Eli Horn & Jeremiah Savell, Executors of Joab Horn, deceased, vs. David Gartman, 1 Fla. 63

Baltzell, Justice: The right of recovery of Gartman, the plaintiff, in the Court below, depends upon the legal effect and construction of an instrument of writing, in these words : TERRITORY 03? FLORIDA, > Walton County. \ Know all men by these presents, that I, Joab Horn, of the Territory and county aforesaid, being in sound mind and perfect memory, are mindful this day to make a distribution of my property to my different children, to wit: David Gartman ; that for the natural love and affection which I bear towards him, and my deceased daughter, Drucilla, and the heirs of her body.

In the presence of witnesses, do this day bequeath, covenant, and positively deed, a certain portion of my property, to wit: .a negro man, named Will, and wife Milly, and seven cows and calves ; to which species of property, I, the said Joab Horn, have at this time in possession, and owner of, clear of any enthrallment; and is to remain undivided, and in my possession, so long as I live — and after my death, immediately the stipulated properly in this deed composed, to be bona fide the property of David Gartman, with its increase, to have and to hold for-ever and forever.

In witness whereunto I have set my hand and seal, this 29th of June, 1829. 1iis JOAB X HORN, [seal] marie. And in the presents of, Jeeemiah Saveli., Reuben N. Baeeow, Richaed J. Compton. Appellants, the executors of Horn, contend that this instrument confers no right: 1st. Because there was no delivery of the property, nor a sufficient delivery in law, of the deed. 2d. Because a remainder is created after a life estate, which is not permitted by law, except in cases of trust, and by will. 3d. Because the instrument is testamentary, and was revoked by the will of Joab Horn, made afterwards.

A delivery of the property was not made — indeed, was inconsistent with the terms of the instrument. The inquiry then arises, does a deed dispense with delivery, and is it sufficient to convey the property, without a transfer of the possession. The law, in this respect, seems to be well settled — it being held, “ that in order to transfer property by gift, there must be either a deed, or instrument of gift, or there must be an actual delivery of the thing to the donee.” 2 Barn. & Ald. 552. Adams vs. Hays, 2 Iredell, R. 366. 2 Kent’s Com. 438. 2 John, 52. 2 Leigh, 340. 2 Black, 441.

If valid as a deed, a second objection is, that there was no delivery of it. The instructions asked by defendant, shew that the deed was “ presented by the plaintiff, to the recording officer, for registration,” and was recorded. Consequently, it- must have been in plaintiff’s possession. This is sufficient evidence of delivery. Gilbert vs. Dunns lessee, 14 Peters, 322. Nor does the fact of its being produced at the trial, by the defendants, under notice, alter the case. Brown vs. Winthrop, 1 John. Chy. 329—256. Ingraham vs. Porter, 4 McCord, 198. Dawson vs. Dawson, Rice’s Eq. R. 257.

The next point is, that a remainder in personal property cannot be created after a life estate, according to law. “ By the ancient common law, personal estate was little regarded, “ and thought to be subject to no modifications or limitations what- “ ever. A gift or grant of a personal thing, for a day, or even for “ an hour, was supposed to be equivalent to a gift, or grant of it “forever.” Shep.

Touch. 116. “Butin succeeding ages, when “ commerce and civilization had given additional importance to per- “ sonal estate, new rules were introduced, to make it answer better “ the exigencies of society; and it was at length placed, with respect “ to the limitations of which it was susceptible, more upon an equality “ with real estate.

In England, the only difference is, that real es- “ tate may be entailed, and personal cannot; and in this country, “ where estates tail are abolished, the rule is exactly the same with “ respect to real and personal estate.” This was the case of a gift of slaves, to take effect after the death of grantor and wife, reserving a life estate — presenting the very point at issue in this case. Boyle Ch. Just. in Banks vs. Marksbury, 3 Littell R. 276. In Smith vs.

Bell, although it was the case of a will, yet the remarks of Chief Justice Marshall are pertinent to the present case. “ The rule that a remainder may be limited, after a life estate in “ personal property, is as well settled as any other principle of our “ law. The attempt to create such limitation is not opposed by the “ policy' of the law, or any of its rules.” 6 Peters R. 78. In North Carolina, the modern rule was first adopted. 1 Haywood, 234. 1 Murphy, 466.

Afterwards the old common law rule was declared to be in force, the Judges expressing their regret in the cases decided by them, “ that a disposition of property, so just and simple in itself, could not be sustained.” Foscue vs.

