Sharp v. Hall

• Decision Date: 26 February 1889
• Citation: 86 Ala. 110,5 So. 497
• Parties: SHARP ET AL. v. HALL.
• Court: Alabama Supreme Court

5 So. 497

86 Ala. 110

SHARP ET AL. v. HALL.

Supreme Court of Alabama

February 26, 1889

Appeal from probate court, Colbert county; JOHN A. STEELE, Judge.

This was a proceeding to probate the will of Ann E. Hornsby deceased. The appellee, Julia W. Hall, propounded the instrument alleged to be a will for probate, and it was contested by the appellants, G. A. and U. M. Sharp, who claimed to be next of kin of the deceased. On the trial of the cause the contestants objected, and reserved several and separate exceptions to the admission in evidence of the circumstances of the making of the instrument contested; the relation the petitioner bore the deceased, Ann E. Hornsby the non-delivery of the instrument; and the other facts as shown by the opinion. There were also separate exceptions reserved to the admission of the testimony of the witness Davis to the effect that he considered the instrument a will and that he intended to draft a will. The grounds of these objections, and also of the objection and admission of the evidence in rebuttal, are shown in the opinion. The defendants requested the following charge in writing, and excepted to the court's refusal to give the same "(6) The fact, if it be a fact, that Mrs. Hornsby did not dispose of all the property, must be considered with the other evidence by the jury to ascertain whether or not the instrument was intended to be a will." The other material facts appear in the opinion. There was a trial by jury, and a verdict for the proponent, followed by a judgment admitting the will to probate, and the contestants appeal.

Kirk & Almon, for appellants.

J. B. Moore, for appellee.

STONE C.J.

There are few, if any, questions less clearly defined in the law books than an intelligible, uniform test by which to determine when a given paper is a deed, and when it is a will. Deeds, once executed, are irrevocable, unless such power is reserved in the instrument. Wills are always revocable so long as the testator lives and retains testamentary capacity. Deeds take effect by delivery, and are operative and binding during the life of the grantor. Wills are ambulatory during the life of the testator, and have no effect until his death. Out of this has grown one of the tests of testamentary purpose, namely, that its operation shall be posthumous. If this distinction were carried into uniform, complete effect, and if it were invariably ruled that instruments which confer no actual use, possession, enjoyment, or usufruct on the donee or grantee during the life of the maker are always wills, and never deeds, this would seem to be a simple rule, and easy of application. The corollary would also appear to result naturally and necessarily that if the instrument, during the life-time of the maker, secured to the grantee any actual use, possession, enjoyment, or usufruct of the property, this would stamp it irrefutably as a deed. The authorities, however, will not permit us to declare such inflexible rule. A declaration of trust by which the grantor stipulates to hold in trust for himself during life, with remainder to a donee, or succession of donees, certainly secures no use, enjoyment, or usufruct to the remainder-man during the grantor's life. Yet it is a deed, and not a will. 1 Bigelow, Jarm. Wills, 17, and notes; Gillham v. Mustin, 42 Ala. 365. Can a tangible distinction be drawn between such case and a direct conveyance, in form a deed, by which A. conveys to B., to take effect at the death of A.? The human mind is not content with a distinction that rests on no substantial difference. Conveyances reserving a life-estate to the grantor have been upheld as deeds. 2 Devl. Deeds, § 983; Robinson v. Schly, 6 Ga. 515; Elmore v. Mustin, 28 Ala. 309; Hall v. Burkham, 59 Ala. 349. In Daniel v. Hill, 52 Ala. 430, 436, this court said: "A deed may be so framed that the grantor reserves to himself the use and possession during his life, and on his death creates a remainder in fee in a stranger." Almost every conceivable form of conveyance, obligation, or writing, by which men attempt to convey, bind, or declare the legal status of property, have, even in courts of the highest character, been adjudged to be wills. The form of the instrument stands for but little. Whenever the paper contemplates posthumous operation, the inquiry is, what was intended? 1 Bigelow, Jarm. Wills, 20, 25; Habergham v. Vincent,2 Ves. Jr. 204; Jordan v. Jordan, 65 Ala. 301; Daniel v. Hill, 52 Ala. 430; Shepherd v. Nabors, 6 Ala. 631; Kinnebrew- v. Kinnebrew,35 Ala. 638 Dunn

v.

Bank, 2 Ala. 150. The intention cannot be proved by a witness speaking directly thereto. But this does not, in cases of inapt phraseology,-such as the present instrument discloses,-preclude proof of instructions give to the draughtsman, in reference to the nature of the paper he was expected to prepare. In Green

v.

Proude, 1 Mod. 117, 3 Keb. 310, the paper had striking characteristics of a deed; but the court said: "Here being directions given to make a will, and a person sent for to that end and purpose, this is a good will." Speaking of this case, Jarman (1 Bigelow's Ed. p. 19) says: "The court seems to have been influenced by the circumstances that the person who prepared it was instructed to make a will." In Wareham

v.

Sellers, 9 Gill & J. 98, the court decided that testimony should have been received of "conversations of the deceased, made at the time of executing the said paper, and from the other circumstances, that the said P. S. made and executed the said paper as and for his last will and testament, and intended it as such." In this case the controversy was whether the paper was a deed or a will. To the same effect is Witherspoon

v.

Witherspoon, 2 McCord, 520. So all the attending circumstances may be put in proof as aids in determining whether the maker intended the paper should operate as a deed or a will, whenever it is so framed as to postpone actual enjoyment under it until the death of the maker. Gillham

v.

Mustin, 42 Ala. 365; Daniel

v.

Hill, 52 Ala. 430; Campbell

v.

Gilbert, 57 Ala. 569; Jordan

v.

Jordan, 65 Ala. 301; Rice

v.

Rice, 68 Ala. 216; Lee

v.

Shivers, 70 Ala. 288; 1 Bigelow, Jarm. Wills, 25; Gage

v.

Gage, 12 N.H. 371; Mealing

v.

Pace, 14 Ga. 596, 630; Symmes

v.

Arnold, 10 Ga. 506; Jackson

v.

Jackson, 6 Dana, 257. Another pertinent inquiry. If a paper cannot have operation as a deed, but may as a will, then in doubtful cases we should pronounce it a will, utres magis valeat. Bigelow, Jarm. Wills, 21, 22, 24, 25; Attorney General

v.

Jones, 3 Price, 379; Gage

v.

Gage,12 N.H. 3 71; Symmes

v.

Arnold, 10 Ga. 506.

The instrument sought to be established as a will is in form a nondescript. It clearly shows on its face that the donee or grantee was to have no actual enjoyment of the property-no usufruct-during the life of the maker. Its language is "I do hereby reserve the use, control, and consumption of the same to myself for and during my natural life." We hold that the paper, on its face, falls within the indeterminate class, which, according to circumstances, may be pronounced a deed or a will. We also hold that, on the trial of the issue, it was competent to prove that the maker was without lineal or other very near relatives; that she was attached to the donee, who was a member of her household; that she sent for the draughtsman of the paper, and employed him to write her will, and that, in pursuance of such employment, he wrote the paper in controversy, and that she signed it with a knowledge of its contents, and had it attested; that she did not deliver it, but had it placed in an envelope, and indorsed, "Not to be opened till after my death;" and that she carefully preserve it in such envelope until her death. Now, all these facts and circumstances, if proven and...