But see Alexander v. Burnet (1851) 5 Rich. L. (S. C.) 189.

But the name of such an instrument does not determine conclusively the nature of the interest passed. Dunn v. Bank of Mobile (1842) 2 Ala. 152; Shepherd v. Nabors (1844) 6 Ala. 631; Walker v. Jones (1853) 23 Ala. 448; Gillham v. Mustin (1868) 42 Ala. 365; Jordan v. Jordan (1880) 65 Ala. 301; Abney v. Moore (1894) 106 Ala. 131, 18 So. 60; Daniel v. Veal (1861) 32 Ga. 589; Price v. Gross (1918) 148 Ga. 137, 96 S. E. 4; Heaston v. Krieg (1906) 167 Ind. 101, 119 Am. St. Rep. 475, 77 N. E. 805; Wall v. Wall (1855) 30 Miss. 91, 64 Am. Dec. 147; Re Diez (1872) 50 N. Y. 88; Henry v. Ballard (1816) 4 N. C. (2 Car. Law Repos.) 595; Egerton v. Carr (1886) 94 N. C. 648, 55 Am. Rep. 630.

"No matter that the paper is in name or form a deed, a bond, a note, or an agreement, if it is to pass title only at death, and vest no manner of estate till then, it is not a deed, bond, note, or agreement, but a will or testamentary paper, no matter what its maker called the paper or believed it to be. What does it say? What is its effect in law? That is the question." Lauck v. Logan (1898) 45 W. Va. 251, 31 S. E. 986.

So, it is said in Ferguson v. Ferguson (1864) 27 Tex. 339, that, whenever it appears that an instrument, although in the form of a deed, is intended to take effect as a will, "any contrary title or designation which the maker may have given to the instrument will be disregarded."

And in Cunningham v. Davis (1884) 62 Miss. 366, it is said that, if the instrument in question "was not to have any operation or effect until the death of the maker, it could not be treated as a deed, although it was so named, and is in form a deed."

See infra, III. b, 8.

3. Form as evidence of intent. The fact that an instrument containing a provision postponing its taking effect until after the death of the maker is in the form of a deed has been held to be evidence of the intention of the maker as to the nature of

the interest passed. Rawlings v. MrRoberts (1894) 95 Ky. 346, 25 S. W. 601; Fellbush v. Fellbush (1906) 216 Pa. 141, 65 Atl. 28, reversing (1904) 31 Pa. Co. Ct. 350; Alexander v. Burnet (1851) 5 Rich. L. (S. C.) 189.

"While it has often been held that the form of the instrument is not controlling, and, though in form a deed, it may nevertheless be construed as a will, yet the fact that the instrument is in form a warranty deed, containing the usual words of conveyance and covenance and covenants of warranty, should be given weight in ascertaining the intention of the grantor." SHAULL V. SHAULL (reported herewith) ante, 15.

So, it is said in Moye v. Kittrell (1860) 29 Ga. 677, that "the form is evidence of the intention of the maker." This is quoted with approval in West v. Wright (1902) 115 Ga. 277, 41 S. E. 602.

And in Watson v. Watson (1857) 22 Ga. 460, it is said: "The form of an instrument also may help to indicate the intention of its author."

And see Harris v. Saunders (1835) 2 Strobh. Eq. (S. C.) 370, note, infra, III. c, 2 (d).

But in Beebe v. McKenzie (1890) 19 Or. 296, 24 Pac. 236, it is held that the fact that the instrument in question "is, in form and phraseology, a deed, signifies nothing."

By the undisputed rule, the form of an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the grantor, does not determine conclusively the nature of the interest passed. Dunn V. Bank of Mobile (1841) 2 Ala. 152; Shepherd v. Nabors (1844) 6 Ala. 631; Gillham v. Mustin (1868) 42 Ala. 365; Jordan v. Jordan (1880) 65 Ala. 301; Seay v. Huggins (1915) 194 Ala. 496, 70 So. 113; Hester v. Young (1847) 2 Ga. 31; Daniel v. Veal (1861) 32 Ga. 589; SHAULL v. SHAULL (reported herewith) ante, 15; Rawlings v. McRoberts (1894) 95 Ky. 346, 25 S. W. 601; Sartor v. Sartor (1861) 39 Miss. 760.