Foscue, 3 Hawks R. 544. “I think it a hard case,” says Judge Hall, “ that this species of property cannot be conveyed, in a mode apparently so simple, when the reason upon which the rule was originally founded, is no more; and cannot but regret, that decisions upon the subject had not been more comformable to the nature of this kind of property, and the convenience of those who possessed it. Graham vs. Graham, 2 Hawks, 322. In 1823, the Legislature altered the law as thus declared. In S.

Carolina, the Chancellor, in a case affirmed by the Court of Appeals, in 1839, says: “ I shall not, after the decisions which have been made in this State, trouble myself by inquiring, whether a personal vested interest, to be enjoyed in future, can be directly conveyed by deed, either as to realty or personalty ; that is a settled question.” Dawson vs. Dawson, Rice’s Eq. R. 261. In Carnes and wife vs. Marley, the deed was: “ I give to H.

Jones, to hold to him, and his executors forever; provided, that I resume the possession, use and labor of said slaves, for and during my natural life.” The cause was before the Court of Appeals of Tennessee, in 1827, when the Court decided the gift invalid. The opinion, however, was not satisfactory, and a re-argument was granted. The case was again argued in 1830, and held under advisement until August, 1831. The Court then say: ‘‘Nothing is better settled than that, an interest in remainder, after an interest for life expires, may be limited in a deed for slaves. 2 Yerger,.584.

But it is needless to multiply cases, when authority is so abundant, and the question has been so ably decided. 2 Kent Com. 352. Johnson vs. Mitchell, 1 Humphrey, 173. 2 Black, 398. 7 Harris & Johnson, 257—272. 1 Henry Black, 535. 1 Murphy, 466. The case of Thompson vs. Thompson, &c., has been cited as asserting a contrary doctrine. That was the case of an instrument not under seal, so that the point was not before the Court for decision. 2 How. Miss. R. 737. The case in 12 New Hamp. R. is also relied on by appellants.

It was the case of a deed not delivered to grantees, and in which the party claiming the benefit of it, conceded that it could not avail him as a deed. The question before the Court seemed to be rather as to the effect of subsequent arrangements between the parties, in revoking the deed. 12 New Hamp. 872. We are of opinion then, that a remainder may be created in personal property, after a life estate, by deed. The third position is, that the instrument is testamentary in its character — a question of some novelty in our Courts, and of no little difficulty. If Mr.

Horn intended the instrument of 29th June, 1829, to operate as a deed, and it is not legally impossible that it shall so operate, his intention should prevail. “ It is a benign principle, well established,” says Chancellor Johnson, in a case confirmed by the Court of Errors and Appeals of South Carolina, “ that if a paper, wearing the “ form of a deed, cannot operate as a deed, it shall, (if that will not “ prevent its provisions,) be allowed as a testament.” Dawson vs. Dawson, Rice’s Eq. R. 260. 4 Dessausure, 617.

So in Williams on Executors: “ It is settled law, that if the paper contains a disposition of property, to be made after death, though meant as a deed of gift or bond, and not intended as a will, yet, if it cannot operate in the latter, it may nevertheless, in the former character.” 1 Williams ex’rs, 55. 2 Haggard, 247. “ If the instrument is to be consummated only by death, and not .operate during life ; especially if it is not upon a stamp — contains no valuable consideration — is not delivered out' of the custody of the maker, and comprises no beneficial dispositions, but such as are ulterior to the death of the donor; in short, if death is the event which is to give life and operation to the instrument, the Court will grant probate of it as a will.” Lovelass on Wills, 317. “ In respect to personal property, where there is a final intention proved and execution prevented by the act of God, the mere want of execution does not invalidate the instrument.

The disposition intended to be made, has the same legal effect in regard to personal property as if the instrrments had been actually signed and attested. It is also settled law, and several cases have been decided, that if the paper contains the disposition of the property to be made after death, though it were meant to operate as a settlement or a deed of gift, or a bond, though such paper were not intended to he a will, nor other testamentary instrument, hut an instrument of a different shape, yet, if it cannot operate in the latter, it may nevertheless operate in the former character.” 2 Haggard, 108-235.

These authorties are quoted without reference to the effect of our statute on the subject of Wills, which it is not necessary here to notice. The question then is, can this paper' be sustained, and operate as a good and valid deed ? The rules for the transfer of real estate have long since been established, and their meaning, force and effect declared and well understood. We are not aware that any such exist, or have been prescribed as to personal property. Undoubtedly less form is required to transfer personalty; such property ordinarily is passed by mere delivery.

The most that the authorities seem to require, is, that there be an actual gift — a design consummated — not the mere intention to give. In the case in 2 Yerger above cited, the words used were “ I give,” and the deed was held sufficient; In the case of Dawson vs.

