#### Charles Babb, and Wife, *vs.*Cuthbert Harrison, et al.

An instrument, in .form a deed, by which a mother *made, gave*and *bequeathed,*two slaves, to her son, to go into his possession at her doath: *Held,*upon construction of the whole instrument, to be testamentary, and not a deed ; and, there being but two subscribing witnesses, that it was void.

BEFORE JOHNSTON, OH., AT FAIRFIELD, JOLT, 1856.

The decree of his Honor, the circuit Chancellor, is as follows:

Johnston, Ch. This case comes up for hearing upon hill and answer.

The subject of litigation is a family of slaves; and it is admitted in the answer, that the plaintiffs are entitled to a distributive share of this family, unless the paper filed as an exhibit vests the title to them in the defendant, Cuthbert Harrison.

The plaintiffs admit the execution of the paper exhibited, and, *(if a deed,)*that it was properly delivered.

The case turns upon the question, whether the paper exhibited by the defendants is a *deed*or a *will.*If a deed, the defendant Harrison is entitled, by its operation, to the slaves in question; if a will, it is void, being attested by only *two*subscribing witnesses, and, in consequence, the plaintiffs are entitled to a distributive share in the slaves, as set forth in their bill.

I am of the opinion that the paper, under which the defendant Harrison claims the property, is testamentary. Though it creates an estate to be enjoyed *in*futuro, this is consistent with its being a deed, as is laid down in *Dawson*vs. *Dawson,*and in *Daggers*vs. *Estes:*— and therefore I do not base my *112opinion upon this feature of the paper. I would characterize a deed, as an instrument which creates an interest to be enjoyed *in presentí*or *in*futuro, and which *operates in presentí.*A will always *operates in futuro.*This distinction I took .in my circuit decree, in the case of *Wheeler*vs. *Durant,*
      *(a)*
      **argued before me at Marion. In the paper before me, the words employed are *11 give, malee*and bequeath,” and taken together, import an intention that it shall operate *in futuro.*All these words can be reconciled with this intention, while the last one *“*bequeath,” is inconsistent with an intention that the paper shall operate *in presentí.*The words “ to go into the possession of the said Outhbert Harrison at the time of my death” are confirmatory of the paper being designed to operate *in futuro.*The attestation of the paper, *“*made and *executed*in the presence of,” omitting the word *delivered,*likewise confirms the construction which I give the paper as being testamentary, rather than a deed.

Upon the whole, from the face of the paper, it is to be inferred that the intention of the maker was, that it should have a future operation, after the death of the maker; and, although it may have the introductory words of a deed, “ know all men by these presents,”- — has a consideration expressed, (one dollar,) has a seal affixed, and was delivered to the beneficiary, (which delivery could not have the effect of making that a deed, which was not intended as a deed,) I must hold it testamentary. Mr. Justice Buller says, “That the 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. In one of the cases 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 (the instrument) should have a future operation after his death, it was considered as a will.”(b) These observations *113are very appropriate to tlie case before me, and are in consonance with the distinction which I have drawn between a deed and a will.

I decree that the paper, by which the defendant Harrison resists the claim of the plaintiffs, be delivered up to the Court for cancellation; and that, upon administration being taken out upon the estate of Mrs. Sarah Harrison, the defendant, Harrison, deliver the slaves mentioned in the pleadings to such administrator as may be appointed. Costs to come out of the estate of Sarah Harrison.

COPY.

*South Carolina, )*

*Fairfield District,*j

Know all Men by these Peesents,

That I, Sarah Harrison, of the District and State aforesaid, for and in consideration of the love and affection that I bear towards my son, Cuthbert Harrison, and one dollar to me in hand paid at and before the signing of this instrument, do give, make and bequeath, and by these presents do give, make and bequeath, unto my said son, Cuthbert Harrison, a certain negro woman Harriet, and her daughter Ellen, together with their future issue and increase; to have and to hold the said negroes, Harriet and Ellen, and to be at his disposal when and wherever he may think fit or appoint; now the said negroes, Harriet and Ellen, are to go into the possession of the said Cuthbert Harrison at the time of my death, and upon the receipt of said negroes, he is hereby required to pay to my grandson, William Ashford, one hundred dollars in current money; to my great grandson, Tyler Johnson, son of my grandaughter, Sarah T. Johnson, one hundred dollars in current money ; and to my great granddaughter, Sarah 0. Harrison, daughter of my grandson, John T. Harrison, one hundred dollars in current money; to my great grandson, *114Charles Littlejohn Ashford, son of John Ashford, one hundred dollars in current money. "Witness my hand and seal, this second day of March, in the year of our Lord, one thousand eight hundred and fifty-three, and of the sovereignty and independence of the United States of America, the

SARAH H HARRISON, [l. s.]

