
    Wm. M. Williams and others vs. John Sullivan and others.
    
      Deed — Delivery— Gift.
    
    "Where the grantee takes possession of the deed in the presence of the grantor and without objection on his part, that is a sufficient delivery.
    Where the grantee is found in possession of the deed, delivery will be presumed ' until the contrary is shown.
    An instrument, in form a deed, whereby the grantor gave and granted f at her death’ certain negroes, held, to be a deed and not a will.
    BEFORE DARGAN, OH., AT EDGEFIELD,
    JUNE, 1857.
    Dargan, Ch. Mrs. Elizabeth Sullivan, an aged lady, (87 or 90 years old at her death,) departed this life on the 20th January, 1857, intestate, leaving some real and personal estate, and leaving as her heirs and distributees the persons described in the bill as such; and all of whom are parties before the Court in this proceeding, either as complainants or defendants. The bill prays a partition. A portion of the negroes of which the intestate died possessed are claimed by one of her heirs, namely the defendant, Jdhn Sullivan, by virtue of a deed of gift to him executed by the intestate in her life time. This deed the plaintiffs claim to have set aside on various grounds, and ask to have partition awarded of the negroes covered by the said deed. At the trial there was no controversy save that which related to this deed.
    The grounds upon which the plaintiffs claim to have the deed set aside, are first, that the grantor, Elizabeth Sullivan, was aged and infirm of mind, and that the gift was procured from her by undue influence and control; second, that it was not delivered. , And third, that it was not a deed, but a testamentary paper, void for the Avant of due attestation; there being only two witnesses.
    
