#### L. H. BECK, Trustee in Bankruptcy of the Estate of A. G. BLANCHARD, SR., Bankrupt, v. DEXTER BLANCHARD, MAGGIE E. BLANCHARD, A. J. BLANCHARD, A. G. BLANCHARD, JR., and Others.

(Filed 15 June, 1936.)

Deeds A a — Instrument in this case held a deed and not a will.

A husband and wife executed a paper writing purporting to convey the lands therein described, but stipulating that it was understood that they “retain and reserve to themselves their right and title to all the above lands during their life, and this deed to become effective at and after the death” of the husband and wife. *Held,:*The instrument is a deed and not a will, since it evidences the intent that title should pass to the person therein named upon the execution of the instrument, reserving the right of possession in the husband and wife, and the instrument conveys the title with the right to possession postponed until after the death of the surviving husband or wife.

Appeal by defendants from *Barnhill, J.,*at March Term, 1936, of Wake.

Reversed.

This is an action to recover judgment that a certain paper writing, dated 15 September, 1931, and executed by A. G. Blanchard and his wife, Maggie E. Blanchard, purporting to convey the lands described therein to the defendants, is ineffective and inoperative as a deed of conveyance, because of certain provisions contained in said paper writing, or, if said paper writing is a deed of conveyance, that it is void, because executed without consideration and in fraud of creditors, and for judgment in either case that plaintiff is the owner and is entitled to the immediate possession of the lands described in said paper writing, as an asset of the estate of A. G. Blanchard, bankrupt.

The action was heard on plaintiff’s motion for judgment on the admissions in the pleadings that the paper writing described in the complaint is ineffective and inoperative as a deed of conveyance. The facts admitted in the pleadings are as follows:

On 15 September, 1931, A. G. Blanchard and his wife, Maggie E. Blanchard, executed a paper writing, which purports to convey the lands described therein to the defendants, subject to the following provision which is contained in the paper writing:

“It is expressly understood that the said A. G. Blanchard, Sr., and his wife, Maggie E. Blanchard, do hereby retain and reserve to themselves their right and title to all the above lands during their life, and this deed to become effective at and after the death of A. G. Blanchard, Sr., and his wife, Maggie Blanchard.”

*277Tbe said paper writing was duly recorded in tbe office of tbe register of deeds of Wake County on 29 October, 1931.

After tbe said paper writing bad been recorded, in a proceeding in bankruptcy pending in tbe District Court of tbe United States for tbe Eastern District of North Carolina, on or about 19 May, 1932, A. G. Blanchard, Sr., was duly adjudged a bankrupt, and thereafter tbe plaintiff was elected, appointed, and duly qualified as trustee in bankruptcy of tbe estate of A. G. Blanchard, Sr., bankrupt. Thereafter, and prior to tbe commencement of this action, A. G. Blanchard, Sr., died, leaving surviving as bis widow tbe defendant Maggie E. Blanchard.

At tbe bearing of plaintiff’s motion, tbe court was of opinion that tbe paper writing dated 15 September, 1931, and executed by A. G. Blanchard, Sr., and bis wife, Maggie E. Blanchard, is ineffective and inoperative as a deed of conveyance, because of tbe provisions contained therein whereby A. G. Blanchard and bis wife, Maggie E. Blanchard, retained and reserved to themselves their right and title to tbe lands described in said paper writing, and whereby they declared that it was understood that said paper writing was to become effective at and after tbe death of tbe said A. G. Blanchard, Sr., and bis wife, Maggie E. Blanchard, and accordingly so adjudged.

It was further ordered and adjudged by tbe court that tbe plaintiff, as trustee in bankruptcy of tbe estate of A. G. Blanchard, Sr., bankrupt, is tbe owner and is entitled to tbe immediate possession of tbe lands described in tbe paper writing, subject to tbe dower rights of tbe defendant Maggie E. Blanchard, widow of A. G. Blanchard, Sr., deceased.

Tbe defendants excepted to tbe judgment and appealed to tbe Supreme Court, assigning as error tbe signing of tbe judgment by tbe court.

*Burgess & Balcer for plaintiff.*

*John W. Hinsdale for defendants.*

Connor, J.

It is manifest, we think, from the language of the paper writing which was executed by A. G. Blanchard, Sr., and bis wife, Maggie E. Blanchard, on 15 September, 1931, that it was their intention thereby to convey the lands described in the paper writing to the defendants, reserving the right to the possession of said lands to themselves during their joint lives, and to the survivor during bis or her life. It is clear that it was not their intention to devise said lands to the defendants. The paper writing is therefore a deed and not a will. See *Phifer v. Mullis,*167 N. C., 405, 83 S. E., 582. In that case it is said: “If the grantor intended that the title to the property described in it should pass *eo instanti*upon execution to the grantee, it *(i.e.,*the paper *278writing) is a deed, although the interest conveyed or the enjoyment of it is postponed until the death of the grantor.”

The effect of the clause contained in the paper writing, and set out in the statement of the case, when properly construed (see *Dick v. Miller,*150 N. C., 63, 63 S. E., 176), is to postpone the right of the defendants to the possession of the lands conveyed to them to the death of the grantors. The title to the lands described in the paper writing vested in the defendants immediately upon the execution and delivery of the paper writing.

The judgment is reversed and the action remanded to the Superior Court of Wake County for the trial of the issues raised by the pleadings.

Reversed.