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be construed most strongly against the grantor and in favor of
the grantee.

It was a principle recognized by the feudal law that there
should always be a known owner of every freehold estate, and
that the title thereto should never be in abeyance. Hence at
conmion law a freehold to commence in future could not be con-
veyed, for the reason that the same would be in abeyance from
the execution of the conveyance until the future estate of the
grantee should vest.

Under the statute of this state a freehold estate may be created
to commence in future: Bev. Stats. 1881, sec. 2969; Rev. Stats.
1894, sec. 3379; and hence the common-law principle above
atated has been entirely abrogated. This deed is in the statu-
tory form, and in the granting part accords with the provisions
of section 2927 of the Revised Statutes of 1881 (Bev. Stats.

Digitized by


216 Wilson v. CABBica [Indiana,

1894, sec. 3346), and contains what are, by law, made operatiye
words of conveyance, and in effect transfers all the estate or in-
terest of the grantors in the lands in suit to the grantee. The
terms "convey and warrant,*' when given their legal purport or
acceptation, fully indicate an intention to convey a present
estate to the grantee, and defend the title thereto; and in no way
is it apparent or to be inferred from these words that the
grantors intended to devise the real estate in question. The in-
strument was acknowledged and recorded in like manner as are
other deeds, therefore we fail to recognize anything which signi-
fies that it was intended to serve the purpose of a will. The
question then arises, What was the purpose intended to be served
by the inapt expression, namely: "To be of none effect xmtil
after the ^^"'^ death of said Bazzle Carrico and Frances Carrico,
then to be in full force"?

It is evident that the drafting of the indenture in question was
not skillfully performed, and that thereby it very closely ap-
proximates to what may be termed the "danger line" by which
a judicial construction might result in adjudging the deed to be
a nullity.

While it may be said, in regard to the point under considera-
tion, that the authorities "fight on both sides" of the question,
however, we find that in the later decisions the courts are in-
clined to uphold a deed of this character, if, upon a reasonable
interpretation of all its parts, it can be said that the grantor did
not intend to create, or in other words execute, that which must
be construed and held to be void.

In construing written instruments courts frequently do— and
properly, too — give to an expression a meaning different from
that which it ordinarily bears, in order to import sense into it
and make it speak that which, upon an inspection of the whole,,
the parties really intended that it should.

We find that there is no ambiguity in the granting clause of
the deed in the case at bar, and, consequently, we are left free to
effectuate the intention of the grantor expressed in the subse-
quent clause or condition. The grantors had, as we have seen by
operative words, clear and significant, conveyed an interest or fee
in praesenti to the grantee; having done this they could not, in
legal parlance, *T)low hot and cold," or in other words, reserve or
take back that which they had granted.

In the case of Owen v. Williams, 114 Ind. 179, the instrument
in contest was in the form of a deed, and in the granting clause^
by its terms, "did convey and warrant to Williams after my de-

Digitized by


March, 1895.] Wilson v. Cabrico. 217

ceafie and not before.'' This court held that the phrase ^after
my decease and not before'' ^^^ did not make the deed testa-
mentaiy, but was meant and operated to show that the grantee's
use and enjoyment of the realty would not begin under the deed
until after the death of the grantor.

In the case of Gates t. Cates^ 135 Ind. 272, the deed therein
in controversy was also in the statutory form, but contained the
following reservation: "The grantor, Prior Gates, hereby ex-
pressly excepts and reserves from this grant all the estate in said
lands, and the use, occupation, rents, and proceeds thereof, unto
himself during his natural life." This court, in that case, upon
a full review and consideration of many authorities upon the
question involved, held that such an instrument must be con-
strued as conveying a present interest in the real estate, the full
enjo^Tnent of which was postponed until after the grantor's

In the case of White v. Hopkins, 80 Ga. 154, cited in Gates v.
Gates, 136 Ind. 272, the deed contained this clause or condition:
"The title to the above-described tract of land to still remain in
the said Lemuel Hopkins [grantor], for and during his lifetime,
and at his death to immediately vest in the said Lewis Hopkins
[grantee]." It was held by the supreme court of Georgia in
that case that an absolute title was, by this deed, conveyed to the
grantee, that it passed a present interest in the land, and took
effect immediately, and that after its execution it was irrevocable
by the grantor.