      That Mrs. Sullivan’s life was protracted to an extraordinary length, far beyond that usually allotted to man, is most true But so far from its having been shown that she was imbecile ' in any sense, that could make her deeds or contracts void, the very reverse of this state of things was clearly established. It appears that considering her extreme age, her understanding was uncommonly vigorous, and this strength of mind she retained to her last day. Nor was there any proof that the deed was procured from her from any persuasion or influence. There can scarcely be a doubt, that if a strong minded person thinks proper to yield to persuasion and solicitation in the disposition of his property in favor of the person using such means of influence, the instrument by which the.disposition ' of the property was made can npt be set aside for that reason. There must concur in the case, such imbecility of mind on the part of the donor, as shows him to be capable of being influenced and controlled, and there must be satisfactory proof that such influence and control were actually exercised. If this were not the rule, weak minded persons would be denied the jus disponendi, and would be incapable of making a will or a deed at all. In this case there was no competent proof that the old lady had been solicited to make the deed. The only pretence of a showing on this point, was proof of some parol declaration of Samson Sullivan that the old lady had been persuaded out of the deed by John Sullivan. I need not dilate on this part of the case. The counsel for the plaintiff did not.seem to press it seriously.
    The next question is as to the delivery of the paper. The plaintiffs deny that there was delivery, which would be regarded in law as such. The manner of the delivery was this, as sworn to by Sam. P. Getzen, one of the subscribing witnesses. He says, “ I knew Elizabeth Sullivan intimately, lived about the fourth of a mile from her ever since 1840. Did’nt know Mrs. S.’s'age, she was very old; I was present when the deed in question was executed. Dont know when it was. Suppose Mrs. S. could not read writing. Dont Mow» that she could not. I saw her make her mark. The deed in question was read to Mrs. S. before she signed it. I can’t say who read it — either Samson Sullivan or David Glover. I remember her saying something about wanting the word “ increase” put in that deed as regards Lucy. (Lucy was one of the negroes conveyed.) This rendered her uneasy. I have heard her talk about Jack as having worked hard for her, which was the reason she wanted to make a deed. This was before the deed was signed. The day after it was signed, Jack Sullivan came up to the village to see if it was properly done and every thing right about it. I can’t say whether the deed was, or was not delivered to Jack Sullivan. It was there among them. I don’t know who took the deed.” In- his cross examination, he says, “ the parties present thought the uspal formalities were observed.”
    David Glover, the other subscribing witness, on the matter of the delivery, testified as follows: He said he was present when a deed was signed by her, (Mrs. Sullivan;) S. Sullivan read it to her; she said it was written right; the way she wanted her property to go. After signing, Mrs. S. did nothing with the deed. Sampson Sullivan said to Jack, (John Sullivan, the donee,) “you’d better put it away.” Jack took the paper. This witness made probate of the deed before the Clerk of the Court. It was recorded in the office of the Register of Mesne Conveyances, 7th June, 1841. The date of its execution is 5th of June, 1841.
    This is the whole of the evidence bearing upon the question of delivery. In my judgment it is amply sufficient. If after the due execution of a deed, or other instrument requiring delivery for its consummation, the party entitled to its keeping takes possession of it, by the direction or tacit acquiescence of the grantor, or party to be bound, or in his presence, without protestation on his part, that is a due delivery to all intents and purposes. I go farther, and say, that if, after the due execution of any instrument requiring for its validity the formality of delivery, it is found in the possession of the party in whose favor it is made, and who is entitled to its possession, a delivery is presumed; and this presumption must stand until the contrary is shown — the onus resting upon the party disputing the delivery. The proof in this case, brings it clearly within the requirements of these rules. The judgment of the Court is that the deed in question was duly delivered.
    The remaining question to be considered is, whether the instrument executed by Mrs. Sullivan on the 5th June, 1841, is in its form and dispositions a deed, and can have the operation of a deed, or is it a testamentary paper void for the want of a legal attestation. The testamentary character may be made to appear in three ways; by the declaration of the testator in the will itself, by his parol declarations and explanations accompanying its execution, and by the character of the disposition of the property which he makes — showing that the instrument is intended to take no effect and to create no right until the event of his death. Though such a paper may be in the form of deed, it can only have the effect of a testament. It is in the latter category, the plaintiffs seek to place the instrument in question. That class of cases, of which Taggers vs. Estis, may be considered as the exponent, does not conflict with the rule as above defined. The circumstance that by the terms of the deed, the enjoyment of the property given is postponed till the death of the donor, does not of itself, stamp it with the testamentary character, if it appear that he intended to do an irrevocable act, and to create now a right to the future enjoyment of the chattel given. If this intent does not appear upon the face of the instrument, it is void as a deed, and might, if sufficiently attested, be admitted, to probate as a testament.
    This paper is in the form of an absolute deed, except where she qualifies it by the word “ at my death.” Mrs. Sullivan by this instrument gives to John Sullivan, his heirs, &c., “the following negro property at my death, namely, Lucy and her six children, together with her increase,” here follows a description of the negroes. 'Immediately following the description are the words “to have and to hold J;he said negroes unto him the said John Sullivan, his heirs, executors, administrators forever, under the following proviso,” namely: This proviso creates a limitation in favor of her son Sampson Sullivan, in case John “should die without lawful issue,” a void limitation in fact. The deed concludes with a general clause of warranty.
    The counsel for the plaintiffs contended that the qualifying words ‘ at my death’ were misplaced, and that they should have been put after the habendum. Such a rule of construction would be entirely too technical and narrow. In my opinion it is not material in what part of the instrument the qualifying words are placed, provided the intent in some part of the deed,*or the whole taken together be clearly\expressed. I am utterly unable to distinguish this case from that of Jaggers vs. Estis. In the latter case the instrument is in the form of an absolute deed, except as to the qualifying words. He grants “ to the said Elizabeth Jaggers and her heirs, &c., in as full and ample a mda,sure as I am capable of bestowing, to have and to hold the said negroes Polly and Joe, unto the said Elizabeth, her heirs and assigns from henceforth and forever, as her lawful property at my death,” without a clause of warranty as in the case.
    Now what is the difference ? In the case last mentioned, the words, at my death, which qualify what would otherwise be an absolute deed, to take effect instanter, both as to the right and the present enjoyment of the property, occur at the conclusion of the deed, after the description and the habendum, and in this case these same words precede the description of the property and the habendum. Can that make any possible difference? If I understand Jaggers vs. Estis, it amounts to this: A future estate in a chattel to take effect at the death of the grantor may be created by a deed ; provided that upon a proper construction of the whole instrument taken together, it clearly^appears that it was the intention of the grantor to do an irrevocable act, and to create a present right to the future enjoyment of the chattel conveyed. Under this rule it is immaterial in what part of the deed the intent appears. The principle settled in this case, is sufficiently plain to govern every case, except as to the question whether the intent required does sufficiently appear. In Burnett vs. Alexander, 5 Rich. 189, the instrument was in the form of a deed, and absolute throughout till the conclusion, where there was appended a proviso as follows: “It is clearly and unequivocally understood that the aforesaid deed of gift is to be of no effect whatsoever, until I, the aforesaid Benjamin Johnson, depart this life.” It is impossible to define a rule which Avould remove all doubts of this character. For there are some instruments of so mongrel a character, that it is impossible, with any thing like a satisfactory conviction, to assign them a place among wills or among deeds; as, for example, the instrument that was the subject of controversy in Conner vs. Liv'ingston. In determining whether an instrument be a will, or a deed, I apprehend that each case must be judged by its' own circumstances. In this investigation there are always some indicia to which the Court may look in determining the character of the instrument — the form may be appealed to for this purpose, though, as we have seen, that is not conclusiva The nature of the dispositions, and whether they appear to have been intended as testamentary and revocable, is a pregnant enquiry. If it is declared on its face to be a will that is conclusive whatever may*be the dispositions of property which it makes; and so I apprehend, if in terms, it is declared to be a deed, that is' equally conclusive. The employment of terms appropriate to a deed or will, often leaves the matter in doubt, for sometimes both forms of expression are used in the same instrument; still these forms of expression throw some light upon the construction.
    The case of Bookter vs. Raglan, cited in the argument, is not in point. There was no delivery in that case, and the instrument for this reason could not have been set sup as a deed. Though in the form of a deed for the most part, nevertheless there were expressions and dispositions in it which gave it the appearance of a will. There was in it a clause which revoked all former testaments. In Burnett vs. Alexander, already cited, the Court in deciding the instrument to be a deed, laid much stress on its containing a clause of warranty of title.' And this is a feature in the deed in this instance. When did a testator ever think of warranting the title ■ of property which he devises or bequeaths ? In the disposing clause of this deed, the words are “ give and grant.” The word give is proper and common to both forms of conveyance. The word grant is peculiar to deeds, and in this instrument there is no word peculiarly appropriate to a will. These circumstances, would not, taken singly, be conclusive, but taken in connection with others of a like nature, are entitled to some weight.
    I am’ unhesitatingly of the opinion that the instrument is a deed, and that it is valid to vest in John Sullivan at the death of his mother, the negroes and their increase therein conveyed. It is so ordered and decreed, 
    
