The opinion of the court was delivered, by
Woodavard, C. J.
The great question in the case, and the only one we shall discuss, is, whether the indenture of 22d November 1849, by John Scott to his son John W. Scott, conveying the farm in dispute, was a deed or a will. Not Avhether the parties called it a deed, nor Avhether it contained the customary words of a deed ; but Avhether, according to the intentions expressed upon the face of the instrument, it can in law have the effect and operation of a deed. This is our question, and it is important to place before our minds, in a very distinct light, the instrument to he interpreted.
John Scott, an old man living on his farm, made, what is called, [131]*131i{ This Indenture” to his son John W. Scott, at the above-mentioned date, upon a consideration of natural love and affection, and “ also that the said John W. Scott hath this day agreed to live with the said John Scott, and labour for and assist him in working the land hereinafter described, and maintain Patience Scott the wife of the said John Scott, if she survives him, during her natural life,” conveying the said farm by metes and bounds to him in fee simple “ excepting and reserving nevertheless, the entire use and possession of said premises unto the said John Scott and his assigns for and during the term of his natural life ; and this conveyance in no way to take effect until after the decease of the said John Scott the grantor.” The habendum was to have and to hold the premises “ after the decease of said John Scott,” to him the said John W. Scott, his heirs and assigns, &.c.
After the father and son commenced their joint possession under this deed they quarrelled, and the father turned the son out by an action of ejectment, and kept the sole possession in himself till he died, his wife Patience having died before him.
Before his death, to wit, on the 26th February 1861, he made a formal will in which'he revoked all former wills, “ and particularly a certain will and testament (in form as a deed) recorded in the recorder’s office of said county of Erie, in deed-book U., p. 716, witnessed by Miron Hutchinson and George H. Cutler, and I hereby give and assign as the reason 'of revoking and making void said will, that my son John W. Scott and his wife have failed to treat me with filial affection, and to comply with the conditions upon which I made said will.” He then goes on to devise the land in question to his daughters, Nancy Holliday, Anna Sanford, Parney P. Turner and his son Abner Scott, the plaintiffs in this action.
These devisees succeeded to the possession, but lost it by .an action of ejectment brought against them by John W. Scott, and this is a second ejectment brought by them to regain the possession. If the deed of 22d November 1849 vested the title in John W-. Scott, the subsequent will was inoperative of course, so far as concerned this land; but if the deed vested no present interest, and was intended to operate as a testament, it was very expressly revoked and repealed by the subsequent will, and plaintiff's as devisees under this will have the title.
The testator called and treated the deed as a will, but not until after he had quarrelled with his son and turned him out of possession. When he made the instrument he called it an indenture, and permitted his son to record it as a deed. His treatment of it as a will therefore proves nothing. But what is the effect of the reservation clause above quoted ? Undoubtedly, a life estate was reserved to the grantor with the entire use and possession of the premises, and of course the instrument could not take effect as a [132]*132“ conveyance” until after his death, and such was the declared intention. The learned judge construed the latter clause of the reservation as a protection of the life estate, but it needed no protection for it remained in the grantor, being excepted out of the grant as fully as it was capable of existing. Rut if these pregnant words were added with some such mistaken -notion of the parties, and it is quite possible they were, they are an emphatic declaration that no interest should be considered as presently conveyed to interfere with the life estate, whilst the habendum is equally express that the estate intended to be conveyed to John W. Scott should commence at the death of the grantor. Without straining or unduly emphasizing any of these words, it is impossible to doubt, that if any effect whatever is to be given to them, they limited the fee to take effect in futuro. At common law this can only be done when a particular estate, to take effect presently, is granted, not reserved, to support the fee. If the question was upon John W. Scott’s title under the deed, without any subsequent will in the case, and we should be obliged to say that as an attempt to create a freehold in futuro without the grant of a particular estate to support it, the deed was-void, we might, perhaps, support it as a covenant to stand seised to his use. I say perhaps, because the case has not been fully considered in that aspect, and the reason why we do not so contemplate it is, that there being a subsequent will it becomes a mere question of interpretation, whether the former instrument was testamentary in its character or not. If it was testamentary, then it ought not to be construed as a covenant to stand seised, there being a later will. Had there been no later will, the deed though testamentary might perhaps have been supported as such a covenant. We come then to the real question, was the deed essentially a testamentary instrument.
Swinburne defines a testament to be a “just sentence of our will touching that we would have done after our death. And because some there be who do censure this excellent definition to he defective, though unworthily,” he makes a full exposition of the meaning of every word in the definition. The only distinction he makes between a testament and a will is the distinction between justa sententia, and legitima dispositio. But the essence of both is that it is a disposition to take effect after death, and this is adopted by Judge Redfield, the latest commentator, in his work on the Law of Wills, p. 5.