Dawson, the deed was in these terms, “ this day I Richard Dawson, do give to my named children in my will, all my real estate, and all my personal property, and goods and chattels to my named children in my will, and I do acknowledge this day, to be theirn, and no others than those named in my will, and the use therein menshened.” This, also, was established as a valid deed, coupled with the will so as to make the instrument take effect in futuro. In Grangive vs.

Arden, the holder of a lottery ticket wrote the name of his daughter on it and put it in his desk, afterwards said “ the ticket was hersit did not belong to him, he had given it to his daughter, &c. “ These declarations, say the Court, recognize a gift as having been made. They afforded reasonable ground for a jury to infer that all the formality necessary to a valid gift had been complied with.” 10 John, 296. In the case of Johnson vs.

Mitchell the words were, “ I agree to throw into the hands of my sons-in-law.” The Court say, “ that these words however unusual and inartificial, want the force and efficacy of the words, give or transfer, &c., it would be difficult to maintain,” &c. 1 Humph. 173. “In the construction of deeds the Court will lean towards giving validity to a deed.

If it will not have an operation one way, it may operate in some other way.” Chase, Justice, 1 Harris &; John, 527. i( There is one general-principle that runs through the construction of deeds, that they are to be'construed most beneficially for the party to whom they are made ; and 2ndly, that a deed shall never be void, when the words may be applied to any intent to make it good.” 1 Plow. 159.

It is true, that the instrument under consideration has some of the terms peculiar to wills, “ being in sound mind and body, are mindful this day to make distribution, do bequeath;” yet the remainder of it has terms and provisions not contained in a will, but peculiar to a deed, showing an evident purpose to convey, a design executed, something done, in fact a deed. It does not commence as a will, but in the form of a bill of sale, “ know, all men by these presents;” it contains a consideration.

The words, “ do this day covenant,” import agreement, bargain and obligation; “ positively deed,” a certainty of transfer, a determination and purpose evidenced by use of a word in common acceptation, the most solemn and effectual, that is known among men. The reservation of a life estate especially would be absurd in a Will.

It is entitled as a “ deed of gift to David Gartman” by the person who drew it, and the probate by Compton, one of the witnesses, before Jeremiah Saveli a Justice of the Peace, who is also a witness and a defendant in the case, states, “ that the within deed was fairly assigned and delivered in his presents.” It is a striking feature of this case, that the object in construing this instrument a testament, is to effect its destruction, whereas the benign principle of construing deeds, &c., as wills, was designed for their preservation.

If the instrument were defective as a deed, the argument might be more effectual under the authorities to sustain it as a will. It has been insisted in this Court, that the deed was invalid, for want of a consideration, Gartman being only the son-in-law of Horn. This point was not presented in the Court below, from any thing appearing in the record ; and after a verdict we should be inclined to regard the case of plaintiff as made out except as to the objections raised by the bill of exceptions. The position however is not sustained by the authorities.

Voluntary agreements in favor of strangers are sustained, and “ with respect to chattel interests, an agreement under seal imports a consideration at law.” 3 Burrow, 670. 7 T. R. 350. Beard vs. Mitchell, 1 Vern, 42. 3 P. Wms. 222. Brown vs. Winthrop, 1 John ch. 336. 4 Com. Dig. 266, Fait B. 4 b. Delivery of this slave to Gartman would have been good by way of gift, and if a deed supplies the place of, and is a substitute for delivery, there would seem to be no objection to the want of a consideration.

One of the errors assigned is that the deposition of Jeremiah Saveli one of the defendants and executor of the will of Joab Horn, was offered in evidence, but rejected by the Court. The deposition is not a part of the record, nor does the bill of exceptions state what was designed to be proved by it, or the ground on which it was rejected. Under these circumstances, we cannot say whether the decision was right or wrong. We cannot take it for granted that the objection was because he was executor.

It may have been that his testimony was not materia], and this is in accordance with the ground invariably acted upon by Appellate Courts, that every fair intendment is to be made in support of the judgment below. The office of a- bill of exceptions is to give the facts on which the Courts decided, and it should give all the facts bearing upon the decision, so that the Appellate Court, may know fully and clearly every thing which influenced the decision of the Court, After a statement of these facts it may then be stated, that the Court instructed the jury, or decided in such manner upon the facts so stated.

Upon the whole case, we are of opinion that there is no error in the instructions given in the Court below, and that the judgment be affirmed. The original deed produced in this Court will be delivered to ap-pellee’s attorney, to be filed in the Court below.