Marsh v. Rogers

• Decision Date: 16 December 1920
• Docket Number: 6 Div. 196
• Citation: 87 So. 790,205 Ala. 106
• Parties: MARSH et al. v. ROGERS.
• Court: Alabama Supreme Court

87 So. 790

205 Ala. 106

MARSH et al. v. ROGERS.

6 Div. 196

Supreme Court of Alabama

December 16, 1920

Appeal from Circuit Court, Blount County; W.J. Martin, Judge.

Proceeding by Florilla Rogers to probate an alleged will of Julia J Marsh, deceased, contested by Lee Marsh and others. From a decree admitting the will to probate, contestants appeal. Reversed and rendered.

Jerone Edmundson and J.S. McLendon, both of Birmingham, for appellants.

Ward Nash & Fendley, of Oneonta, for appellee.

ANDERSON C.J.

The instrument in question (which will be set out by the reporter) is in form a deed, has every earmark of one, and is unquestionably a deed, and not a testamentary document. There is no effort to postpone the operation of same until the death of the grantor, and the interest conveyed is not posthumous. Graves v. Wheeler, 180 Ala. 412, 61 So 341; Mays v. Burleson, 180 Ala. 396, 61 So. 75; Elmore v. Mustin, 28 Ala. 309; Sharp v. Hall, 86 Ala. 110, 5 So. 497, 11 Am.St.Rep. 28; Phillips v. Phillips, 186 Ala. 545, 65 So. 49, Ann.Cas.1916D, 994. The reservation by the grantor of the use and control of the land during her life did not postpone the operation of the deed until her death. Graves v. Wheeler, supra. On the other hand, the reservation of the use and control of the land during her life negatives an intention on her part to make it a testamentary document. If she meant it as a will, it could not become operative until her death, and the reservation of the use and control of the land during her life was needless, and the only necessity for such a reservation would be upon the idea and theory that it was a deed and could not be revoked by her. Mays v. Burleson, supra.

The intention of the maker is the controlling inquiry, and that intention is to be gathered, primarily, from the language of the instrument itself; but this does not, in case of inapt phraseology, preclude proof of instructions given to the draughtsman, in reference to the nature of the paper he was expected to prepare. The instrument in question, however, is not in inapt phraseology or of doubtful meaning, and needed no extraneous proof to establish the intention of the grantor; but if the evidence as to the grantor's directions and instructions, as well as the surroundings and attendant circumstances, was admissible, it does not show that she intended to make a will instead of a deed. We are also aware of the rule that in doubtful cases, if a paper can have no operation as a deed, but may as a will, it should be pronounced a will; but this ruling can have no application here, as this cannot be regarded as a doubtful case.

There are certain expressions in some of our earlier cases, which are cited in brief of appellee's counsel, not in thorough harmony with our more recent cases; but these earlier cases have been dealt...