Boon v. Castle

upon or against the same unpaid, and also subject to all the debts and funeral expenses of said grantor, George Boon, the payment of all of which debts and funeral expenses are hereby made a charge and lien upon all of the foregoing real estate.”

The first question which presents itself in this case is the effect of the language above quoted. The plaintiffs claim that it is an attempted testamentary disposition of property, and, as it is not executed as such, as required by law, is void; while the defendants say that said language is repugnant to the grant, and, being a part of the habendum of the deed, must necessarily yield to the positive granting clause preceding it, or, at most, if a construction is to be placed thereon in favor of the deceased or his estate, it can be but to the extent of a reservation, and that the instrument must be construed to be an absolute transfer of the property described therein to the grantee, with a reservation to the grantor to hold and use during his natural life. Defendants therefore claim that it was the intention of the parties to reserve to the grantor the life use of the premises, and that the instrument, giving it the view most favorable to the grantor, or his estate, does no more than that.

I think the language is not ambiguous and speaks exactly the intention of the parties to the instrument. Had it been the agreement that there was to be a life estate reserved to the party of the first part, the draftsman could easily have said so in a very few words. There was evidently an intention of the parties, well understood by him, to do something different from that, and to reserve more than a life use to the grantor. Words were used, it seems to me, specially apt for that purpose. It is stated in the instrument that it is made and delivered upon the express understanding and agreement that no title to or interest in any of the property shall pass from the grantor until his death, and he shall have the exclusive control until his death, and that upon the death of the grantor, the grantee shall become, under the conveyance, the absolute owner in fee simple of the property, which he would then take subject to any and all incumbrances and taxes that may be then upon or against the property, and also subject to the debts and funeral expenses of the grantor, which were made a lien upon the real estate.

Unequivocal language was used to express the intention of the grantor, and to state when the property was to pass from his control and ownership to the grantee. It is impossible to obtain any language from the deed which will justify the court in construing its provisions into a reservation to the grantor for a. life use only of the premises. It is not within the power of the court to give to the grantee a greater estate than is clearly expressed in the language of the deed. The interest and title which the grantee could take was not in praesenti. The grantor could have conveyed and reserved a life use to •himself. The title then would have vested in the grantee subject to the life estate. This clearly was not the intention, nor does the instrument create such an ownership, because it expressly provides “that no title to or interest shall pass * * * until the death of the grantor.” It was “made and delivered” upon that express agreement, and hence

An absolute conveyance could have been executed and placed in escrow, to be delivered at Boon’s death, or on the happening of a future event, at which time the subsequent delivery would revert back to the delivery in escrow. This was not done, and was not intended, because the grantor evidently desired to absolutely retain the property to himself, and to provide, further, that any mortgages which might be on the property at the time of his death should be a lien and charge thereon. Any mortgages which were on at the date .of' the execution of the instrument were already liens thereon, and would continue as such; and the reference to the mortgages which might be upon the premises at the date of his death was absolutely unnecessary, unless he understood that he had the right to mortgage during his life. There was no estate reserved or created to sustain a future estate. Boon attempted to convey the fee, to take effect at his death, and to retain to himself the absolute ownership of the property during his life. I have come to the conclusion, therefore, that the defendants’ contention that there was a reservation of but a life estate to Boon must fail.

The next proposition is whether the language above given is repugnant to the grant and is inoperative. I think the position of the defendants in that regard cannot prevail. The language in question does not bring this case within the scope of the authorities cited by the defendants’ counsel. It is true there is in the instrument what may be considered an absolute conveyance of the property before the clause in question is reached; but I think the instrument as a whole should be taken and construed together. Certainly in that way we. can arrive at the true intention of the parties. The grantor uses language which, if undisturbed or qualified, would have conveyed the fee immediately upon the execution of the instrument to Castle; but, following that conveyance, he says in clear and explicit language that the instrument is made and delivered upon the express agreement that no title or interest is to pass to the grantee until the death of the grantor, and uses other language, above referred to, which fixes it definitely that no title or interest is to vest until the grantor’s death. I think this language is not repugnant to the grant in the sense urged by the counsel; but it fixes the time when the transfer is to take effect. The language is no more repugnant to the grant than the reservation .of a life estate would be.

In such cases the deed usually contains language of an absolute grant, which may be followed by a few words, in substance, that the first party reserves the use of the premises during his natural life, which, undoubtedly, are not repugnant to the grant and effectually reserve to the grantor a life use of the premises. In this case positive and explicit language was used to reserve the whole estate and title absolutely to the grantor until death, and to withhold all title and interest from the grantee until that event. I am of the opinion, therefore, that Boon did not convey all this considerable property absolutely to Castle, which he certainly did if the clause in question is adjudged repugnant to the grant. In my view of the case, I cannot make that disposition of it.

Although the testator, through some want of information or for other reasons, prepare his will similar to a deed, as if he seal it, which is not essential to a will, or if it in other particulars resemble a deed, it is not in any particular of the same nature as a deed, and will have no validity or operation as a deed. 1. Jarman, Wills (5th Am. Ed.) 35. The distinguishing feature of a will is that it is not to take effect except upon the death of the testator. If the instrument is not to have any operation until after death, then it. is a will, notwithstanding that it may have been executed in pursuance of a previous promise or obligation upon its face. Matter of Diez, 50 N. Y. 88 ; Matter of Emmons, 110 App. Div. 701 , 96 N. Y. Supp. 506 . In respect to dispositions of property which are not to have any effect except upon -the death of the owner and are' revocable, the party making such dispositions is confined to a will. Sullivan v. Sullivan, 161 N. Y. 554 , 558, 56 N. E. 116 ; Gilman v. McArdle, 99 N. Y. 451 , 461, 2 N. E. 464 , 52 Am. Rep. 41 .

In the case at bar the operation of the instrument or deed was postponed until after the death of the grantor. No interest vested under it in the grantee. The grantor did not part with control over the property. The delivery did not pass a present conveyance or interest or' title in the land. No effect was to be given to the transaction until after the death of the grantor. There was no value parted with by the grantee, or promise made on his part, in consideration of the grantor’s executing the deed. The transaction had- many of the circumstances and features usually surrounding the execution of a will. There was not a gift in this transaction, either inter vivos or causa mortis. To constitute a valid gift of either kind there must be a renunciation by the donor and an acquisition by the donee of all interest in and title to the subject of the gift. Curtiss v. Barrus, 38 Hun, 165 ; Young v. Young, 80 N. Y. 422 , 36 Am. Rep. 634 ; Kirk v. McCusker, 3 Misc. Rep. 278 , 22 N. Y. Supp. 780 .

I have come to the conclusion that the deed in question was executed for the purpose of taking the place of a will, and is an attempt at testamentary' disposition in that way. It is therefore inop

Judgment accordingly.