Brown, J.
Parol evidence was received and excepted to for the purr pose of proving that the paper offered was intended by W. L. Griffin as a will.-
Where the instrument itself suggests uncertainty as to its character, parol evidence of facts and circumstances, as well as instructions given the draftsman, is competent to shed light upon the purpose of the maker. But such evidence is incompetent where the instrument upon its face gives unmistakable evidence as to its legal character, as we think the instrument before us does.
The line of separation between what constitutes a deed and a will is sometimes so shadowy as to make it extremely doubtful whether the instrument is the one or the other. There are certain tests which the text-writers and courts have laid down to determine the character of the instrument, the intention of the maker, to be gathered from the whole instrument, being the controlling rule in determining the question. The
'courts do not regard the form of the instrument, except so far as its formal words and declarations may throw light upon the intention of the maker of it.
In order to constitute a will, there must be apparent in the instrument an
animus testandi,
and to determine this, two tests are resorted tto;
(a)
whether it operates to create any interest in the grantee prior to the death of the maker, (b) whether it is revocable by the maker.
If the grantor intended that the title to the property described in it should pass eo
insianti
upon execution to the grantee, it is a deed, although the interest conveyed or the enjoyment of it is .postponed until after the death of the grantor. If the grantor intended that no interests whatever should vest until after his death, it is a will, for a deed cannot be ambulatory in character. Gardner on "Wills, p. IS, 9 A. and E. Ene., 91.
An instrument in the form of a deed is declared to be testamentary if it conveys no interest
in prcesenti,
is revocable at pleasure, and is not to take effect until the death of the maker.
Peacock v. Monk,
1 Ves., 127; 30 A. and E. Enc., 576.
In
Allison v. Allison,
11 N. C., 171,
Chief Justice Taylor
states the distinction as follows: “The difference between ‘a deed and a will is this: the former must take place upon its execution, or never; not by passing an immediate interest in possession, for that is not essential; but it must operate as passing that interest when the deed is executed. Thus, where a father covenants to stand seized to the use of his son, reserving a life estate to himself, the deed takes effect at once, by passing .'an interest to the son.”
The instrument under consideration has all the characteristics of a deed and but few, if any, of a will. It is in form a deed. It does not purport to be the individual will of either one of the signers; there are no testamentary words in the paper, nor is any executor appointed, ¡although this is not essential. As we construe it, it conveys to the grantee ■a present interest in the property described, although the enjoyment of it is postponed until after the death of the grantors.
An instrument, in form a deed, is declared to be such although it contains these words: “It is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after 'the grantor shall depart this life, and not sooner.”
Launch v. Logan,
45 W. Va., 251.
An instrument, in form a deed, executed by a husband and wife, purporting to convey an interest in their property to their son, was adjudged to be a deed, although it was expressly provided therein that it should not take effect until the death of the grantors.
Martin v. Faries,
22 Texas Civ. App., 539.
In Gardner on Wills, p. 22, a number of eases are cited where instruments have been declared to be deeds, although the enjoyment of the property described therein was postponed until after the death of the grantors.
The consideration upon which this agreement was entered into is stated to be the personal services and the support.and care which the grantee was to give to the grantors during their- lifetime. They evidently intended it to be a definite contract and agreement, and when the grantee accepted it, she became personally bound, both morally and legally, to render those services.
Again, there is evidence that the grantors parted with the possession of this deed, for it was found in the possession of the grantee before the death of Mary S. Griffin, one of the grantors. It was taken to the clerk of the Superior Court, probated and registered during her life by the grantee, Julia Hill, from which registration the presumption of delivery arises.
Again, the grantors did not undertake to revoke it, and upon its face it is irrevocable, as it is founded upon a valuable consideration, and passes to the grantee an equitable interest in the property, which may vest absolutely
in futuro
upon the performance of the conditions expressed in the instrument.
It is contended that the paper-writing cannot operate as a deed in fee because a fee simple cannot be made to take effect
in futuro,
and that, therefore, it must operate as a will or not at all. It is true that at common law an estate in fee cannot be made to cease as to one and to take effect as to another by way of limitation, dependent upon a contingent event. But it is settled that limitations of that kind may take effect by way of use. Out of this arose the doctrine of springing and shifting uses, or conditional limitations. An illuminating opinion on this subject is that of
Mr. Justice Ashe
in
Smith v. Brisson,
90 N. C., 285.
In construing this paper-writing as a deed, we must take it as a whole and endeavor to deduce the clear intention of the grantors without regard to the severely technical rules of the common law.
