Smith v. Davis

• Decision Date: 05 April 1917
• Docket Number: 8 Div. 990
• Parties: SMITH v. DAVIS et al.
• Court: Alabama Supreme Court

75 So. 22

199 Ala. 687

SMITH v. DAVIS et al.

8 Div. 990

Supreme Court of Alabama

April 5, 1917

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

Suit by Elizabeth Smith against Ida Davis and others. From an adverse decree, complainant appeals. Affirmed.

Wall &amp Holman, of Athens, for appellant.

W.T Sanders, of Athens, for appellees.

This cause was submitted and considered under rule 46. The opinion was prepared by Mr. Justice THOMAS.

The complainant by her bill seeks to have canceled a certain deed executed by her to respondents on the 8th day of November 1915. The grounds for annulment alleged are, in effect, that complainant executed the deed as the result of a fraud perpetrated by the husband of one of the respondents, in that said instrument was represented to her, by such person, to be a will and not a deed; and that complainant intended to execute a will and not a deed. The bill is aided by the further averment that complainant is aged and infirm, unable to read and write, and inexperienced in business transactions. We have carefully examined the evidence without indulging presumptions in favor of the correctness of the chancellor. Though the evidence shows that the husband of one of the respondents had discussed with complainant the matter of a conveyance, there was proven no dominance or undue influence over complainant, nor false representations made to her, nor fraud in the transactions that culminated in the execution and delivery of the conveyance sought to be canceled. The instrument in question was in form a deed reserving to grantor the intervening use and possession of the property conveyed, to the time of her death.

When a written instrument conveying real property may on its face operate either as a deed or as a will, it must be determined whether it is so executed as to operate as either; and then the controlling inquiry is, which operation and effect the maker intended it to have. That is to say, whether the maker intended to pass a present interest or estate to the grantee or an estate to vest on the death of the maker or grantor. This intention is to be ascertained not only from the instrument itself, but from the facts and circumstances attending its execution. Abney v. Moore, Adm'r, 106 Ala. 131, 18 So. 60; Elmore v. Mustin, 28 Ala. 309; Daniel v. Hill, 52 Ala. 430; Hall v. Burkham, 59 Ala. 349; Sharp v. Hall, 86 Ala. 110, 5 So. 497, 11...