a beneficiary, the trustee to receive and apply the income therefrom to his own individual use during his lifetime. The instrument is held to operate in præsenti, and to be a declaration of trust, and not a will.

See Cribbs v. Walker (1905) 74 Ark. 104, 85 S. W. 244, infra, III. c, 2, (k); Cross v. Benson (1904) 68 Kan. 495, 64 L.R.A. 560, 75 Pac. 558, supra, III. c, 2, (d).

And see Re Tolerton (1915) 168 Iowa, 677, 150 N. W. 1051; Thom v. Thom (1905) 101 Md. 444, 61 Atl. 193; Ritter's Appeal (1868) 59 Pa. 9.

(k) Reservation of power of revocation during maker's life.

For cases construing the instrument as a will, see infra, III. c, 3, (j).

In Hall v. Burkham (1877) 59 Ala. 349, an instrument in the form of a deed, which conveys all the property owned by the grantor to a trustee for the benefit of her grandchildren, is held to be a deed, although the grantor reserves possession of the property, and the rents and profits thereof, during her lifetime, and, in addition thereto, reserves the right, should she "at any time think proper so to do, to revoke this deed." With respect to the effect of the reserved power of revocation, it is said: "And in regard to the power of revocation, the better opinion is that it tends rather to rebut than to sustain the idea that the instrument containing it is of a testamentary character. The insertion of such a clause, so far from indicating an intention to make a will, imparts quite a contrary color to the transaction, as a will wants not an express power to make it revocable.' 1 Jarman, Wills, 17."

So, in Mays v. Burleson (1913) 180 Ala. 396, 61 So. 75, the grantor, in an instrument in the form of a deed, reserves to himself the "full possession and control" of the lands conveyed during his lifetime, and further stipulates that, after his death, the lands are to be the property of the grantee, provided "that I do not sell said land during my lifetime; in such event

this deed is to be null and void." The court says: "The fact that the grantor reserved the power to sell the land is a strong indication that he did not intend it to operate as a will. If he intended it as a will, a reservation of the power to dispose of the property, or revoke the instrument, was not necessary, as he had this right, if it was a will, independent of the reservation."

Cribbs v. Walker (1905) 74 Ark. 104, 85 S. W. 244, involved an instrument in the form of a deed of trust, providing that the property should be held in trust for the grantor during his natural life, that the grantor might at any time direct a conveyance, lease, or mortgage of the property, which the trustee was bound to carry out, and reserving a right of revocation of the instrument in the grantor. This instrument is held a deed. The court says: "In our opinion the form and language of the instrument clearly indicate the intention of the grantor to convey the legal title in præsenti. It contains apt words of conveyance usually employed in a deed of conveyance, and the reservation to the grantor of the use during his life, and the right to direct a conveyance to be made by the trustee to other parties, and to recall or revoke the trust, all, instead of showing an intention to make the instrument a testamentary paper, to take effect only at his death, imply an immediate passage of the title. If Cribbs [grantor] intended the paper to be a will, and retained it in his possession as such, why the necessity of incorporating those reservations in the instrument? If it was not to take effect until his death, the reservation of the life estate and right to direct a sale and to revoke the trust was useless, as, under a will, he possessed those rights and powers, and more, without such express reservation."

In Kelly v. Parker (1899) 181 Ill. 49, 54 N. E. 615, an instrument in the form of a deed of trust is held a deed, and not a will, notwithstanding a reservation of the use, control, and en

joyment of the property conveyed during the grantor's life and, in addition thereto, a reservation of a power. of revocation. The deed, the court says, is not a conveyance intended to take effect in the future, but "it purports to convey the premises absolutely to the grantees at the time the deed was executed, subject to certain reservations, conditions, and trusts."

And in Durand v. Higgins (1903) 67 Kan. 110, 72 Pac. 567, the instruments in question were a deed conveying on its face an absolute title in fee simple, and a written agreement taken back by the grantor from the grantees, providing that the grantees were not to sell or dispose of the property conveyed during the lifetime of the grantor, without his consent, and that the property should always be his as long as he lived, with the right to convey it as though the deed in question had never been given. "By the entire transaction," the court says, "the grantor intended to convey to the grantees a present interest. . . . The result amounts to nothing more than a conveyance in fee simple to the grantees, with a limitation that the title thus conveyed in præsenti goes encumbered with a life estate in the grantor."

