must treat it simply as a gift to the children or child living at the date of the will, and at the date of the death.

Now the authorities really seem to me to govern this case. I take one of the earliest cases-I think it is the case of Sleech v. Thorington, 2 Ves. Sr. 560. There a capital sum was given to "the two servants that shall live with me at the time of my death" in equal shares. The testatrix had three servants, and it was held that the legacy was divisible in equal thirds. In that case it is quite true that no extra burden was thrown upon the residuary legatee, and it is also quite true that in the absence of extrinsic evidence, which scarcely could have been admissible in a case like that, the whole legacy might have been void for uncertainty but for the application of this rule. But Sir Thomas Clarke there held, following a prior decision of, I think, Lord Hardwicke, that when you found that the dominant idea was "servants living with me at the date of my death," you disregard the number two and you take the number three. A problem was put to Mr. Upjohn in the course of the argument: What would have been the result there if the gift had been "to my coachman my footman and my two domestic servants living with me at the date of my death," and supposing there had been three instead of two? I cannot bring myself to doubt that precisely the same result must have followed, and that the reasoning of Sir Thomas Clarke's decision in no way depends upon the fact that the legacy was given solely to the domestic servants living at the death, but the consequence must be exactly the same if they had been colegatees with other persons named as "my coachman and my groom."

I do not propose to go through the subsequent authorities. It is scarcely necessary to refer to Garvey v. Hibbert, 19 Ves. 125, although that was a very strong case and a very leading case. That was a case where a legacy of £600 was given to each of the three children of Dr. Duval. Dr. Duval had four, and it was held that the fourth was entitled also to a legacy of £600, the result being, of course, that £2,400 was taken out of the residuary estate, instead of only £1,800. I am content to take the principle, for it is a principle, laid down by the courts in the last two centuries, from the judgment of the Court of Appeal in In re Stephenson, [1897] 1 Ch. 75, which, somewhat singularly, Mr. Upjohn seems to regard as an authority in his favor. I do not know where I could find more accurately or more aptly stated the nature and the limitation of the rule. I take first of all the passage from the judgment of Lord Russell of Killowen, [1897] 1 Ch. 81: "The proposition must be limited to this: That, where the court, as a matter of construction, arrives at the conclusion that a particular class of persons"-again not using the word "class" in a technical sense, but a particular description of persons-"is to be benefited according to the intention of the testator, if there has been an inaccurate enumeration of the persons composing that class, the court will reject the COST.WILLS-6

enumeration;" and Lindley, L. J., in the same case, [1897] 1 Ch. 83, says: "If the court comes to the conclusion, from a study of the will, that the testator's real intention was to benefit the whole of a class, the court should not and will not defeat that intention because the testator has made a mistake in the number he has attributed to that class. The court rejects an inaccurate enumeration." That is what the learned judge has done in the present case; that is what, if it be necessary to consider the cases at all on this will, I propose to do here. I think for the reasons I have given the decision of the learned judge was perfectly right, and that the residue is not divisible in elevenths, but is divisible in sixths.

1

CHAPTER IV

WILLS AND TESTAMENTS DISTINGUISHED FROM CERTAIN OTHER DISPOSITIONS OF PROPERTY

SECTION 1.—FROM DEEDS

SHARP v. HALL.

(Supreme Court of Alabama, 1889. 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28.)

This was a proceeding to probate the will of Ann E. Hornsby, deceased. The instrument was signed by Mrs. Hornsby, under seal, was attested by J. J. Davis as a subscribing witness, and also by J. T. Kirk on an acknowledgment of her signature made in his presence. on the 23d of February, 1886, and was in the following words:

"The State of Alabama, Colbert County. These presents show that, in consideration of the love and affection I have to Julia M. Hall, I do here now give and deliver to her the following property, to wit, a certain lot, or part of lot, situated in the city of Tuscambia, known as part of lot No. 317, according to the plat of said city," describing it by metes and bounds, "together with all the tenements and hereditaments thereunto appertaining, all of which I now hold and possess. But I do hereby reserve the use, control and consumption of the same to myself, for and during my natural life; and this is done, in part, to do away with all need or necessity of taking out letters of administration after my death. Test my hand and seal, this day of February, 1886."

The defendants requested the following charge in writing, and excepted to the court's refusal to give the same: "(6) The fact, if it be a fact, that Mrs. Hornsby did not dispose of all the property, must be considered with the other evidence by the jury to ascertain whether or not the instrument was intended to be a will." The other material facts appear in the opinion. There was a trial by jury, and a verdict for the proponent, followed by a judgment admitting the will to probate, and the contestants appeal.

STONE, C. J. There are few, if any, questions less clearly defined in the law books than an intelligible, uniform test by which to determine when a given paper is a deed, and when it is a will. Deeds, once