Triplett v. Williams,
149 N. C., 394;
Beacon v. Amos,
161 N. C., 365.
So construing this deed, it is manifest that the grantors intended to preserve in themselves the legal title to said property during their lives; that they then intended to convey the fee to Julia Hill upon condition, first, that she survived the grantors, and, second, that she fulfilled the other condition, as to the support and care of the grantors.
The operative clauses of the deed are that “the said parties of the first part covenant and agree with said Julia E. Hill to convey to her and that she shall have a certain tract of land (describing it), with the appurtenances thereto belonging, to the said Julia Ellen Hill, her bodily heirs and assigns forever.”
We are of opinión that the' effect of this instrument is to convey to Julia Hill an equitable fee in the property therein described, subject to the life estate of the grantors, to be divested in case she does not survive the grantors or fails to perform during their lives the other condition set out therein.
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Brown, J.
Parol evidence was received and excepted to for the purr pose of proving that the paper offered was intended by W. L. Griffin as a will.-
Where the instrument itself suggests uncertainty as to its character, parol evidence of facts and circumstances, as well as instructions given the draftsman, is competent to shed light upon the purpose of the maker. But such evidence is incompetent where the instrument upon its face gives unmistakable evidence as to its legal character, as we think the instrument before us does.
The line of separation between what constitutes a deed and a will is sometimes so shadowy as to make it extremely doubtful whether the instrument is the one or the other. There are certain tests which the text-writers and courts have laid down to determine the character of the instrument, the intention of the maker, to be gathered from the whole instrument, being the controlling rule in determining the question. The
'courts do not regard the form of the instrument, except so far as its formal words and declarations may throw light upon the intention of the maker of it.
In order to constitute a will, there must be apparent in the instrument an
animus testandi,
and to determine this, two tests are resorted tto;
(a)
whether it operates to create any interest in the grantee prior to the death of the maker, (b) whether it is revocable by the maker.
If the grantor intended that the title to the property described in it should pass eo
insianti
upon execution to the grantee, it is a deed, although the interest conveyed or the enjoyment of it is .postponed until after the death of the grantor. If the grantor intended that no interests whatever should vest until after his death, it is a will, for a deed cannot be ambulatory in character. Gardner on "Wills, p. IS, 9 A. and E. Ene., 91.
An instrument in the form of a deed is declared to be testamentary if it conveys no interest
in prcesenti,
is revocable at pleasure, and is not to take effect until the death of the maker.
Peacock v. Monk,
1 Ves., 127; 30 A. and E. Enc., 576.
In
Allison v. Allison,
11 N. C., 171,
Chief Justice Taylor
states the distinction as follows: “The difference between ‘a deed and a will is this: the former must take place upon its execution, or never; not by passing an immediate interest in possession, for that is not essential; but it must operate as passing that interest when the deed is executed. Thus, where a father covenants to stand seized to the use of his son, reserving a life estate to himself, the deed takes effect at once, by passing .'an interest to the son.”
The instrument under consideration has all the characteristics of a deed and but few, if any, of a will. It is in form a deed. It does not purport to be the individual will of either one of the signers; there are no testamentary words in the paper, nor is any executor appointed, ¡although this is not essential. As we construe it, it conveys to the grantee ■a present interest in the property described, although the enjoyment of it is postponed until after the death of the grantors.
An instrument, in form a deed, is declared to be such although it contains these words: “It is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after 'the grantor shall depart this life, and not sooner.”
Launch v. Logan,
45 W. Va., 251.
An instrument, in form a deed, executed by a husband and wife, purporting to convey an interest in their property to their son, was adjudged to be a deed, although it was expressly provided therein that it should not take effect until the death of the grantors.
Martin v. Faries,
22 Texas Civ. App., 539.
In Gardner on Wills, p. 22, a number of eases are cited where instruments have been declared to be deeds, although the enjoyment of the property described therein was postponed until after the death of the grantors.
The consideration upon which this agreement was entered into is stated to be the personal services and the support.and care which the grantee was to give to the grantors during their- lifetime. They evidently intended it to be a definite contract and agreement, and when the grantee accepted it, she became personally bound, both morally and legally, to render those services.
Again, there is evidence that the grantors parted with the possession of this deed, for it was found in the possession of the grantee before the death of Mary S. Griffin, one of the grantors. It was taken to the clerk of the Superior Court, probated and registered during her life by the grantee, Julia Hill, from which registration the presumption of delivery arises.
