Trawick v. Davis

• Decision Date: 06 December 1888
• Citation: 5 So. 83,85 Ala. 342
• Parties: TRAWICK ET AL. v. DAVIS ET AL.
• Court: Alabama Supreme Court

5 So. 83

85 Ala. 342

TRAWICK ET AL. v. DAVIS ET AL.

Supreme Court of Alabama

December 6, 1888

Appeal from chancery court, Dale county; JOHN A. FOSTER, Judge.

Bill by Ann E. Davis against Elijah A. Trawick, Thomas Trawick Amanda Pate, and her husband, to set aside a conveyance by Lucinda Trawick, mother of complainant, by a former marriage of her separate estate, to G. N. Trawick, her husband, and defendant Elijah A. Trawick, her son, and a conveyance of the same property by G. N. Trawick to defendants Elijah A. and Thomas Trawick. Defendants Amanda Pate and her husband were on their petition, made complainants. Decree for complainants, and defendants appeal.

J C. Cowan and W. C. Oates, for appellants.

W. E. Mauldin and J. A. Clendemion, for appellees.

CLOPTON J.

On February 7, 1887, Lucinda Trawick, who was a married woman, executed to her husband, G. N. Trawick, and her son Elijah A. Trawick, a conveyance of real and personal property, for their use and benefit during the term of her natural life. On March 20, 1887, she executed to them another conveyance of the same property, for the purpose of correcting a mistake in the first conveyance in respect to the estate intended to be conveyed and the time it should take effect. In June, 1879, her husband, in consideration of love and affection, conveyed the same property to his sons Elijah A. and Thomas Trawick. Mrs. Trawick died in 1884. The bill was filed originally by Ann E. Davis, who was a daughter of the deceased by a former marriage, and sought to have the foregoing conveyances declared void and inoperative, and her personal property distributed among her distributees. The bill alleges that there has been no administration of her estate, and that she owed no debts at the time of her death. The estate being free from debt, and the action of the probate court not having been invoked by the heirs and distributees, a bill will be maintained for the purpose of allotting to them their respective shares without the expense and delay of an administration. Miller v. Eatman, 11 Ala. 609; Marshall v. Crow, 29 Ala. 278. The defendants do not controvert the equity of the bill, but, in order to defeat complainant's right to the relief prayed for, set up the conveyances made by Mrs. Trawick and her husband, under which they claim title.

They insist that the conveyance of March 20, 1877, is a will, and that effect should be given to it as such. Whether an instrument is testamentary, or a conveyance operating to create estates and rights upon its execution, is often a question of great difficulty. When it can have no effect as a deed, the court is inclined to regard it as a will, if in that character effect can be given to the evident intention of the maker. The controlling question is whether the maker intended that an estate or interest should vest before his death. If such be the intention, and the instrument can reasonably thus operate, it will be upheld as a deed. While the estate conveyed must vest upon the execution of the instrument, the passing of immediate rights of possession and enjoyment is not essential to constitute a deed, and the reservation of a life-estate does not of itself make it a will. Hall v. Burkham, 59 Ala 349; Jordan v. Jordan, 65 Ala. 301. The instrument is properly executed either as a will or a deed. After employing the usual words of grant and conveyance, the language: "To have and to hold the same to the said George N. Trawick and Elijah A. Trawick forever; but this conveyance is not to take effect and be in force till my death,-my purpose and intention being to reserve a life-estate for myself in all of said property, and at my death to pass absolutely to said George N. Trawick and Elijah A. Trawick, and to them alone." If the words, "this conveyance is not to take effect and be in force till my death," stood alone, they would clearly indicate that no estate or interest should pass upon the execution of the instrument. But the intention of the maker must be ascertained from all of its terms and the surrounding circumstances. It is manifest that the first instrument was intended to vest, and does vest, a present estate, and immediate right of enjoyment, to continue during the life of the grantor. The second instrument has direct relation to the first, and purports on its face to have been made for the purpose of correcting mistakes in the first. The maker declares her intention, in making the second instrument, to reserve a life-estate for herself, and at her...