In Graves v. Atwood, 52 Conn. 512, 52 Am. Eep. 610, the deed
contained the following: "The condition of this deed is such
that I hereby reserve dl of my right, title, and interest in the
aforesaid described pieces of land, with all the buildings thereon,
during my natural life." It was held by the court that this con-
dition, read in the light of the grant, was to be interpreted as a
reservation of the same measure '^^ of use thereafter as tenants
for life as the grantor had before enjoyed it as owner. '

In Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705, the con-
dition was: '^Reserving all the right, title, and interest in and
unto the above-named land, etc., for and during my natural life."

In Bunch v. Nicks, 50 Ark. 367, the deed contained the follow-
ing clause: "And the deed shall go into full force and effect at
my death." The court held this deed to be a valid one, con-
veying a present title to the grantee, with the right of posses-
sion and use postponed until the grantor's death.

In Wyman v. Brown, 50 Me. 139, the deed was as follows:

Digitized by


218 Wilson v. Carbico. [Indiana,

'^his deed not to take effect during my lifetime — ^to take effect
and be in force from and after my death." This was held to be

In the case of Abbott y. Holway^ 72 Me. 298, the instrameat
contained this clause: '^This deed is not to take effect and
operate as a conveyance until my decease/' This was held to be
a good and valid conveyance.

In Shackelton v. Sebree, 86 111. 616, the deed contained coTe-
nants of warranty, and also this clause: '^This deed not to take
effect until after my death — ^not to be recorded until after my

This instrument was held operative as a deed, and not in-
tended as a testamentary disposition of property. These au*
thorities, most of them at least, were cited witii approval by this
court in Gates v. Gates, 135 Ind. 272.

It is a settled legal rule that in the interpretation of an instru-
ment, where the terms employed are ambiguous, or susceptible
of more than one meaning, the court will consider the subse-
quent acts of the parties to ascertain how they understood it, and
as indicating what construction they have placed upon it: H. G-
Olds Wagon *^*^ Works v. Goombs, 124 Ind. 62, and caaea there
cited; Lyles v. Lescher, 108 Ind. 382.

However, while it is proper to resort to this rule to show a
practical construction by the parties, still, after all, the intention
must be determined from the words of the instrument.

The manner in which this deed was treated by the partiea in
this case, as it appears, is briefly as follows: It was executed in
1867 for a valuable consideration and duly recorded. In 1870,
during the lifetime of the grantors, for a valuable consideration,
the grantee sold and conveyed the land to the appellant, subject
to the life estate of the former. This deed was also recorded.
Bazzle Carrico died in 1872, two years and over after the conyey-
ance to the appellant. Frances, his wife, died in 1892, nearly
twelve years after this second conveyance, and not until after her
death, so far as it is disclosed, was this deed called in question.
These subsequent acts of the grantors, in suffering the deed to be
placed upon record, and in permitting the land to be sold and
conveyed by their grantee to the appellant, subject to their life
estate, are incompatible .with the contention of appellee and hos-
tile to the theory now advanced and advocated by him.

In Broom's Maxims, star page 540, in translating a funda*
mental maxim of the law, it is said: "A liberal constmctiott
should be placed upon written instruments, so as to uphold them.

Digitized by


March, 1895.] Wilson v. Cahbico. 219

if possible^ and carry into eflfect the intention of the parties/*
Applying the reason and principle, as laid down by the authori-
ties cited, and guided by the rule of construction, that the clause
in controversy must be construed most favorable to the grantee,
we cannot hold that the grantors intended that this obligation
was to be null and void; but we are constrained to decide that it
conveyed a present ^^^ interest in the real estate to the grantee,
the full enjoyment of which was, by the subsequent clause, in-
tended to be postponed until after the death of both of the
grantors. By so holding we carry into eflfect the intention of
the parties, and we fail to recognize wherein this construction
works an injury or injustice to anyone. This interpretation,
we think, will simply carry out the intention of Carrico and his
wife, and give protection to the rights of a purchaser acquired
on the faith of their deed and their acts. The conclusion we
have reached renders it unnecessary to consider the repugnancy,
if any, existing between the grant and the exception. However,
when such does exist, it is well settled that the latter is void: See
cases cited in Gates v. Gates, 135 Ind. 272.

It therefore follows that the court erred in sustaining the de-
murrer to the complaint.

Judgment reversed at the cost of the appellee, with instruc-
tion to the lower court to overrule the demurrer to the complaint
and to proceed in accordance with this opinion.

