The herald., 1893-10-28
Judge Clark Says 1t Was Neither
Fish, Flesh Nor Fowl.
She Tried TO Make a Deed That Would
BE Il VIII.
IlIs Held to BE a Deed, but strsn geiy
Enough the Learned Court Finds
N supplementary Deed
VIII.

little amount OF property.
The contest arose upon petition to
probate two instruments, one II date
the S,h OF April 1898, as the will of the
deceased, and the other of date the 26th
ci April, 1893, as codcil.
The contestant alleged all OF the statu-
tory grounds but the only one urged at
the Trial and upon argument was that
tre Instruments offered are not testa-
n.entsry in character. The former, that
OF date April the 9Th, partakes of the
form OF deed. The deceased was
named as the party Of the first part,
her.mother, Rose Lyons, as the party
oi the second part and her daughter,
Pearl Aldeane Partridge, minor, as the
party Of the third part. 1t recites that
h.is. P9gg Was the owner OF the real
p,Jpetiy therein described; that che
wne,di srous OF making provision for
t,epitte support and maintenance OF
h4 libther and daughter, and that in
r,nel leraton of the love and affection
had he bore them she "does by these
p,ef nts & We, grant, convey and con.
ii M ssV her mother and her heirs an
rndt did one-third OF the real property
iheis 1bescribed and to her mother in
trust f her daughter, during her mi
nori,s Van undivided two-thirds of the
property.
Ia deciding the contest Judge Clark
tuys at is OF course the rule that the
iexal declaration Of PERSONS mind as
10 rue manner in which he would ave
his property or estate disposed of after
~, death need not be by instrument in
any particular form. That the instru-
menJ may be in the form of note or
check; an entry in q diary or account
h5hk : letter, contract or deed, yet if
written with the formalities required bv
The statute it will be received and pro-
bated as will.
But while in determining whether a
given instrument is or is not a will, it is
not material what it is called upon its
face, and the material inquiry is as to
the effect and operation that the maker
intended iJ to have, still the rule does
not mean that the intent of the party
executing the instrument will prevail
against the real nature of the transac-
ton Ii the instrument is in law and
in fact deed, that the maker intended
it as will ie OF TO moment, for the in
tentiou OF the maker much as possible
will be gathered from the instrument
iteeIf.
The instrument in question is curl
ous specimen of legal conveyancing, and
illustrates the folly and danger of de-
parting from the beaten paths and that
such departure can result only in uncer-
tainty and litigation.
Thus in addition to the provisions
and recitals contained in it, and above
referred to, and after defining the nature
- -. A.
party of the secoud part and authoriz-
ing her from the date hereof to cell,
mortgage, lease" etc., the property con-
veyed; and after providing that in the
event OF the death of the party of the
second or third parts before partition
Of the property conveyed shall have
been made, then the title to the whole
therein snail vest in the survivor, it
contains the following: ''And I, the
said party OF the first part, do hereby
declare that do sign and make this
deed of gift and OF trust as for and in
the nature and stead of will; that /
do hereby annul all former will or wills
by me made, and that certain deed of
trust made by me in September, 1892,
which said trust deed was made as for
and in place of will. and which l
hereby render void and as of no effect.
And | do further declare, that | am of
sound and dispoeing mind and not act
ing under undue influence, menace or
duress Of any person whatsoever"
Then follows the usual habendum
clause of deed, viz: ITO have and to
hold the above granted premises, to-
gether with the appurtenances, and
every part thereof unto the said parties
of the second and third parts, reHpect-
lively, as their interests may herein
before appear, upon the trust as herein
limited, described and declared, and to
their heirs and assigns forever"
The instrument is, as before stated,
acknowledged and recorded. 1t is also
attested by three witnesses. The at
testation clause reads: "The foregoing
instrument. consisting of four pages be.
sides this, was at the date hereof by the
said Minnie Figg signed, sealed and
published as, and declared to be by her
deed of gift and Of trust as used for
and in place of last will and testament
and in the presence of us. and each OF
us, who Mt her request and in her pres
ence a2d in the presence of each other,
and without the presence OF the parties
OF the sectad and third parts named
therein, have subscribed our names as
witnesses thereto"
The peculiar form of the instrument
the fact that it is attested nc we'll as
acknowledged; that it has all of the
elements and parts of q deed, but recitee
that 1t is made for and in the nature of
and inatead of will, and the oral testi-
mony at the trial that the maker wished
to avoid the necessity of probate pro-
ceedings, all lead to the conclusion that
the object and intent was to prepare an
instrument that could be made opera
tive as either will or deed. This,
however, cannot be. While an instru-
ment may be will in part and deed
in part, 1t cannot, as whole, be both
will and deed, but must be one or the
other.
will speaks at the death OF the tes-
tator. 1t has no operation until then.
But deed must take effect, If at oil,
upon its execution. When, therefor,
IN instrument possesses characteristics
OF both deed and will, the test by
which to determine whether it be one
or the other is whether or no it passes
present interest.
II by its terms it does not pass an in
terest or right until the death of the
maker it will be held to be a will. If It
does pass present interest or right it
will be held to be deed. APPLYING
this test to the instrument under con-
sideration, there can be but one result.
II has the clements and essentials OF a