that we may be possessed of," is held to be testamentary in character.

(8) Provision that property is to become that of grantee at maker's death. Where grantor conveys, in consideration of love and affection, and by an instrument in the form of a deed, the title to certain slaves, the instrument is nevertheless a will, where it includes a clause which provides. that the grantor "hath the full use of the said negroes" during her natural lifetime, and that, at the time of her death, "the said negroes and their increase shall rise and be the property of the said" grantee. Cravy v. Rawlins (1850) 8 Ga. 450. "If the negroes were to be the property of Elizabeth G. Cravy during the lifetime of Elizabeth Paramore [grantor]," the court says, "it is difficult to perceive how they and their increase could rise and become her property at the time of the death of the latter."

In Symmes v. Arnold (1851) 10 Ga. 506, an instrument in the form of a deed, purporting to convey certain property named therein, is held a will, and not a deed, where the grantor reserves to herself "the use of all the property during my natural life, then to go to the above-named persons, and from thenceforth to be their property absolutely, without any manner of condition." "If an estate in remainder was created," the court asks, "and a present interest in the property was intended to have been conveyed to the donees in the instrument, at the time of its execution, why declare that, after the termination of the natural life of the donor, it should thenceforth be their property' absolutely, without any manner of condition? The words, 'absolutely, without any manner of condition,' were merely strong expressions employed by the donor, as indicative of her intention that the donees should have the unrestricted right and title to the property, after her death."

In Meek v. Holton (1857) 22 Ga. 491, the court, after pointing out a possible ground of distinction between the case under consideration, and the cases of Symmes v. Arnold and Cravy v. Raw

lins (Ga.) supra, says that these two cases are in conflict with Robinson v. Schley (1849) 6 Ga. 515, supra, III. c, 2, (d), and Jackson v. Culpepper (1847) 3 Ga. 569, supra, III. c, 2, (j), and states that it considers the latter to be correct.

See Thomas v. Byrd (1916) 112 Miss. 692, 73 So. 725.

See also Bigley v. Souvey (1881). 45 Mich. 370, 8 N. W. 98, supra, III. c, 3, (o); Crawford v. M'Elvy (1843) 2 Speers, L. (S. C.) 225, supra, III. c, 3, (d).

(t) Provision that property is to go into grantee's possession at maker's death.

Jordan v. Jordan (1880) 65 Ala. 301, involves an instrument, properly executed as either a will or a deed and delivered to one of the beneficiaries, and recorded as a deed. By its terms, in consideration of natural love and affection, the maker gives, grants, and conveys all her personal estate to certain persons, giving each particular articles of personalty and a specified sum of money, and the maker's sons were directed to "take charge of all the... property herein and elsewhere deeded, and that they proceed to place the owners thereof in possession of the same, with the least delay and expense possible after my death." The instrument is held a will, the court being of the opinion that an irrevocable disposition of the money and personalty was not intended. It is said: "Nor can it be supposed that it was the intention, if from any cause the identical money on hand at the execution of the instrument should have been lost or converted, and at her death there were other moneys sufficient to meet the dispositions of the instrument, that the right of the donees should not attach to such moneys-that their rights were confined and limited to the identical money in the hands of the donor when the instrument was executed. Yet, if it is a deed, speaking and taking effect from its execution, that would be the consequence. Again, the disposition is of all the personal property of the donor; and, if it be a deed, it strips her of all right and interest therein, except possession during her

life. It is evident, portions of this property must be consumed in the use, and much of it was of that kind which may be designated perishable." In addition to these considerations, the court is influenced also by a provision granting to one beneficiary "a horse to be selected of her own choice, out of my stock of horses," and a clause containing directions with respect to the grantor's burial.

And see Babb v. Harrison (1856) 9 Rich. Eq. (S. C.) 111, 70 Am. Dec. 203, where, upon the construction of the whole of an instrument, in which a mother gave, made, and bequeathed certain slaves to her son, to go into his possession at her death, it is held to be a will.

(u) Provision that property is to be delivered at maker's death.

An instrument, in the form of a deed, conveying a slave for a valuable consideration, to be delivered at the death of the seller, is held in McGlawn v. McGlawn (1855) 17 Ga. 234, to be a deed containing a reservation of a life estate in the slave, and not a will.

(v) Provision that maker shall retain possession of instrument during lifetime.