Conveyasoe to Take Effect After Qrantor'e Death.
Whether Deed or Will. — Many instruments are drawn in the form
of absolute deeds which contain a provision that they are not to
take effect until after the death of the grantor. The question then
arises whether such instrument is to be considered and oonstmed as a
conveyance, or is to be deemed of a testamentary character only. The
l^enerai rule is that, if the deed passes a present interest to the grantee.
It is operative as a deed of conveyance, and such contingent provision
does not convert it into a will. In determining whether such an in-
strument is a deed or a will, the main question is, Did the maker intend
to convey any estate or interest whatever to vest before his death and
upon the execution of the paper, or, on the other hand, did he intend
that ail the interest and estate should take eflect only after his death?
If the former, it is a deed; if the latter, it is a will: Wall v. Wall, 30
Miss. 91; 64 Am. Dec. 147. In order to constitute it a deed it must
take effect in prsesenti, but this may occur without the present enjoy-
ment or possession passing either in fact or in right. If a vested riglit
• to the present or future enjoyment passes, it is sufficient as a deed, but
the right thus passing must be to some si>ecific thing then owned by
the person executing the conveyance, and to the grantee designated in
the instrument. An instrument possessing these requisites, and want-
ing nothing in form, substance, or legal ceremony to give it effect, is a
deed, and not a testamentary |iaper: Swails v. Bnshart. 2 Head, 560;
McDaniel v. Johns, 45 Miss. 832; Mattocks v. Brown, 103 Pa. 8t. 16;
Watson V. Watson, 22 Ga. 460; Meek v. Holr<m, 22 Ga. 491; Bunn v.
Bunn, 22 Ga. 472; Moye v. Kittrell, 1^9 Ga. 077; Johnson v. Hines, 31

Digitized by


220 .Wilson v. Cabrioo. [Indiana,

Ga. 720; White y. Hopkins, 80 Ga. 154; Dismokes t. Parrott, 66 Ga.
613; WorlejT v. Daniel, 90 Ga. 650; Gorham v. Daniela, 23 Vt. 600;
Blanchard v. Morey, 56 Vt. 170; Jenkins v. Adx50ck, 6 Tex. Civ. App.
466; Dreisbach v. Serf ass, 126 Pa. St. 32; Shackelton v. Sebree, 86 III.
616; Mitchell v. Mitchell, 108 N. 0. 542; Wyman v. Brown, 50Me.l39.

The above authorities involve the conveyance of real estate, but the
Bame rule prevails when personal property is the subject-matter of the
deed: Wallis v. Ward, 2 Swan, 647; Williams y. Sullivan, 10 Rich. £q.
217; Watson v. Watson, 22 Ga. 460; Meek v. Holton, 22 Ga. 491.

An instrument in form a deed, which conveys to the grantee an in-
terest in prsesenti, though to be enjoyed in possession in futuro, is oper-
ative as a deed, and not as a will, and the interest of the grantee cannot
be defeated by the grantor after the execution of the deed, even though
it is voluntary: McDaniels v. Johns, 45 Miss. 632; Mattocks v. hrowii,
103 Pa. St. 16. Thus a voluntary instrument purporting on its face to
be a deed, by which land and slaves are conveyed oy terms in the pres-
ent tense, reserving a power of revocation to the maker, to be exercised
in a certain specific mode, at any time during his life, and also declar-
ing that it should not take effect as to the delivery of the property until
alter the maker's death, vests in the grantee an estate in prsesenti to be
enjoyed in futuro, and is, therefore, a deed, and not a will: Wall v.
Wall, 30 Miss. 91; 64 Am. Dec. 147. A deed containing words of pres-
ent grant, followed by a clause providing that the grantee is "to have, to
hold after my death, the aforesaid property," is a clear grant in prse-
senti, and the words "after my death," in the habendum clause are to
be construed as postponing the possession and enjoyment by the grantee
until ttie grantor's death, or as a reservation of an estate for life, but
not as an attempt to make a testamentary disposition of the property:
Johnson v. Hines, 31 Ga. 720. A clause in an instrument containing
all the terms and provisions of a deed, that the grantor and his wife
are to have the use, benefit, and control of tbe land conveyed, for and
during their natural lives, does not render the instrument testamen-
tary: Bass V. Bass, 52 Ga. 531. An instrument in form a deed, by
which the grantor undertakes to dispose of all his lands, and providing
that "this conveyance to be put to record, but not to take effect so as to
give possession until after my death," is a deed, and not a will: Rawl-
mgs V. McRoberts, 95 Ky. 346. A deed containing an absolute grant,
followed by a condition that "the grantor hereby ezpresslv excepts ana
reserves from this grant all the estate in said lands, and the use and
occupation, rents, and proceeds thereof unto himself during his natural
life," is a conveyance, and not a will, and must be construed as con-
veying a present interest, the enjoyment of which is postponed until
the grantor's death: Gates v. Gates, 135 Ind. 272. A conveyance of
grant made upon the express condition that the grantor should have
and retain the entire use and control of the granted premises so long as
they or either of them should live, is valid as a deed to take effect upon
their death : Chandler v. Chandler, 55 Cal. 267. A warranty deed
containing a clause that " the condition of this deed is such that I
hereby reserve all my ri^ht, title, and interest in said pieces of land
during mv natural life," is not void as containing a reservation repug-
nant to the grant, and is a valid reservation of a life estate out of the
land granted, and not of a testamentary character: Graves v. Atwood,
52 Conn. 512; 52 Am. Dec. 610. A deed to take effect "after my de-
cease and not before," does not make the deed testamentary in char-
acter, but operates merely to show that the grantee's use and enjoyment
of the land does not begin under the deed until after the grantor's
death : Owen v. Williams, 114 Ind. 179. If a deed contains a condition
that it is not to take effect and operate as a conveyance until the grant-
or's death, it can be upheld as a feofment to commence in futuro, giv-
ing the estate in fee simple to the grantee on the happeniniz of the con-
tingency named: Abbott v. Holway, 72 Me. 298. A deed conveying
land in fee simple, but containing a reservation of "all the right, title,
and interest in and unto the abuve-named land and buildings for and