(The interlining and erasing done- before signing.) Made and executed in the presence of us, this 2 March, 1853.

Jon’n. Davis,

Jambs Aiken.

*South Carolina, }*

*Fairfield District,*j

I, Sarah Harrison, of the District and State aforesaid, do other and further make and require my said son, Cuthbert Harrison, in view of the fact that should he, the said Cuth-bert Harrison, depart this life, and leaving no lawful issue, I request him, the said Cuthbert Harrison, to make and settle the said negroes, Harriet and Ellen, with their future issue and increase, to my granddaughter, Mary Morgan, wife of James Morgan, and to the heirs of her body forever.

Witness my hand and seal, this second day of March, in the year of our Lord, one thousand eight hundred and fifty-three, and of American Independence the seventy.

SARAH ¡xj HARRISON, [l. s.]

Made and executed in presence of

Jno’n. Davis,

James Aiken.

*115The defendant appealed, on the ground :

Because, it is respectfully submitted, the instrument executed by Sarah Harrison, is a valid deed, and not testamentary, as held by Ms Honor.

*Boylston,*for appellant.

*Hion,*contra.

**3 Rich. Eq. 454,

6) Habergham *vs.*Vincent, 2 Ves. Jr. 231.

The opinion of the Court was delivered by

*Wasdlaw, Cs.*

The tribunal of dernier resort in this State, *(Jaggers*vs. *Estes,*2 Strob. Eq. 343,) has determined conclusively that a donor by a deed, without naming trustees, may convey an interest in remainder in a chattel after reserving a life estate „to himself, if it be apparent from the construction of the whole instrument of gift, that a present title was intended to pass irrevocably to the donee, and that the enjoyment only was postponed. Nevertheless it follows from the definition of a will, a lawful disposal of one’s estate to take effect after his death, (Carthew, 38; 1 Swinb. 25; Co. Litt. 111,) that the postponement of enjoyment by the donee, until the death of the donor, still leads to the conclusion, in any controversy whether an instrument of gift be an irrevocable deed or testamentary, that the instrument is testamentary, unless it may be fairly demonstrated from the text and context, that a future interest was presently and irrevocably given. The prominent distinction between a will and a deed is, that a will has no operation until the death of the testator, and that a deed must take effect on its execution, and immediately pass the estate or interest given, although it is not essential that this interest shall immediately pass into the possession of the donee. If the interest created do not arise until the death of the donor or some other future time, the instrument cannot be a deed, although it may be so denomi*116nated by the maker, may have express words of immediate grant, may have sufficient consideration to support a grant, and may be formally delivered. *Hixon*vs. *Withand,*1 Ch. Ca. *248; Pronde*vs. *Green,*1 Mod. 117; *Shargold*vs. *Shargold,*2 Ves. 440; *Habergham,*vs. *Vincent,*2 Ves. Jr. 231; *Allison*vs. *Allison,*4 Hawks, 141. On the other hand, if the provisions of the instrument be testamenta^ in their character, — if the intention of the maker to dispose of his estate after death be sufficiently manifested, and this intention be lawful in itself, and the writing have the statutory formalities, the instrument will operate as a will, whatever may be its form. *Lawson*vs. *Lawson,*1 P. Wms. 440; *Hall*vs. Hewer, Ambler, 203, and the cases cited *supra.*The instrument, the character of which we are considering, does not call itself a deed, as the instrument in *Wheeler*vs. *Durant,*3 Rich. Eq., 453, did; which was 'the principal foundation of the doubts expressed in that case concerning the testamentary character of the writing there in controversy. It does not profess to have been delivered, and the omission of the internal evidence of this fact of delivery, which fact is essential in the execution of a deed, is a principal ground in *Ragsdale*vs. *Booker,*2 Strob. Eq. 248, for holding the writing there in question to be testamentary. It contains no unequivocal words of immediate grant; for the word “ give” is quite as appropriate and as commonly used in a will as a deed; the word “ make,” utterly unintelligible in some of the instances of its employment here, is in all the instances as applicable to a will as a deed; and the word “ bequeath” is characteristic of a will, and controls the other equivocal words of gift.

