Crocker v. Smith

• Decision Date: 24 November 1891
• Citation: 10 So. 258,94 Ala. 295
• Parties: CROCKER v. SMITH, ET AL.
• Court: Alabama Supreme Court

10 So. 258

94 Ala. 295

CROCKER v. SMITH, ET AL.

Supreme Court of Alabama

November 24, 1891

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

Ejectment by B. F. Smith, et al. against Wiley E. Crocker to recover their undivided interest in certain lands. The rights of the parties rested on the construction of a certain instrument executed by one David Fleming, and the case was submitted on an agreed statement of facts. Plaintiffs had judgment, and defendant appeals. Reversed, and judgment rendered for defendant.

W L. Parks, John Gamble, Sr., and Alex. T London, for appellant.

P O. Harper, for appellees.

CLOPTON J.

The parties having agreed in the circuit court that if the instrument executed by David Fleming, September 17, 1887, is construed to be a deed, judgment should be rendered for plaintiffs; and if a will, for defendant; and, this being the only question on which any ruling was asked or made by the court, the judgment on this appeal must also depend on the interpretation of the instrument. The general characteristics which distinguish deeds from wills have been repeatedly declared, yet no definite uniform test has been stated by which to determine the character and operation of each particular instrument, and none can well be. The intention of the maker is the ultimate object of inquiry,-whether it was intended to be ambulatory and revocable, or to create rights and interests at the time of execution which are irrevocable. If the instrument cannot be revoked, defeated, or impaired by the act of the grantor, it is a deed; but if the estate title, or interest is dependent on the death of the testator if in him resides the unqualified power of revocation,-it is a will. Jordan v. Jordan, 65 Ala. 306. Ordinarily the intention is to be collected from the terms of the instrument, considered in the light of the surrounding circumstances; but, there being no proof of the circumstances under which the instrument was executed, consideration is necessarily limited to the operation of its terms. The purpose and consideration are expressed as follows: "Being moved and influenced, as I have uniformly been, from the natural love and affection which I have and bear for and towards my beloved wife, Sarah Ann Fleming, being able to provide well for her in after life, as well as for her present comfort, and that she may have and enjoy a permanent and substantial estate and property, and from the further consideration of one dollar, and, further, that my said wife has aided me in the accumulation of the estate I am possessed of;" followed by these words of conveyance: "I hereby give, convey, and confirm unto my said wife, and her heirs in absolute right, all my entire estate, real and personal, lands, negroes, stock, and all manner of property which I now, or may hereafter, own," excepting a negro girl, which was given to his sister-in-law. The instrument was sufficiently executed to operate as a deed or will, and has appended a certificate of proof of execution and of registration. It has been said that these facts raise the presumption of delivery, and are persuasive to show that the maker regarded...