immediate right of possession and enjoyment is not essential to constitute the instrument a deed, and the reservation of the use and enjoyment of the property to the grantor during his life does not, of itself, make it a will, yet if it has not present effect in fixing the terms of such future enjoyment, and requires the death of the alleged testator for its consummation, when the interest and enjoyment are posthumous, it is a will, if properly executed as such. Trawick v. Davis, 85 Ala. 342, 5 So. 83; Griffith v. Marsh, 86 Ala. 302, 5 So. 569; Sharp v. Hall, supra; Elmore v. Mustin, 28 Ala. 309; Crocker v. Smith, 94 Ala. 295, 10 So. 258, 16 L.R.A. 576.

A writing under seal, in form a deed, conveying to the grantor's daughter and her children, by present words of gift, in consideration of natural love and affection, several slaves and other property, and containing this clause:

"The condition of the above named gift is to take place at my

...