It is said in Re Lautenshlager (1890) 80 Mich. 285, 45 N. W. 147, that "the form of any instrument is of

determining

little consequence in whether it is a will or not."

And in Cunningham v. Davis (1884) 62 Miss. 366, it is said that, if the instrument in question "was not to have any operation or effect until the death of the maker, it could not be treated as a deed, although it was so named, and is in form a deed."

And see Lauck v. Logan (1898) 45 W. Va. 251, 31 S. E. 986, supra, III. b, 2. See infra, III. b. 8.

4. Execution as evidence of intent.
(a) In general.

As a general rule, the manner of the execution of instruments in the form of deeds, containing provisions postponing their taking effect until after the death of the maker, are some evidence of the intention of the maker as to the interest passed by the instrument. If, for example, he executes the instrument in a manner not required in the case of deeds, but necessary to the validity of a will, the fact seems to point to a belief, on the part of the maker, that he has executed a will and, accordingly, constitutes some evidence of an intent to make such an instrument. But the manner of the execution of such an instrument does not determine conclusively the nature of the instrument or of the interest passed thereby.

See Re Lautenshlager (1890) 80 Mich. 285, 45 N. W. 147; Harris v. Saunders (1835) 2 Strobh. Eq. (S. C.) 370, note, infra, III. c, 2, (d); Ferguson v. Ferguson (1864) 27 Tex. 339, infra, III. b, 4, (b).

(b) Delivery.

Inasmuch as delivery is requisite to the validity of deeds, but not of wills, the fact that an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the grantor, is delivered, constitutes additional evidence that the maker intended the instrument to pass a present interest, and to constitute a deed. Worley v. Daniel (1892) 90 Ga. 650, 16 S. E. 938; Brice v. Sheffield (1903) 118 Ga. 128, 44 S. E. 843; Griffith v. Douglas (1904) 120 Ga. 582, 48 S. E. 129; Jones v. Lingo (1904) 120

Ga. 693, 48 S. E. 190; Sharpe v.. Mathews (1905) 123 Ga. 794, 51 S. E. 706; COLLIER V. CARTER (reported herewith) ante, 1; Saunders v. Saunders (1901) 115 Iowa, 275, 88 N. W. 329; SHAULL V. SHAULL (reported herewith) ante, 15; Herrington V. Bradford (1832) Walk. (Miss.) 520; Fellbush v. Fellbush (1906) 216 Pa. 141, 65 Atl. 28, reversing (1904) 31 Pa. Co. Ct. 350.

In Ferguson v. Ferguson (1864) 27 Tex. 339, the instrument is designated by its maker a deed, and its execution and phraseology are more analogous to deeds than to wills. It contains an habendum clause and the operative word "give," which might be used in either kind of instrument. It also contains a provision that the donees shall not take nor hold possession of the property until the death of the maker, which is said to be as consistent with the supposition that a present gift, with the reservation of a life estate, is meant, as that the instrument was intended to be of a testamentary character. On the other hand, the instrument attempts to dispose of property subsequently to be acquired by the maker, which gives it the flavor of a will. "The legitimate conclusion, therefore, to be deduced from the face of the paper," says the court, "leaves it a matter of doubt whether it was intended to operate as a deed or will. And, in such cases, the fact of its delivery, and the intention and purpose of its execution, should be submitted as questions of fact to the jury, to be guided in their determination of them, however, by the construction given to the terms of the instrument by the court, together with such extrinsic testimony as may be furnished by the parties, to aid in their elucidation."