Reservation in a deed of the possession, use, and enjoyment of the land, and of the right of revocation of the instrument and of the power of selling the property, does not operate to make the instrument a will, it is held in Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570, 140 Pac. 242. "The reservation of the power to revoke did not operate to destroy, or in any wise restrict, the effect of the deed as a present conveyance of a future vested interest," it is said: "It merely afforded the means whereby such vested future estate could be defeated and devested, before it ripened into an estate in possession."

In Sims v. Brown (1913) 252 Mo. 58, 158 S. W. 624, the maker of an instrument in the form of a deed conveyed lands to his daughter, and appointed a trustee to act for her in respect of the lands, which trustee is requested

"at any time after my [grantor's] decease," to sell certain portions of the land. The grantor also reserves the right to sell and dispose of the land, if he desires, or necessity requires. The phrase "after my decease" is construed as "nothing more than a postponement of the time when the trustee is to take possession of the land for the purposes of the trust." And the intention to convey a present interest is held not to be overcome by the reserved power of disposition. The instrument is held to be a deed, and not a will.

So, a provision in a deed to the effect that "the second party will deed back to the party of the first part, when called for so to do," is held, in Stamper v. Venable (1906) 117 Tenn. 557, 97 S. W. 812, not to have the effect of rendering the instrument ambulatory in character, to take effect upon the death of the maker; and the instrument is held to be a deed, notwithstanding the provision.

It is said obiter in Lewis v. Curnutt (1906) 130 Iowa, 423, 106 N. W. 914, that, even if the grantor in that case had reserved the right "to revoke the trust in whole or in part, it is well settled that a power of revocation, reserved to the grantor of a trust, does not prevent the passing of a present interest by the delivery of a deed."

An instrument in the form of a deed, reserving a life estate and the right to sell, lease, or convey the land conveyed, and providing for a reversion of the land to the grantor upon the death of the grantee prior to the death of the grantor, is not testamentary in character, it is held in Brady v. Fuller (1908) 78 Kan. 448, 96 Pac. 854, but conveys a present estate. With respect to the clause reserving the right to mortgage or convey, it is said: "If it should be interpreted as a reservation of the power to convey, it would necessarily fail because of repugnance to the preceding grant. If, after conveying the property, the grantor undertook to keep a string upon the land and retain the power to mortgage, control, and convey it, we would .. 'be bound to disregard that clause, and

hold that it did not serve to defeat the conveyance of the fee.' However, under a fair interpretation of the clause, it may be given effect and made to accord with the preceding clause, importing the conveyance of a present interest. It will be noticed that the claim follows directly after the reservation of a life estate in the property conveyed, and it is not unreasonable to infer that, in the second reservation, the grantor referred to the control and disposition of the life estate."

With respect to the clause providing for the reversion of the land in case of the grantee's prior demise, the court says: "Evidently it was her [grantor's] notion that she could convey the land . . . and retake it

in the event that she should outlive the grantee; but, under the authorities cited, it is clear that she could not take back that which had been expressly granted. This clause does not furnish much support to the theory that the instrument was testamentary in character. As will be seen, the provision is not that the gift or transfer shall take effect at the death of the grantor, but that the interest conveyed is to be revested in the grantor, on the death of the grantee, if such should occur before the death of the grantor. Instead of a posthumous effect, the language indicates a purpose that the instrument should take effect at once, and that it should operate as a deed."

And see, in connection with the preceding case, Daniel v. Veal (1861) 32 Ga. 589, in which a clause in which the maker reserves to himself "the right of revoking this deed of gift" is held invalid, as being repugnant to the operative portion of the instrument.

In Price v. Gross (1918) 148 Ga. 137, 96 S. E. 4, a clause to the effect that if the donor should return from the war, and feel disposed "to sell or settle it [the land], this deed of gift is null and void," was held not to militate against the conclusion that the instrument was a deed.

See also Nichols v. Emery (1895) 109 Cal. 323, 50 Am. St. Rep. 43, 41 Pac. 1089, supra, III. c, 2, (j); Kokomo

Trust Co. v. Hiller (1917) Ind. App.

—, 116 N. E. 332, supra, III. c, 2, (e); Wall v. Wall (1855) 30 Miss. 91, 64 Am. Dec. 147, supra, III. c, 2, (g); Horn v. Broyles (1900) Tenn. 62 S. W. 297, infra, III. c, 2, (0); Colby v. Colby (1855) 28 Vt. 10, supra, III. c, 2, (e); Blanchard v. Morey (1883) 56 Vt. 170, supra, III. c, 2, (f); Tompson v. Browne (1835) 3 Myl. & K. 32, 40 Eng. Reprint, 13, 5 L. J. Ch. N. S. 64, supra, III. c, 2, (j).