This paper has the salutatory words commonly employed in a deed, “ know all men by these presents,” but these words are in no respect contradictory of a will; and similar, even stronger words, were used in instruments adjudged to be testamentary in the cases of *Habergham*vs. *Vincent,*and *Allison*vs. *Allison,*and see *Alexander*vs. *Burnett,*5 Rich. 189. It *117omits moreover in the attestation the characteristic words of a deed, “signed, sealed and delivered,” so well known and used as to be familiar to the most ignorant scriveners, and employs instead the words “ made and executed” confessedly equivocal, but rather pertinent to a will than a deed. It also has a seal, but this concludes nothing, for seals, however unnecessary, are generally appended to wills. It was delivered to the donee or deposited with him, but the property was not delivered, and the instrument is not a symbolic delivery of the property, unless present title was intended to be conveyed. It has in addition to the good consideration, of maternal, affection, the nominally valuable consideration of one dollar, yet this circumstance, although certainly unusual in formal wills, occurred in some of the cases which have been cited and was treated as inconsequential and insignificant.- It has an informal *habendum*and *tenendum*clause, and such clause is usual in deeds conveying real estate, not common in bills of sale and more unusual in wills, yet not inconsistent with testamentary dispositions; and the words “to have and to hold the said negroes Harriet and Ellen,” immediately follow the phrase “ with their *future*issue and increase,” at least unnecessary when a present title even with deferred possession is intended to pass, and they are immediately followed by the phrase “to be at his (the donee’s) disposal, *when*and wherever he may think fit or *appoint"*This latter phrase might possibly in an instrument otherwise definite in character as a deed, receive the interpretation, that the donee whenever it was matter of convenience to him, might dispose of the chattels by ‘absolute or conditional sales before he. came into possession, but to my perception the phrase contains a strong implication, that some act future to the execution of the instrument, was to be done by the donee before his title vested. The slaves were to be his property and “at his disposal” whenever in time to come he should think fit or determine to take them on the conditions and charges imposed. He was to ‘appoint’ *118this time. Also the nature of these charges, that the donee, when he came into possession of the slaves, at donor’s death, should pay certain sums of money to other descendants of the donor, without the creation of any lien on the property given, affords some indication that the writing was intended to he testamentary. Then the double execution of the instrument, although certainly on the same day, and before the same witnesses and probably in immediate sequence, manifests to some extent that the appendix was a codicil, and that the whole instrument was intended to be revocable, and this manifestation receives some additional force from the nature of the requirement in the appendix, that the donee should settle the slaves upon another in case of his death without leaving issue.

It is argued that the judgment of the Court of Law in *Alexander*vs. *Burnett,*5 Rich. 189, is opposed to the conclusion to which this reasoning tends. But in that case words of immediate grant inappropriate to a will, 11 grant, bargain and sell,” were used, there was an express warranty, the instrument was intrinsically denominated a deed, and the property was actually delivered, and all the forms of a deed were observed. It did contain words “ this deed of gift to be of no effect whatever, until my (donor’s) death,” which might well divide opinions, and upon which the judges did differ, but without contesting the judgment of the majority that these words referred to, enjoyment and not to title, the case is palpably distinguishable from the one in hand.

Upon the construction of the whole instrument now in question, we are of opinion that it is testamentary, and that as it lacks the number of witnesses required by our statutes for testaments, it does not obstruct the relief sought by plaintiffs. It is ordered and decreed, that the circuit decree be affirmed and the appeal dismissed.

Johnston, Dunkin and DARGAN, 00., concurred.

*Appeal*dismissed.