And see Gilham v. Mustin (1868) 42 Ala. 365, infra, III. c, 3 (j); Abney v. Moore (1894) 106 Ala. 131, 18 So. 60, infra, III. c, 2, (g); Josey v. Johnston (1916) 197 Ala. 482, 73 So. 27, infra, III. c, 2, (b); Craft v. Moon (1917) 201 Ala. 11, 75 So. 302, infra, III. c, 2, (e); Bunch v. Nicks (1887) 50 Ark. 367, 7 S. W. 563, infra, III. c, 2, (g); Re Hall (1906) 149 Cal. 143,

84 Pac. 839; Moye v. Kittrell (1860) 29 Ga. 677, infra, III. b, 4, (c); Kisecker's Estate (1899) 190 Pa. 476, 42 Atl. 886, infra, III. c, 3, (d); Bethea v. Allen (1915) 101 S. C. 350, 85 S. E. 903, infra, III. c, 2, (a); TRUMBAUER V. RUST (reported herewith) ante, 10.

It is held, however, in Daniel v. Veal (1861) 32 Ga. 589, that the fact of delivery is not conclusive upon the question of the character of an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the maker.

See, however, in this connection, Hathaway v. Cook (1913) 258 Ill. 92, 101 N. E. 227, infra, III. c, 2, (g); Nowakowski v. Sobeziak (1915) 270 III. 622, 110 N. E. 809, infra, III. c, 2, (q).

For the same reason that delivery of an instrument in the form of a deed, containing a provision postponing its taking effect until the death of the grantor, is evidence of an intent on the part of the maker to execute a deed, a failure on the part of the maker to deliver the instrument is viewed as being indicative of an intent to execute a will, and not a deed.

The fact that the maker of an instrument in the form of a deed, but reserving the use, control, and consumption, does not deliver it, but places it in an envelop, indorsed, "Not to be opened until after my death," is said, in Sharp v. Hall (1888) 86 Ala. 110, 111 Am. St. Rep. 28, 5 So. 497, to be a proper subject of consideration in arriving at the testator's intention.

So, where, in Leonard v. Leonard (1906) 145 Mich. 563, 108 N. W. 985, an instrument in the form of a deed is construed to be testamentary in character, the court says that "this construction is in harmony with the conduct of the parties. There is no evidence of a delivery, or an intention to deliver the instrument during the lifetime of the makers."

And see Folk v. Varn (1857) 9 Rich. Eq. (S. C.) 303.

See also Nichols v. Chandler (1875) 55 Ga. 369, infra, III. c, 3 (h); Baxter v. Chapman (1917) 147 Ga. 438, 94 S. E. 544, infra, III. c, 3 (e).

(c) Recording.

Inasmuch as recording is requisite. to the validity of deeds, but not of wills, the fact that an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the grantor, is recorded, constitutes some evidence that the maker intended the instrument to pass a present interest, and to constitute a deed. Saunders v. Saunders (1901) 115 Iowa, 275, 88 N. W. 329; SHAULL v. SHAULL (reported herewith) ante, 15; Pentico v. Hays (1907) 75 Kan. 76, 9 L.R.A. (N.S.) 224, 88 Pac. 738; TRUMBAUER v. RUST (reported herewith) ante, 10.

After stating, in Moye v. Kittrell (1860) 29 Ga. 677, that the recording of a deed is equivalent to a delivery thereof to the grantee, it is said that the maker of the instrument in question, by putting it upon record, manifested his purpose to part with the title to the property conveyed, and to make the transfer irrevocable.

The recording of an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the grantor, is not, as a general rule, conclusive evidence of an intent on the part of the maker to execute a deed. Daniel v. Veal (1861) 32 Ga. 589; Pentico v.

Hays (1907) 75 Kan. 76, 9 L.R.A. (N.S.),

224, 88 Pac. 738.

However, in Rawlings v. McRoberts (1894) 95 Ky. 346, 25 S. W. 601, involving a deed postponing the taking effect of the grant till the death of the grantor, "it is said that "the significant fact that the instrument was to be put to record is substantially conclusive of the point involved. This shows its irrevocable nature."