In the case of Habergham v. Vincent, 2 Ves. Jr. 204, the question was, whether two instruments, one in form a will and the other in form a deed, did not together constitute a will, and the case was greatly considered. It was first argued before Lord Thurlow, who took a long time to consider of it and then directed a case to he stated for the opinion of the Court of King’s Bench. [133]*133In consequence of too short a statement in sending this ease to law, the second instrument was there considered a deed, and the other questions were ruled accordingly. Afterwards when the case came before Lord Chancellor Loughborough, he said he felt so strongly that this instrument (the deed) was to be construed as testamentary, that he must have the assistance of two of the judges to sit with him at the argument; and accordingly Mr. Justice Buller and Mr. Justice Wilson, in accordance with a custom which sometimes is practised in the Pligh Court of Chancery, sat with the Chancellor and delivered separate, though concurring opinions. Mr. Justice Buller, in his opinion, said: “ When this case was argued in the King’s Bench, no one of the cases quoted here by the attorney-general was mentioned or alluded to. I freely confess,” he added, “they did not occur to me.
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The opinion of the court was delivered, by
Woodavard, C. J.
The great question in the case, and the only one we shall discuss, is, whether the indenture of 22d November 1849, by John Scott to his son John W. Scott, conveying the farm in dispute, was a deed or a will. Not Avhether the parties called it a deed, nor Avhether it contained the customary words of a deed ; but Avhether, according to the intentions expressed upon the face of the instrument, it can in law have the effect and operation of a deed. This is our question, and it is important to place before our minds, in a very distinct light, the instrument to he interpreted.
John Scott, an old man living on his farm, made, what is called, [131]*131i{ This Indenture” to his son John W. Scott, at the above-mentioned date, upon a consideration of natural love and affection, and “ also that the said John W. Scott hath this day agreed to live with the said John Scott, and labour for and assist him in working the land hereinafter described, and maintain Patience Scott the wife of the said John Scott, if she survives him, during her natural life,” conveying the said farm by metes and bounds to him in fee simple “ excepting and reserving nevertheless, the entire use and possession of said premises unto the said John Scott and his assigns for and during the term of his natural life ; and this conveyance in no way to take effect until after the decease of the said John Scott the grantor.” The habendum was to have and to hold the premises “ after the decease of said John Scott,” to him the said John W. Scott, his heirs and assigns, &.c.
After the father and son commenced their joint possession under this deed they quarrelled, and the father turned the son out by an action of ejectment, and kept the sole possession in himself till he died, his wife Patience having died before him.
Before his death, to wit, on the 26th February 1861, he made a formal will in which'he revoked all former wills, “ and particularly a certain will and testament (in form as a deed) recorded in the recorder’s office of said county of Erie, in deed-book U., p. 716, witnessed by Miron Hutchinson and George H. Cutler, and I hereby give and assign as the reason 'of revoking and making void said will, that my son John W. Scott and his wife have failed to treat me with filial affection, and to comply with the conditions upon which I made said will.” He then goes on to devise the land in question to his daughters, Nancy Holliday, Anna Sanford, Parney P. Turner and his son Abner Scott, the plaintiffs in this action.
These devisees succeeded to the possession, but lost it by .an action of ejectment brought against them by John W. Scott, and this is a second ejectment brought by them to regain the possession. If the deed of 22d November 1849 vested the title in John W-. Scott, the subsequent will was inoperative of course, so far as concerned this land; but if the deed vested no present interest, and was intended to operate as a testament, it was very expressly revoked and repealed by the subsequent will, and plaintiff's as devisees under this will have the title.
