Year: 1859

! Opinions of the Supreme Court OF the


state of Tennessee, at Jackson, April


Term.


sWsils and Bunpass, John Bushart.


Richard Forrest, on the goth of February. 1867
executed an instrument under seal in the following
/ words:
know all men by these presents that I, Richard
Forrest OF Pike county, for and in consideration of
/ my natural love and affection Do for myself
my heirs, executors, administrators and assigns,
gave Sell and deliver unto my daughter Eliza
| beth Shilling, and Matthew B. Forrest. nv son TO
their heirs and assigns for ever Gffsr U death the
following described property viz: To NV daughter.
Elizabeth Shilling, my negro boy named Aaron and
negro girl named Mariah, with all the increase To
my son Matthew b. my negro boy David and girl
Rose upon this condition. that the said Elizabeth
and Matthew B.. or their heirs and assigns pay or
cause to be paid to my daughter Mary Ann, at my
death the sum of $3.50 each. 80. and them to have
and to hold said negroes. to them, their heirs
and assigns for ever. In testimony hereof have
this 10th February, 1857 set my hand and seal


This was the same day, duly acknowledged for
magistration in Pike county, Mississippi And on
that day endorsed, as received for record by the
proper officer.


WheSber this is to be regarded as deed or tesla
msntary paper, is the question upon which the case
turns. Inc chancellor held it was not tesamentAry,
but took effect as deed pass the title at the date,
subject to the reserved life estates. We unable
to perceive any difference in principle between this
". :
and Walls vs.. Ward, 2 Swan z53.


1t is true, that in both these cases, there an
express reservation Of life estate, possession for
life but in this it is only reserved by implication
and also with condition or rather an ineumbrance
attached The conveyance here il formal and cOni-
plete but it is to operate upon the use and posses
sion only after his death. The claim in the case of
Walls was to take effect after the termination of
nv natural life, |, retaining the property of said
slaves during my life" Here the conveyance is to
his daughter, f" after my DEATH"


There can be no difference between them in this
respect. In both cases the plain meaning is, that
the title is passed. subject to the donor while he lives
That is rendered just certain and distinct by the
words here employed, as it was by the express re-
serVatiOn in the case of Walls and Manly. If this
be so, she same construction must be given, to
the question Of tsN or deed, far that point is
concerned.


The condition in this case, and next to the gift,
that the donee should pay at the death of the donor
$3.50 to another daughter cannot effect the question
The failure to do that would make the conveyance
void; but would not make incumbrance or lien
upon the property. We cannot see how this fact
can have any effect upon the question in hand,
whether a deed testament its force and effect
would be the same as to that incumbrancS Ii is
true that will is disposition of property to take
effect after the death, agreed; but that definition
of q will does not exclude the consideration that
a deed may have the same effect in that par
ticular. The former is necessarily so; but
not the latter ms assumed criterion then, cannot
aid us much in making conclusion. 1t is true, that
deed must take effect R present., but tins may be
so, without the present enjoyment Of possession,
passing either in fact in right If a vested right
to the present or future enjoyment passes that will
do to make the paper a deed But it must be right
to some specific thing then named by the donor and
to a designated person. Not as in the case of Wat
kns and Dean 10 Yerg, 327 when the instrument
conveyed half of the estate he might at his
death. Nor ike the case of Taylor vs.. Taylor,
Hump. 597 where the paper though in the form Of
a deed, had never been delivered so to give it
validity SUCH although it specified the property.


The paper in this case, in that Of Walls, was
acknowledged by the donor and placed on the re
cords. 1t vested nothing in form, substance or e-
gal ceremonies TO give it complete effect title to
the remainder in this slave IN present. and therefore
it is deed and not a will which might be revoked,
and if not would require probate to give 1t effect as
title,


There was then nothing remaining in him Dut the
life estate reserved and that alone passed to his
Armstead the testator of defendant by absolute bill
of sale made to him by Richard, after the execution
of the formev deed.


The result is that the paper was not testamentary
but valid deed and sustains the title of complain
the slave, with the right to possession at the
death of the donor.


The deceee of the Chancellor is therefore right,
and must be affirmed. CARUTHERs
Test NJ D. WEIGH, Clerk.