1 The statement of facts is abbreviated, and part only of the opinion is

executed, are irrevocable, unless such power is reserved in the instrument. Wills are always revocable so long as the testator lives and retains testamentary capacity. Deeds take effect by delivery, and are operative and binding during the life of the grantor. Wills are ambulatory during the life of the testator, and have no effect until his death. Out of this has grown one of the tests of testamentary purpose, namely, that its operation shall be posthumous. If this distinction were carried into uniform, complete effect, and if it were invariably ruled that instruments which confer no actual use, possession, enjoyment, or usufruct on the donee or grantee during the life of the maker are always wills, and never deeds, this would seem to be a simple rule, and easy of application. The corollary would also appear to result naturally and necessarily that if the instrument, during the life-time of the maker, secured to the grantee any actual use, possession, enjoyment, or usufruct of the property, this would stamp it irrefutably as a deed. The authorities. however, will not permit us to declare such inflexible rule. A declaration of trust by which the grantor stipulates to hold in trust for himself during life, with remainder to a donee, or succession of donees, certainly secures no use, enjoyment, or usufruct to the remainder-man during the grantor's life. Yet it is a deed, and not a will. 1 Bigelow, Jarm. Wills, 17, and notes; Gillham v. Mustin, 42 Ala. 365. Can a tangible distinction be drawn between such case and a direct conveyance, in form a deed, by which A. conveys to B., to take effect at the death of A.? The human mind is not content with a distinction that rests on no substantial difference. Conveyances reserving a life-estate to the grantor have been upheld as deeds. 2 Devl. Deeds, & 983; Robinson v. Schly, 6 Ga. 515; Elmore v. Mustin, 28 Ala. 309; Hall v. Burkham, 59 Ala. 349. In Daniel v. Hill, 52 Ala. 430, 436, this court said: "A deed may be so framed that the grantor reserves to himself the use and possession during his life, and on his death creates a remainder in fee in a stranger."

Almost every conceivable form of conveyance, obligation, or writing, by which men attempt to convey, bind, or declare the legal status of property, have, even in courts of the highest character, been adjudged. to be wills. The form of the instrument stands for but little. Whenever the paper contemplates posthumous operation, the inquiry is, what was intended? 1 Bigelow, Jarm. Wills, 20, 25; Habergham v. Vincent, 2 Ves. Jr. 204; Jordan v. Jordan, 65 Ala. 301; Daniel v. Hill, 52 Ala. 430; Shepherd v. Nabors, 6 Ala. 631; Kinnebrew v. Kinnebrew, 35 Ala. 638. The intention of the maker is the controlling in

2 "It appears from the English authorities prior to the enactment of the English Wills Act of 1837 that there was judicial sanction for the probating of almost every kind of document whereby property could be disposed of or affected, among which we may enumerate deeds, contracts, promissory notes, bills of exchange, letters and diary entries." Gillett, C. J., in Heaston v. Krieg, 167 Ind. 101, 110, 77 N. E. 805, 807, 119 Am. St. Rep. 475 (1906). On the various kinds of instruments held to be wills see 89 Am. St. Rep. 489, note, 10 L. R. A. 95, note.

quiry, and that intention is to be gathered primarily from the language of the instrument itself. Dunn v. Bank, 2 Ala. 152. The intention cannot be proved by a witness speaking directly thereto. But this does not, in cases of inapt phraseology,—such as the present instrument discloses, preclude proof of instructions given to the draughtsman, in reference to the nature of the paper he was expected to prepare. In Green v. Proude, 1 Mod. 117, 3 Keb. 310, the paper had striking characteristics of a deed; but the court said: "Here being directions given to make a will, and a person sent for to that end and purpose, this is a good will." Speaking of this case, Jarman (1 Bigelow's Ed. p. 19) says: "The court seems to have been influenced by the circumstances that the person who prepared it was instructed to make a will."

In Wareham v. Sellers, 9 Gill. & J. [Md.] 98, the court decided that testimony should have been received of "conversations of the deceased, made at the time of executing the said paper, and from the other circumstances, that the said P. S. made and executed the said paper as and for his last will and testament, and intended it as such." In this case the controversy was whether the paper was a deed or a will. To the same effect is Witherspoon v. Witherspoon, 2 McCord (S. C.) 520.

So all the attending circumstances may be put in proof as aids in determining whether the maker intended the paper should operate as a deed or a will, whenever it is so framed as to postpone actual enjoyment under it until the death of the maker. Gillham v. Mustin, 42 Ala. 365; Daniel v. Hill, 52 Ala. 430; Campbell v. Gilbert, 57 Ala. 569; Jordan v Jordan, 65 Ala. 301; Rice v. Rice, 68 Ala. 216; Lee v. Shivers, 70 Ala. 288; 1 Bigelow, Jarm. Wills, 25; Gage v. Gage, 12 N. H. 371; Mealing v. Pace, 14 Ga. 596, 630; Symmes v. Arnold, 10 Ga. 506; Jackson v. Jackson, 6 Dana (Ky.) 257.

Another pertinent inquiry: If a paper cannot have operation as a deed, but may as a will, then in doubtful cases we should pronounce it a will, utres magis valeat. Bigelow, Jarm. Wills, 21, 22, 24, 25; Attorney General v. Jones, 3 Price, 379; Gage v. Gage, 12 N. H. 371; Symmes v. Arnold, 10 Ga. 506.

The instrument sought to be established as a will is in form a nondescript. It clearly shows on its face that the donee or grantee was to have no actual enjoyment of the property-no usufruct-during the life of the maker. Its language is: "I do hereby reserve the use, control, and consumption of the same to myself for and during my natural life." We hold that the paper, on its face, falls within the indeterminate class, which, according to circumstances, may be pronounced a deed or a will. We also hold that, on the trial of the issue, it was competent to prove that the maker was without lineal or other very near relatives; that she was attached to the donee, who was a member of her household; that she sent for the draughtsman of the paper, and employed him to write her will, and that, in pursuance of such employment, he wrote the paper in controversy, and that she signed it with