Digitized by


March, 1895.] Wilson v. Carrico. 221

daring mypatural life/' is valid, and convey a a present interest to the
grantee: Webster ▼. Webster, 33 N. H. 18; 66 Am. Dec. 706. A deed
executed in expectation of death, the grantor adopting that mode of
distribution of his property rather than by will, there being no unlaw-
ful purpose in contemplation, is to be treated as valid as a disposition
of the property by deed, and not by will : Brown v. Atwater, 25 Minn.

Instrument, Whkn a Will.— The fact that a written instrument
is in the form of a deed is always persuasive that a deed, and not a
will, is intended, but it is not couclusive, and if it appears that no in*
terest was intended to Vf st until after the death of the person named
as grantor, the writing roust, notwithstanding its form, be held to be
a will and not a deed. In such instruments words expressly limited to
take effect only after the death of the grantor are necessarily revocable
words, and "the doctrine of the cases is, that whatever the form of the
instrument, if it vusts no present interest, but only appoints what is
to be done after the death of ttie maker, it is a testamentary instru-
ment. It signifies nothing that the parties meant to make a deed in-
stead of a will. If they have used language which the law holds to be
testamentary, their intention is to be gathered from the legal import
ot the words they have employed": Turner v. Scott, 51 Pa. St. 126;
Frederick's Appeal, 52 Pa. St. 338; 91 Am. Dec. 159; Rowlings v. Mc-
Roberts, 95 Kv. 346; Millican v. Millican, 24 Tex. 427; Shepherd v.
Nabors, 6 Ala. 631; Dunne v. Bank of Mobile, 2 Ala. 152; Babb v.
Harrison, 9 Rich. £q. Ill ; 70 Am. Dec. 203. An instrument in form a
deed must, in order to take effect as such, pass some present interest
in the property. Hence, an instrument in writing which is not to take
effect until the death of the maker, and contains a direction that the
beneficiary pay the maker'u debts and have only the remaining prop-
erty, is testamentary in its character, though it be in the form of a deed
acknowledged as such, and styled a deed by its own langungu: Cun-
ningham V. Davis, 62 Miss. 366. An instrument which, though in the
form of a deed, duly acknowledged and recorded, conveys no property of
whicli the grantor is then the owner, but only such property as lie mav
die seised and possessed of, is testamentary in character and not a deed,
as it fails to pass any uresent interest : Watkins v. Dean, 10 Yerg. 320;
31 Am. Dec. 583; Hall v. Bragg, 28 Ga. 330: Gage v. Gage, 12 N. H.
371; Brewer v. Baxter, 41 Ga. 212; 5 Am. Rep. 530. A conveyance
containing words purporting; to convey real estate in the usual form,
but also containing a condition that it is '*to commence after the death
of boih of said grantors," and "it is hereby understood and agreed be-
tween the grantors and the grantee that the grantee shall have no in-
terest in the said premises so long as the grantors, or either of them,
•hall live," is testamentary in character, and not a deed, as it fails to
convey any present interest in an estate to be enjoyed at a future day.
Such instrument can be revoked by the grantors at their option,
although a valuable consideration may have been paid therefor: Leaver
V. Gauss, 62 Iowa, 314. An instrument with general warrantv lor a
tract of land in fee, in consideration of love and affection, performing
certain services and maintaining the grantor's wife if she survives him,
reserving the land tu the grantor for his life, the ''conveyance in no way
to take effect until after his decease," is testamentary and revocable:
Turner v. Scott, 51 Fa. St. 126. An instrument in the form of a deed,
containing a condition in favor of the grantor that he reserves ''all the
within-named estate both real and personal, during his natural life,"
is testamentary and inoperative as a deed if the intention of the maker
is that it shall take effect only on his death : Carlton v. Cameron, 54
Tex. 72; 38 Am. Rep. 620. An instrument purporting to convey land,
hut providing that it shall remain the property of the grantor during
his lifetime, and go to the grantee on the death of the grantor, provided
the former survives the latter, is a mere devise revocable at will, and
passea no title, and the grantor's promise to pay the grantee to recon-