    
      It is further ordered and decreed, that a writ of partition do issue to divide the other personal estate of Elizabeth Sullivan among her distributees according to their respective rights; in which partition it is ordered and decreed that the said John Sullivan do account for the negroes given to him by the said deed as an advancement. And that it be referred to the Commissioner of the Court to enquire the value of such advancement. It is further ordered and decreed that the accounts of the administrator be referred to the Commissioner.
    The tract of land on which Mrs. Sullivan lived and died, was a part of the real estate of her deceased husband, Pressly Sullivan. By an arrangement and agreement with her children, who were the heirs of the said Pressly Sullivan, she was entitled to occupy this land during her life. At her death it was to revert to them and be divided among them, as the property of the said Pressly Sullivan.
    It is ordered and decreed that a writ of partition do issue to divide the said tract of land as the property of the said Pressly Sullivan among his heirs at law according to their respective rights.
    It is further ordered and decreed that the costs of this suit be paid out of the funds of the estate of the said Elizabeth Sullivan.
    The plaintiffs appealed upon the grounds:
    1. The instrument of writing which is upheld by the circuit decree as an effectual disposition of the slaves therein mentioned, it is respectfully submitted, is in legal contemplation invalid as a deed, is in its nature-essentially testamentary, and is inoperative and void for want of due attestation. ’
    
      2. If the instrument referred to were capable of taking effect as a deed, yet it is utterly ineffectual for lack of sufficient delivery.
    
      Carroll, for appellant,
    cited Broom Leg. Max. 77; Rabb vs. Harrison, 9 Rich. Eg, 111; Folk vs. Cam, 9 Rich. Eg. 303
    
      Moragne, contra.
    
      
      
         Copy of the deed from Elizabeth Sullivan to John Sullivan:
      STATE OF SOUTH CAROLINA,
      Edgefield District.
      Enow all men by these presents, that I, Elizabeth Sullivan, of the District of Edgefield, and State of South Carolina, for and in consideration of the natural love and afiection which I bear to my son, John Sullivan, of the District and State aforesaid, have given and granted, and by these presents do give and grant unto the said John Sullivan, his executors, administrators and assigns, the following negro property at my death, to wit: Lucy andhersix children, together with their increase, should there be any, Caroline, Matt, Chandler, Allen, Wiatt, and Zack, to have-and to hold, the said negroes unto him the said John Sullivan, his executors, administrators and assigns forever, under the following proviso, namely: that if the said John Sullivan should die without lawful issue, then the above named negroes to go to my son Sampson Sullivan and his heirs, and I, the said Elizabeth Sullivan, for myself, my heirs, executors and administrators, the said negroes to the said John Sullivan his executors, administrators and assigns, against the claim of me, the said Elizabeth Sullivan, my executors, administrators and of every other person whomsoever shall and will warrant and forever defend.
      
        In testimony whereof, I have hereunto set my hand and seal, this the 5th of June, 1841.
      her
      ELIZABETH X SULLIVAN, [l. s.]
      mark.
      "Witness, D. M. Glover,
      S. P. Getzen.
    
   Per Curiam.

This Court concur in the circuit decree, which is hereby affirmed and the appeal dismissed.

Dunkin, Dar&an and Wardlaw, CC., concurring.

Appeal dismissed.  