In Kelly v. Richardson (1892) 100 Ala. 584, 13 So. 785, an instrument in the form of a deed, granting, bargaining, and selling a lot of land, but reserving the "use, occupation, and enjoyment and control of the same" for the grantor's life, and providing that he is "to retain possession of this conveyance" during the term of his natural life, is held to be a will, and not a deed.

So, it is held in Griffin v. McIntosh (1903) 176 Mo. 392, 75 S. W. 677, on later appeal (1905) 188 Mo. 327, 87 S. W. 455, that an instrument in the form of a deed is testamentary, as conveying no present interest, where it contains a clause providing that the

maker and his wife are to live on the land conveyed, until their deaths, as members of the grantee's family, and reciting that the deed is to be held in the possession of the maker and his wife until their deaths, at which time it is to be delivered to the grantee.

Where a grantor, in an instrument in the form of a deed, provides that the deed shall be delivered to the grantee at his death, at which time her title shall become absolute upon the performance of certain conditions, it is said in Culy v. Upham (1903) 135 Mich. 131, 106 Am. St. Rep. 388, 97 N. W. 405, that "it is quite apparent that the grantor, in this deed, intended that title should remain in him until after he died, and that it should then pass to defendant [grantee], if she had performed the conditions. This intent was testamentary in character, and could not be consummated by a deed."

(w) Conveyance to wife "during her
widowhood."

While admitting, in Sartor v. Sartor (1861) 39 Miss. 760, that the natural import of the language used in a deed, in which the grantor gives all of his property to his wife, "during her widowhood," is an immediate vesting of title in the wife with a postponement of enjoyment, it is held that, in view of the fact that such a construction will have the effect of stripping the grantor of his entire estate, real and personal, and of the improbability that the grantor intended it to have such effect, the instrument should be regarded as a will.

(x) Provision that maker's executors shall convey, after maker's death. For cases construing instrument as passing a present interest, see supra, III. c, 2 (w).

An instrument designated a bond, reciting that the owner of lands retains full possession of them during his lifetime, and reserves the right to make conveyance of them, but providing that, in case he does not convey the land during his lifetime, this instrument "is to be construed as a conveyance" to a certain person, is held in Roberts v. Coleman (1892) 37 W.

Va. 143, 16 S. E. 482, to be a will, and not a deed. The court says that it "reserves, not simply possession of the land during Coleman's [maker's] life, but also power to dispose of and convey it as he might choose, thus diverting it from the beneficiary under it, and directs his executors after his death to convey it, thus unequivocally manifesting an intent that it take effect only after his death. True, it does say that, if he should not convey it during life, this instrument is to be deemed a conveyance; but it is not to so operate until after his death."

A paper, signed by decedent, purporting to give his home to his housekeeper, and ordering his executor, referred to by name, to execute and deliver a deed therefor after his death, was held in Losche's Estate (1919) 264 Pa. 58, 107 Atl. 375, to be testamentary in character so that no suit for specific performance could be maintained thereon. The court observed that the deed vested no present interest, but only appointed what was to be done after the death of the maker, and that that was the test of its character.

IV. Conveyance as both will and deed. In holding it proper to construe one portion of an instrument to be a deed, and another portion of the same instrument to be a will, the court, in Robinson v. Schly (1849) 6 Ga. 515, says: "Must a conveyance be necessarily homogeneous? Or can it not be a deed in part, and a will as to another part? What is there to prevent a person, in the same instrument, to sell or give a piece of property to one, and to will another piece to the same individual? A, in consideration of love and natural affection, or $500 paid him by B, gives or sells to B a negro by the name of Jim, and wills and bequeaths at his death the rest of his estate, real and personal, to the said B. Can legal ingenuity suggest a plausible reason for not construing this instrument a deed of gift, or bill of sale, as to Jim, and a will as to the residue of A's property?"

So where, in Powers v. Scharling (1902) 64 Kan. 339, 67 Pac. 820, the maker of an instrument designated a

will included therein a conveyance of a present interest in her estate, subject to a life estate therein, it is said that, if "the testator intended that the grant should take effect upon the execution of the instrument as to certain of his property then in possession, and as to certain other of his estate not until his death, the instrument, having been properly executed, would be a contract, and irrevocable as to that part in possession and to which it was intended to vest the title, and testamentary as to the residue."

And where, in Kinnebrew v. Kinnebrew (1860) 35 Ala. 628, an instrument in the form of a deed of gift is construed as a deed of gift with respect to a slave of which it makes disposition, and as a testamentary instrument with respect to a sum of money of which it disposes, it is held proper to construe one part of the instrument as a deed, and another as a will. This is true, the court says, "in reference to an instrument which employs variant and distinct terms in reference to different articles, clearly indicating the intent to give the one a testamentary and the other a present operation."