Digitized by


222 Walke'u v. Jameson. [Indiana^

▼ev the land is without any consideration: Bigley v. Sonvey, 45 Mich.
870. An instrament in the form of a deed containing a condition apoa
the performanoe of which the property is to revert to the grantor, and,
after his death, be divided share and share alike between his two grand-
sons, is a testamentary paper, and not a deed: Mallery v. Dud lev, 4 Ga.
62. An instrument purporting to be a deed acknowledged and delivered
on the date of its execution, conveying by present worJs ol gift in con-
sideration of love and affection to the maker's children' certain prop-
erty at his death, but reserving the right of ownership until tiiat time,,
and declaring that at that time "this deed shall take effect," is a win,
and not a deed: Walker v. Jones, 23 Ala. 448. An instrument in form a
deed, purporting to convey certain property therein named, in which
It is declared by the maker that she "reserves to herdelf the use of all
of the property during her natural life, then to go to tne grantees, and
from thenceforth to be their propertry absolutely without any manner
of condition," is a testamentary p.iper, and not a deed: Symmes v.
Arnold, 10 Ga. 506. A writing in the form of a deed executed by hus-
band and wife, purporting to convey to their children by the worda
"have given and granted, and by these presents do give and grant, all
the real and personal property composing the wife's separate estate,"
" under the following restrictions, reservations, and conditionss, " reserv-
ing to the wife a life estate in all the propertv, and further providing
"that the foregoing gift is to take effect" at ner death, that her hus-
band, as her executor, "eluiU k^ep the property togeiht^r for two yeara
for the benefit of the children until all of the estate can be wound up,
when the said gifts are to be distributed," is a will, and not a deed:
Mosser v. Mosser, 32 Ala. 551. The subject of the validity of deeds to
take effect after the death of the grantor, if not delivered in his life-
time, is treated at length in notes to Jones v. Jones, 16 Am. Dec. 4Sr4!i^
and Wellborn t. Weaver, 63 Am. Dec. 243-246.

Walker v. Jameson.

[140 Indiana, WL]

Under a statute authorizing it, a municipal ordinance requiring all
householders in the city to place all garbage, not destroyed by them
on the premises, in proper receptacles convenient for removal by a pub-
lic contractor, at the expense of the householder, and forbiddins any
person other than the contractor to interfere with or remove such gar*
bage, is valid as a health and sanitary regulation.

COST OF REMOVAL— ASSESSMENT —A statute authoriaing a city
to provide for the removal of all garbage or other offal therefrom hj
contract or otherwise, empowers it to tix by ordinance the price of
such removal by a public contractor, and the price or cost of removal
thus fixed, is not an assessment upon the premises from which the-
garbage is removed.

ASSESSMENT— DEFINITION. — An assessment is a charge laid
upon individual property for the reason that the property upon which
the burden is imposed receives a special b'^nefit different from the-
general one enjoyed by the owner m common with others as a citi-
zen. An assessment is levied only upon the property benefited, and
is uniformly restricted to the means for pa3ring local burdens arising
by reason of the wants of small communities.

AND SANITARY REGULATION.— It is within the general power

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