See Wilson v. Carrico (1894) 140 Ind. 533, 49 Am. St. Rep. 213, 40 N. E. 50, infra, III. b, 9, (a).

(d) Acknowledging.

Inasmuch as acknowledgment is requisite to the validity of deeds, but not of wills, in most jurisdictions, the fact that an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the grantor, is acknowledged, constitutes some evidence that the

maker intended the instrument to pass a present interest, and to constitute a deed. Saunders v. Saunders (1901) 115 Iowa, 275, 88 N. W. 329; Pentico v. Hays (1907) 75 Kan. 76, 9 L.R.A. (N.S.) 224, 88 Pac. 738. And see Bunch v. Nicks (1887) 50 Ark. 367, 7 S. W. 563, infra, III. c, 2 (g); Emerson v. Pate (1914) Tex. Civ. App.

165 S. W. 469, infra, III. c, 2 (e). The fact that such an instrument is acknowledged, however, is not conclusive evidence of the intent of the maker to pass a present interest. Pentico v. Hays (1907) 75 Kan. 76, 9 L.R.A. (N.S.) 224, 88 Pac. 738.

(e) Attestation.

Where an instrument in the form of a deed, containing a provision postponing its taking effect until after the death of the maker, is not attested, as required of wills, it is evidence that the maker intended the instrument to pass a present interest, and to be a deed. Griffith v. Douglas (1904) 120 Ga. 582, 48 S. E. 129, infra, III. c, 2, (g); Sharpe v. Mathews (1905) 123 Ga. 794, 51 S. E. 706, infra, III. c, 2, (f); Isler v. Griffin (1909) 134 Ga. 192, 67 S. E. 854, infra, III. c, 2, (g); Mayo v. Fletcher (1911) 137 Ga. 27, 72 S. E. 408, infra, III. c, 2, (f); COLLIER V. CARTER (reported herewith) ante, 1.

Where, in Abney v. Moore (1894) 106 Ala. 131, 18 So. 60, an instrument in the form of a deed, containing a clause postponing its taking effect until after the grantor's death, is executed without the attestation of witnesses, it is said: “We must presume the maker knew that a will could not be executed without a witness, and tihs is a fact of very controlling importance, when the intention in the execution of the instrument is sought. Construing his intentions by his acts, he must have known that an acknowledgment before a notary public, in due form, was sufficient to make the paper a deed, so far as related to its execution, and that this was not sufficient for its legal execution as a will." And see Emerson v. Pate (1914) Tex. Civ. App. 165 S. W. 469, infra, III. c, 2, (e).

The manner of the attestation of

such instrument, however, is not conclusive of the character thereof.

In Jones v. Lingo (1904) 120 Ga. 693, 48 S. E. 190, it is said: "That three witnesses attested the instrument might be of importance, if its character was otherwise doubtful; but the instrument is not changed from a deed into a will, by the number of witnesses."

5. Effort to construe instrument as deed where not properly executed as will.

In addition to the rules set out above, making the execution of instruments in the form of deeds, containing provisions postponing their taking effect until the death of the maker, evidence of the intent of the maker, there exists another rule, generally accepted, to the effect that where such an instrument cannot operate as a will, because of insufficient execution, and it is sufficiently executed to operate as a deed, the courts will make an effort to construe it so as to prevent it from becoming a mere nullity. Craft v. Moore (1917) - Ala.

75 So. 302 (obiter); Wynn v. Wynn (1900) 112 Ga. 214, 37 S. E. 378; West v. Wright (1902) 115 Ga. 277, 41 S. E. 602; COLLIER v. CARTER (reported herewith) ante, 1; Saunders v. Saunders (1901) 115 Iowa, 275, 88 N. W. 329; Jacoby v. Nichols (1901) 23 Ky. L. Rep. 205, 62 S. W. 734; Hunt v. Hunt (1904) 119 Ky. 39, 68 L.R.A. 180, 82 S. W. 998, 7 Ann. Cas. 788; Thomas v. Williams (1908) 105 Minn. 88, 117 N. W. 155; Herrington v. Bradford (1832) Walk. (Miss.) 520; Clayton v. Liverman (1846) 29 N. C. (7 Ired. L.) 92; TRUMBAUER V. RUST (reported herewith) ante, 10.