It is said in Thompson v. Johnson (1851) 19 Ala. 59, that "one and the same instrument cannot be both a will and a deed;" but, referring to that case, it is said in Kinnebrew v. Kinnebrew (Ala.) supra, that "this remark may be correct in reference to the instrument which was then before the court; but it cannot be true, as the authorities show, in reference to an instrument which employs variant and distinct terms in reference to different articles, clearly indicating the intent to give the one a testamentary, and the other a present, operation." Apparently, the language used in the earlier case meant nothing more than that, with respect to the same article, an instrument cannot be viewed both as a will and a deed.

After holding, in Kyle v. Perdue (1888) 87 Ala. 423, 6 So. 296, that one portion of the instrument under consideration is a deed, the court, in discussing the effect of a subsequent

Looney v. McLean, 129 Mass. 35, 37 Am. Rep. 295; Sawyer v. McGillicuddy, 81 Me. 318, 3 L.R.A. 459, 10 Am. St. Rep. 260, 17 Atl. 124; Dollard v. Roberts, 130 N. Y. 269, 14 L.R.A. 242, 29 N. E. 104; Siggins v. McGill, 3 L.R.A. (N.S.) 316, and note, 72 N. J. L. 263, 111 Am. St. Rep. 666, 62 Atl. 411, 19 Am. Neg. Rep. 385; Flaherty v. Nieman, 125 Iowa, 546, 101 N. W. 280, 17 Am. Neg. Rep. 54; Burner v. Higman & S. Co. 127 Iowa, 580, 103 N. W. 802; Morse v. Houghton, 158 Iowa, 279, 136 N. W. 675; Starr v. Sperry, 184 Iowa, 540, 167 N. W. 531.

Messrs. Heald & Cook for appellee.

Weaver, Ch. J., delivered the opinion of the court:

The defendant is the owner of a two-story building in the town of Milford. The first story is occupied and used by him as a pool hall. The second story is divided into rooms to let. Some of these rooms are reached only by a flight of stairs at the rear of the building. Access to the other rooms, several in number, is provided by a flight of stairs leading up the side of the building from the front, and another leading up the same side from the rear and landing on a common platform at the level of the second floor. From this platform there is an entrance which serves all the second-floor rooms except those at the rear already mentioned.

In April, 1917, the defendant employed plaintiff to take charge of the pool hall, for which service. plaintiff was to receive a stipulated weekly wage and to have the use of one of the rooms on the second floor to which access was had by the two stairways and platform to which we have just referred. Plaintiff took possession of the room assigned to him, and, as the two flights of stairs leading to the entrance platform were both open, he used either, as happened to be most convenient, for the purposes of ingress and egress. In May, 1917, when he had been in the defendant's service about six weeks, plaintiff left the pool hall to go to his room by way of the stairs leading up from, the sidewalk in front to the landing platform. In so

doing the fourth or fifth step from the bottom gave way, causing him to fall back to the sidewalk and suffer bodily injury of more or less serious character.

Later this action was brought at law to recover damages on account of such injury, which it is alleged was occasioned by the defendant's negligence in permitting the stairs to become and remain in a rotten, decayed, and unsafe condition.

Answering this claim, defendant admits that the stairway was old, decayed, and unsafe, and that plaintiff fell thereon, but denies that he was injured, and denies that defendant is chargeable with any negligence with respect to said stairway or with respect to the plaintiff's fall or alleged injury.

It is further pleaded that plaintiff knew the condition of the stairway; that the other flight of stairs to the platform was safe to the knowledge of the plaintiff; that access to his room by the safe way just mentioned was as convenient as by the unsafe way, and plaintiff, having used the latter with full knowledge and appreciation of its dangerous condition, assumed the risk of such use, and for like reasons is also chargeable with contributory negli

gence.

The issues so joined were tried to a jury. At the close of the evidence, both parties having rested, the defendant moved for a directed verdict in his favor, on the following grounds:

(1) That it conclusively appears that the defect in the stairs was open and visible, and that another and safe way was provided for plaintiff's entrance to his room, and plaintiff, having taken the dangerous way with full knowledge of the conditions, assumed the risk.

(2) That as a matter of law plaintiff should be held guilty of contributory negligence.

(3) That, plaintiff being in the sole possession of the rooms served by these stairways, the defendant, as landlord, was under no duty or