
    Johnson v. Johnson.
    (Jackson.
    June 10, 1899.)
    DEVISAVIT VEL Nou. Exc1~ustom of fnst?rwment propounded not error, when. -
    • it is not error, on the trial of an issue of devisavit ~ieI non, foi~ the Court to exclude from the jury ~he instrument propounded for probate, where it has the form of a deed, but is unexe- • outed, and there is no internal or collateral evidehce t~nding to show that it was intendedas a will. •
    Cases cited: McLean v. McLean, 6 Hum., 452; Watkins v. Dean, 10 Yer., 321; Taylor v. Taylor, 2 Hum., 597; Armstrong v. Armstrong, 4 Ban., 357; Swails v.Bushart, 2 Head, 562.
    FROM ShELBY.
    Appeal in error from Circuit Court of Shelby Oouiity. L. H. E~TES, ~F.
    H. C. WAnnINEI~, T. H. ~TAoKsoN, and YOUNG & YouNc4, for plaintiffs in error.
    WM. H. RANDOLPn. & . Soi~, 3os. H. GnEE1~, and D. H. SCALES) for defendants in error.
   MoAI.IsTEn~ T.

This record presents an issue of devisavit vel non. The verdict and ~udg'inent were against tbe alleged will. Proponents appealed and bave assigned errors.

Tbe paper writing in controversy purported on its face to be a deed, but was unsigned and unexecuted. Tbe contention of tbe proponents was that it might nevertheless take effect as a testamentary disposition of personalty.

Tbe instrument in question was written under tbe following circumstances: Tbe testatrix, Mrs. Louisa J. Hardwicke, of Shelby County, in her last illness, caused tbe paper in question to be prepared by Maj. Warriner. Mr. Warriner, on tbe niglit preceding her death, was sent for between 31 and 12 o’clock.

On his arrival Mrs. Hardwicke said to him that she desired to make a deed of gift. Mr. Warriner explained to her tlie difference between a deed and a will, stating that a deed, if properly executed, would convey tbe property absolutely even if she recovered, but that a will would only take effect after her death.

Mr. Warriner asked her if she did not wish ■to make a will. She replied she wanted a deed and not a will. Thereupon she directed him to write a deed of gift, conveying her property to Loula Hardwicke, Ross Woods, and Isadore Johnson.

After writing the paper Mr. Warriner read it over to Mrs. Hardwicke, and she expressed her satisfaction with it. He then presented it to her to sign, but she declined to do so, stating she would sign it to-morrow. Mrs. Hardwicke became unconscious several hours after Mr. Warriner wrote the deed, and died the following day without having executed it.

This paper writing wras offered for probate as a will of personalty in. the Probate Court of Shelby County, and was proved by two witnesses. Notice of contest having been given, the writing was certified to the Circuit Court for- an issue of devisavit vel- non. The only testimony introduced on the trial below was by the proponents, all of which tended to show that Mrs. ITardwicke refused to make a will but had undertaken to make a deed of gift, which was left unexecuted.

When the paper writing itself was offered in evidence, upon objection the Court excluded it, stating his reasons 'as, viz.:

“The .Court holds that the paper offered in evidence, being unsigned by the deceased, and not formally executed, and being in form a deed of gift, and the other evidence showing that she declared at the time of its preparation that she did not want a will but a deed of gift prepared, for the reason that wills could be broken and deeds could not, that this paper could, under no aspect of the testimony, bé held to be the last will and testament of the deceased, and that if, on the testimony introduced, the jury should find, it her last will and .testament, the Court would be botín d, under its conception of tbe case, to grant a new bearing.”

Counsel for proponents excepted to tbe' ruling of tbe Court excluding tbe paper • writing from tbe jury, remarking, viz.:

“If that is the conclusion of tbe Court in tbe case, there is no use for tbe same to proceed any further, and that a verdict of tbe jury might be entered with tbe judgment of tbe Court thereon in favor of tbe defendants, and proponents would enter a motion for a new trial, and on that being overruled, would appeal tbe case to tbe Supreme Court.” 1

Tbe principal assignment of error in this Court is that tbe Court below erred in not allowing the paper writing in question to be read as evidence to tbe jury.