(1) Conveyance conditional on
survivorship of grantee.

For cases construing the instrument as a will, see infra, III. c, 3 (k).

It is held in Thomas v. Williams (1908) 105 Minn. 88, 117 N. W. 155, that a deed in the usual form is a present conveyance, and not a will, despite the following clause contained therein: "The intent of this deed being to convey to said second party all of said land, in case he survives said first party; otherwise said land to be vested in first party in case he survives said second party." "If, by the terms of the instrument, the right or interest passes at once, subject to a contingency over which the grantor has no control, it is a deed," the court says, "and irrevocable, even though the enjoyment of the thing granted is postFoned until his death."

In Abbott v. Holway (1881) 72 Me. 298, the grantor in the deed involved provides that the instrument "is not to take effect and operate as a conveyance until my decease, and in case 1 shall survive my said wife [grantee] this deed is not to be operative as a conveyance, it being the sole purpose and object of this deed to make a provision for the support of my said wife, if she shall survive me.” This instrument is held to pass an irrevocable interest, and not to be testamentary in character.

And see Chavez v. Chavez (1890) Tex., 13 S. W. 1018, involving an instrument designated by the maker as a last will and testament, in which it is set out that, in consideration of the grantor's prospective marriage with the grantee, the grantor declares

grantee "all other property which they may possess, both real and personal, at their death," and it is subsequently stated that the conditions of the agreement are such that, if the grantee cares for the grantors during their natural lives, "then immediately, at our death, she is to have and shall have the above-described land, together with all the personal property of every description which we may at our death have." The instrument is viewed by the court as conveying a present interest, the enjoyment of which is postponed, and as being, therefore, a deed.

See White v. Hopkins (1887) 80 Ga. 154, 4 S. E. 863, supra, III. c, 2, (f); Owen v. Smith (1893) 91 Ga. 564, 18 S. E. 527, supra, III. c, 2, (d).

(n) Provision that property is to be divided among grantees at maker's death.

For cases construing the instrument as a will, see infra, III. c, 3 (m).

In Watson v. Watson (1857) 22 Ga. 460, the instrument is in the form of a deed, containing a recital of consideration and the usual words of conveyance, but providing that the property conveyed is to be divided between the grantees at the grantor's death, and that, if any of the grantees marry or come of age during the grantor's lifetime, they are to receive their portions of the estate. On the ground that the words, "at my death," refer to the division and not the vesting of the property, and that the clause with respect to the division upon marriage or the attainment of majority clearly indicates an intention that the instrument shall, or at least may, take effect during his lifetime, the instrument is held to be a deed.

So, in Egerton v. Carr (1886) 94 N. C. 648, 55 Am. Rep. 630, the instrument in question provided that the maker leaves certain notes in trust with her son-in-law, "to be equally divided between" the maker's daughters, after her death. The instrument is held to be a deed of conveyance, operating at once, and not a testamentary disposition of the fund.

And an instrument embodying all the requisites of a statutory deed is

held, in Spencer v. Robbins (1886) 106 Ind. 580, 5 N. E. 726, not to be converted into a will by a clause following the description of the land, providing: "To be equally divided between them at my decease, and after the payment of all my funeral and burial expenses by them fully settled; and they are to pay all taxes and other expenses of repairs and improvements on the same during my natural life, and then the title to vest in them absolutely." "The most that can be said of the recitals is," the court says, "they manifest an awkward and probably successful attempt to reserve to the grantor a life estate in the land. The con

veyance, in our view, vests a present estate in fee simple in the grantees."

See Rawlings v. McRoberts (1894) 95 Ky. 346, 25 S. W. 601, supra, III. c, 2, (g).

And see supra, III. c, 2, (j), generally.

(0) Provision that title is to vest or pass upon maker's death.

For cases construing the instrument as a will, see infra, III. c, 3 (n).

An instrument possessing all the essentials of a deed is held in WIMPEY v. LEDFORD (reported herewith) ante, 7, not to be given a testamentary character by a clause providing that "this deed is made with the understanding that the aforesaid Samuel Ledford and Nancy Ledford shall have all controlling power of the above-described premises during their lifetime, and at their death the title is to pass to parties of the second part." The court reasons as follows: "In the absence of any reservation, implied or expressed, against. the vesting of the interest in the grantees upon the execution and delivery of the instrument, the words last quoted [the part of the clause reserving the controlling power] may reasonably be held to preserve in the grantors the right to use and enjoy the property during their lives. The language employed does not admit of a more extended meaning. The closing phrase of the limitation provides that, 'at their [grantors'] death, the title is to pass to the par