Again, the grantors did not undertake to revoke it, and upon its face it is irrevocable, as it is founded upon a valuable consideration, and passes to the grantee an equitable interest in the property, which may vest absolutely
in futuro
upon the performance of the conditions expressed in the instrument.
It is contended that the paper-writing cannot operate as a deed in fee because a fee simple cannot be made to take effect
in futuro,
and that, therefore, it must operate as a will or not at all. It is true that at common law an estate in fee cannot be made to cease as to one and to take effect as to another by way of limitation, dependent upon a contingent event. But it is settled that limitations of that kind may take effect by way of use. Out of this arose the doctrine of springing and shifting uses, or conditional limitations. An illuminating opinion on this subject is that of
Mr. Justice Ashe
in
Smith v. Brisson,
90 N. C., 285.
In construing this paper-writing as a deed, we must take it as a whole and endeavor to deduce the clear intention of the grantors without regard to the severely technical rules of the common law.
Triplett v. Williams,
149 N. C., 394;
Beacon v. Amos,
161 N. C., 365.
So construing this deed, it is manifest that the grantors intended to preserve in themselves the legal title to said property during their lives; that they then intended to convey the fee to Julia Hill upon condition, first, that she survived the grantors, and, second, that she fulfilled the other condition, as to the support and care of the grantors.
The operative clauses of the deed are that “the said parties of the first part covenant and agree with said Julia E. Hill to convey to her and that she shall have a certain tract of land (describing it), with the appurtenances thereto belonging, to the said Julia Ellen Hill, her bodily heirs and assigns forever.”
We are of opinión that the' effect of this instrument is to convey to Julia Hill an equitable fee in the property therein described, subject to the life estate of the grantors, to be divested in case she does not survive the grantors or fails to perform during their lives the other condition set out therein.
In case these conditions are not fulfilled, then the limitations over to the heirs at law take-.effect. That a conveyance of this character may be made, we think finds support in the reasoning and principles laid down in
Smith v. Brisson, supra.
.It is alleged in the caveat that the property described in the deed is the property .of the wife, Mary S. Griffin, and that the deed has not been executed according to law, there being no privy examination. We will not in this proceeding pass upon the validity of the execution of the deed, or as to which one of the grantors owned the property described in it. The execution of the deed and the rights of parties claiming under it will be more properly adjudicated when the grantee asserts her rights under it. In this proceeding we have commented upon and examined the context of and construed the instrument to demonstrate that it is a deed and not a will.
The paper was proved in common form before the clerk as a will. The effect of the caveat 'is to require the paper-writing to be proved again in solemn form in term-time and before a jury of the Superior Court, and no other issue, is raised or is appropriate in such proceeding except that of
devisavit vel non,
which is the first issue,
supra.
In
Wood v. Sawyer,
61 N. C., 268, it is stated: “The uniform practice, when a paper-writing is offered for probate as a will, has been to prove the exéeution of the paper and obtain an order that it be recorded without consideration of its contents, except so far as to see that it purports to be a will. And where the validity of the will is questioned, and it is submitted to a jury, the jury is restricted to the same inquiries.
“Where there is no objection, the court passes upon the validity of the paper, and where there is objection, the jury passes upon it; and in either case the proceeding is
in rem.
The probate passes upon the rights of no one under tlie will, but only establishes it as a will, leaving the rights of the parties to be ascertained thereafter.”
To the same effect is
Murray’s will,
141 N. C., 591. When it is determined that the paper-writing offered is not a will, probate is refused, and that ends the proceeding.
We have considered the cases cited by the propounders, and do not think that they are authoritative here.
In re Will of Belcher,
66 N. C., 51, is a case where a paper-writing, in form a deed, was probated as a will. It was the individual instrument of Belcher and not joined in by his wife. It was not based upon a valuable consideration, but upon nat
ural love and affection, and passed no interest- whatever in tbe property-described to the grantee until after Belcher’s death. There is a radical difference between the two cases.
Tilley v. King,
109 N. C., 461, is equally valueless as a precedent. That was not an issue of
devismit vel non,
but involved only the construction of a will which had already been admitted to probate as such. There was no controversy that it was not a will, and that point was not considered.
Upon a review of the whole case, we are of opinion that his Honor erred in holding that the paper-writing was a will. The judgment of the Superior Court is
Eeversed. •