Tbe position of counsel for proponents is that Mrs. Hardwicke intended by said instrument to make a final disposition of her property, to take effect after her death, and, that being true, the instrument is testamentary in legal effect, although she may have declared she did not wish a will but a deed of gift prepared.

Counsel cite in support of bis proposition Williams on Executors, Yol. 1, p. 54, viz.: cited in McLean v. McLean, 6 Hum., 452, viz.: “Although much greater strictness seemed to have prevailed in earlier times, it has been decided in a great variety of modern instances that it is not necessary that an instrument should be in a testamentary form in order to operate as a will. Indeed, it may be considered as a settled point that the form of a paper does not affect its title to probate, provided it is the intention of the deceased that it should operate after her death. Tims a deed poll, or an indenture, a deed of gift, a bond, a marriage settlement, letters, drafts on bankers, stock and bills indorsed for A B, an indorsement on a note, ‘I give this note to C D,’ promissory notes, and notes payable by executors to evade legacy duties, have been held to be testamentary.” And, again, at page 55, the same author says: “And it must be further observed that it is not necessary. for the validity of a testamentary instrument that the testator should intend to perform, or be aware 'that he had performed, a testamentary act, for it is settled law that if the paper contains a disposition -of the property to be made 'after death,, though such paper were not intended to be a will or other testamentary instrument, but an instrument of a different shape, yet, if it cannot operate in the latter it may nevertheless operate in the former character.”

Mr. Williams, however, at page - 88, Vol. 1, explains the language already quoted by saying: “But it is essentially requisite that the instrument should be made to depend upon the event of death as necessary to consummate it. Eor when a paper directs a benefit to be conferred inter vivos, without reference, expressly or impliedly, to the death of the party conferring it, it cannot be established as testamentary.”

So Mr. Jarman, in his work on Wills, Vol. 1, star page 21, says: “That the cases had established that an instrument in any form, 'whether a deed poll or' indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will.” Again, Mr. Jarman, on star page 24, in speaking of instruments not testamentary, says, viz.: “But if the instrument is not testamentary either in form or substance (none of the gifts in it being ex- » pressed in testamentary language, or being in terms postponed to the death of the maker), and if no collateral evidence is adduced to show that it was intended as a will, probate will not ’ be granted of it as a testamentary document.”

Pritchard on Wills states the rule, viz. (Sec. 17): “If an instrument is to take effect after the death of the maker, it is a will; if it is to take effect immediately, or if it conveys a present estate, it is a deed, notwithstanding the enjoyment of the estate may be postponed until after the death of the maker. It is the ambulatory quality of a will which makes the difference, for, though a deed may postpone the pos■session or enjoyment until the death of the donor, the postponement does not result, as in the case of a will, from the nature of the instrument, but is produced by its express terms. If, therefore, the instrument has the present effect of vesting the right to and fixing the terms of the future enjoyment of property, and does not require the death of the testator for its consummation, it is not a will.” Watkins v. Dean, 10 Yer., 321; Taylor v. Taylor, 2 Hum., 597; Armstrong v. Armstrong, 4 Bax., 357; Swails v. Bushart, 2 Head, 562.

“Where it appears there was an intent that the instrument should become operative at once, conveying a present interest, or even a present interest. to be enjoyed in the- future, the Court will construe the instrument t-o be a deed and ’ not a will.”

In the present case the instrument was drawn to take effect as a deed in presentí, but after-wards the decedent failed or refused to execute and deliver it. The form of the instrument wholly precludes the idea of a will, for it is a deed absolute upon its face. The evidence overwhelmingly shows that it was not designed as a paper to take effect after the death of the maker, but was written to take effect at once, provided she saw proper to execute and deliver it.

There is not a line of the deed or a syllable of the collateral evidence to show that it was to take effect after the death of Mrs. ITardwicke. There was no evidence on which the paper offered conld he sustained as a last will and testament. The Court was therefore correct in excluding the paper writing from the jury. We find no error in the record, and the judgment is affirmed.  