The testator called and treated the deed as a will, but not until after he had quarrelled with his son and turned him out of possession. When he made the instrument he called it an indenture, and permitted his son to record it as a deed. His treatment of it as a will therefore proves nothing. But what is the effect of the reservation clause above quoted ? Undoubtedly, a life estate was reserved to the grantor with the entire use and possession of the premises, and of course the instrument could not take effect as a [132]*132“ conveyance” until after his death, and such was the declared intention. The learned judge construed the latter clause of the reservation as a protection of the life estate, but it needed no protection for it remained in the grantor, being excepted out of the grant as fully as it was capable of existing. Rut if these pregnant words were added with some such mistaken -notion of the parties, and it is quite possible they were, they are an emphatic declaration that no interest should be considered as presently conveyed to interfere with the life estate, whilst the habendum is equally express that the estate intended to be conveyed to John W. Scott should commence at the death of the grantor. Without straining or unduly emphasizing any of these words, it is impossible to doubt, that if any effect whatever is to be given to them, they limited the fee to take effect in futuro. At common law this can only be done when a particular estate, to take effect presently, is granted, not reserved, to support the fee. If the question was upon John W. Scott’s title under the deed, without any subsequent will in the case, and we should be obliged to say that as an attempt to create a freehold in futuro without the grant of a particular estate to support it, the deed was-void, we might, perhaps, support it as a covenant to stand seised to his use. I say perhaps, because the case has not been fully considered in that aspect, and the reason why we do not so contemplate it is, that there being a subsequent will it becomes a mere question of interpretation, whether the former instrument was testamentary in its character or not. If it was testamentary, then it ought not to be construed as a covenant to stand seised, there being a later will. Had there been no later will, the deed though testamentary might perhaps have been supported as such a covenant. We come then to the real question, was the deed essentially a testamentary instrument.
Swinburne defines a testament to be a “just sentence of our will touching that we would have done after our death. And because some there be who do censure this excellent definition to he defective, though unworthily,” he makes a full exposition of the meaning of every word in the definition. The only distinction he makes between a testament and a will is the distinction between justa sententia, and legitima dispositio. But the essence of both is that it is a disposition to take effect after death, and this is adopted by Judge Redfield, the latest commentator, in his work on the Law of Wills, p. 5.
In the case of Habergham v. Vincent, 2 Ves. Jr. 204, the question was, whether two instruments, one in form a will and the other in form a deed, did not together constitute a will, and the case was greatly considered. It was first argued before Lord Thurlow, who took a long time to consider of it and then directed a case to he stated for the opinion of the Court of King’s Bench. [133]*133In consequence of too short a statement in sending this ease to law, the second instrument was there considered a deed, and the other questions were ruled accordingly. Afterwards when the case came before Lord Chancellor Loughborough, he said he felt so strongly that this instrument (the deed) was to be construed as testamentary, that he must have the assistance of two of the judges to sit with him at the argument; and accordingly Mr. Justice Buller and Mr. Justice Wilson, in accordance with a custom which sometimes is practised in the Pligh Court of Chancery, sat with the Chancellor and delivered separate, though concurring opinions. Mr. Justice Buller, in his opinion, said: “ When this case was argued in the King’s Bench, no one of the cases quoted here by the attorney-general was mentioned or alluded to. I freely confess,” he added, “they did not occur to me. But those cases have 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. The cases for that are both at law and in equity, and in one of them there were express words of immediate grant and a consideration to support it as a grant, but as upon the whole the intention was that it should have a future operation after death, it was considered as a will.” To the same effect were the other opinions in this case. The cases to which Justice Buller alluded as cited by the attorney-general (Sir John Scott) were West’s Case, Moore 177, where it is laid down that if there is a letter expressing the disposition as to land, it is sufficient; Greene v. Proude, 1 Mod. 117, where, though the instrument was sealed and delivered as a deed, it was held to be a will; Metham v. The Duke of Devonshire, 1 P. Wms. 629, where a will directed the executors to pay 3000Z. as the testator should afterwards appoint. He afterwards made a deed of appointment, which was taken as part of the will.
I refer also to cases cited in note 9 of 1 Williams on Executors, p. 61; and Rowan’s Appeal, 1 Casey 293. But it is supposed the covenant of general warranty in the deed estops the plaintiffs. Undoubtedly the covenant of warranty protects the consideration, and as that was in the form of services to be rendered, John W. Scott will be entitled to his action for damages, if he rendered these services. This question has not been investigated in the present action; but if the old man turned the son out of possession of the premises and took exclusive possession to himself, and died 'in such exclusive possession, it is not very likely that a breach of covenant will be enforced against his personal representatives, which was not thought worth asserting against the old man himself.
However this may be, we see nothing in the covenant of warranty to change our construction of the operative words of the [134]*134grant. As these words were expressly limited to take effect only after the death of the grantor, they were necessarily revocable words. The doctrine of the cases is, that whatever the form of the instrument, if it vest no present interest but only appoints what is to be done after the death of the makér, it is a testamentary instrument. It signifies nothing that the parties meant to make a deed instead of a will. If they have used language which the law holds to he testamentary, their intention is to be gathered from the legal import of the words they have employed, for all parties must be judged by the legal meaning of their words.
The revocable words of the first instrument having been revoked by the subsequent will, the estate must go to the devisees; and John W. Scott, if entitled to any redress, must seek it by a personal action against the legal representatives of the decedent.
The judgm§nt is reversed, and a venire facias de novo is awarded.
Agnew, J., dissented.