And see Bowler v. Bowler (1898) 176 Ill. 541, 52 N. E. 437, and Jones v. Caird (1913) 153 Wis. 384, 141 N. W. 228, Ann. Cas. 1914A, 88, infra, III. c, 2, (0).

The foregoing rule, however, is merely a rule of construction, adopted in cases where the intent of the maker, as deduced from the language used in the instrument, is doubtful.

After holding, in Moye v. Kittrell (1860) 29 Ga. 677, that the instrument in question is a deed, and not a will,

the court says that even "if the words were doubtful, we should incline to that construction which would support the instrument. And this can be done only by holding it to be a deed. For as a will, it must fail, wanting the necessary attestation."

Commenting on this case, Little, J., in a dissenting opinion in West v. Wright (1902) 115 Ga. 277, 41 S. E. 602, says: "In the case of Moye v. Kittrell (Ga.) supra, it was said that, if the words of the instrument are doubtful, the court would incline to that construction which would support the instrument; and there can be no doubt that is sound policy, as well as the correct rule for the construction of instruments of this character. But it is only applicable when the words of the instrument create a doubt whether the maker of it intended to convey a present estate." And where, in Dismukes v. Parrott (1876) 56 Ga. 531, the instrument, construed as a will, would be a nullity because of the lack of sufficient witnesses, the court, being doubtful as to the construction thereof, holds it to be a deed, so as to give effect to it.

However, it is said in Louck v. Logan (1898) 45 W. Va. 251, 31 S. E. 986: "The law says that property can be passed by the act of the parties only by deed or will, and when a paper is a will, it is not a deed. If

it were an open question, I would say that the law ought to give a paper, not so executed as to be good as a will, effect as a deed, if good as a deed, and a paper, executed so as not to be good as a deed, effect as a will, if good as a will."

6. Effort to construe instrument as will where not properly executed as deed. In addition to the rules set out above, making the execution of instruments in the form of deeds, containing provisions postponing their taking effect until the death of the maker, evidence of the intent of the maker, there exists another generally accepted rule, to the effect that, where such an instrument cannot operate as a deed because of insufficient execu

tion, and it is sufficiently executed to operate as a will, the courts will make an effort to construe it so as to prevent it from becoming a mere nullity. TRUMBAUER v. RUST (reported herewith) ante, 10.

See Louck v. Logan (1898) 45 W. Va. 251, 31 S. E. 986, supra, III. b, 5.

It is pointed out, supra, III. b, 5, that the rule relating to the effort made by the courts to construe an instrument as a deed, where not properly executed as a will, has application only in cases where the intent of the maker as to the nature of the interest passed is left doubtful, by the language used in the instrument. What is said there applies with equal force here. Where the intent of the maker clearly appears from the language used, the courts will not override it, merely to prevent the instrument from being invalid.

In Sharp v. Hall (1888) 86 Ala. 110, 11 Am. St. Rep. 28, 5 So. 497, it is said: "If a paper cannot have operation as a deed, but may as a will, then, in doubtful cases, we should pronounce it a will, 'ut res magis valeat."" In that case, the instrument in question was not delivered by the maker, but was placed in an envelop, indorsed, "Not to be opened until after my death."

In connection with this section, reference is made to III. b, 7, infra, where it is stated as a general rule that the courts will make an effort to construe as a will any instrument in the form of a deed, containing a provision preventing its taking effect until the death of the maker, some of the provisions of which would be without effect, were the instrument construed to be a deed.

7. Effort to construe instrument as will where provisions can have no effect as deed.

In order to prevent an instrument in the form of a deed, containing a clause postponing its taking effect until after the death of the maker, from becoming a nullity because effect cannot be given to provisions of the instrument, operating as a deed, it is a general rule that, in such cases, the