of the plaintiffs and defendants to the sec-, C. W. and Mary A. Stewart. Ambrose Stew. tion of land under two wills, properly pro-art had no children. The minors Ida, Charles, bated, one by C. W. Stewart, the father and C. K., and Nannie are the children of S. grandfather of the parties, and one by Mary B. Stewart and grandchildren of C. W. and A. Stewart, the mother and grandmother of Mary A. Stewart. May, Jeb, Murrill, Amthe parties. The respective interests of the brose, and O. K. A. Stewart are the children parties, as set out in the petition under the of Charles Stewart. May and Jeb were of two wills, it is not deemed necessary to state age at the institution of the suit; the other at this time. The petition sought to have the three are minors, represented by the guardiinterests of the respective parties ascertain- an ad litem. C. W. Stewart and Mart A. ed and the land partitioned between them. Stewart executed a warranty deed in the The original petition of the plaintiff declared usual form, conveying the section of land in against S. B. Stewart alone in trespass to try question, No. 177, to S. B. Stewart. It was title, suing for their alleged interest in the acknowledged in due form, and dated Septemland. That petition was filed September 23, ber 24, 1906, reciting therein the considera1915. The amended original petition set out tion to be "one dollar cash, and the assumpmore fully their claim under the will, but tion and payment by said S. B. Stewart of no new parties were brought in by the amend- one-third of two promissory vendor's lien ment, which was filed June 15, 1916. J. B. notes, each for the sum of $1,493.00, with a Stewart answered by general denial and not credit of $493.00, due on November 1, 1905, guilty, and specially alleged that at the time respectively, payable to Wm. Brooks, Close, C. W. and Mary A. Stewart made their re- and Ed Ford North, for the premises hereinspective wills that they had no legal title to after described, and section No. 139 and 179, the land, but that the section belonged to in block B4, H. & G. N. Ry. Co., Armstrong S. B. Stewart. He also pleaded in bar the county, Texas, and other valuable considerathree and five year statutes of limitation tions"; retaining a vendor's lien until the against all parties. Mrs. Joe Stewart, the notes and interest were fully paid. This wife of S. B. Stewart, adopted the answer deed was filed for record the 20th day of of her husband. The minors, Ida Stewart, April, 1911. On October 15, A. D. 1906, Wm. Charles Stewart, Jr., Nannie Stewart, Mur- Brooks Close and Ed Ford North executed rill Stewart, Ambrose Stewart, Jr., and O. K. a release of the above vendor's lien notes, A. Stewart answered by guardian ad litem in which release it was recited they had conappointed by the trial court, and they adopt- veyed the three sections of land, Nos. 139, ed the pleadings of the plaintiff. By supple- 177, and 179, to C. W. Stewart on the 25th ment answer S. B. Stewart and wife set up day of August, 1902, by deed of that date, the right of subrogation to certain vendor's and in said deed retained vendor's lien on lien notes paid off by S. B. Stewart, and also said section to secure part of the purchase set up a deed executed by C. W. and Mary money evidenced by three notes for $1,493 A. Stewart to the land, conveying the same each, payable to the order of the grantors, to S. B. Stewart, and alleged that they did November 1, 1903, 1904, and 1905, respectivenot know of the deed at the time the wills ly, with 8 per cent. interest; that the notes were probated and not until some time after. had been paid to them, for which they did The plaintiffs, by supplemental petition, an- thereby release, discharge, and quitclaim swered that the deed was never delivered, and unto C. W. Stewart all right and title, inwould not support the statute of limitations; terest and estate, to the land, etc. This rethat the deed never passed from the control lease was recorded November 17, 1906. On or dominion of C. W. Stewart; and they also the 27th day of November, 1906, C. W. Stewpleaded the statutes of limitations, three, four, and ten years, against Stewart's plea of sub-art made his will, and in the preamble rogation. The defendant S. B. Stewart and wife also filed a trial amendment, which at this time is not necessary to set out. The trial court directed the jury to return a verdict in favor of S. B. Stewart against all the other parties to the suit, and judgment was accordingly so rendered. Charles Stewart, Mary Stewart, Jeb Stewart, and Ambrose Stewart filed no answer, and default judgment was rendered against them. thereof he recited: "Being desirous of disposing of all the estate of which I may die possessed," he made and published the will as his last will and testament. The second clause expresses a desire that his just debts, etc., be first paid out of his estate. By the third clause he gave to his son Charles Stewart all of section 138, block B4, and also all of section 144, block B4, in Armstrong county. By the fourth clause he gave to his son The appellants Minnie Eckert, Hermie S. B. Stewart all of section 179, in block B4. Black and Charles Taylor are the chil- The fifth clause directed, after his death, dren of Mrs. Sophia Catherine Stewart Tay- that his debts should be paid out of any perlor, a daughter of C. W. and Mary A. Stew-sonal property of which he died possessed. Mrs. Taylor, the mother of plaintiff, "And if that be not sufficient to discharge died December, 1906. S. B. Stewart, Ambrose all such debts, then that the remainder thereStewart, and Charles Stewart are the sons of of shall be paid out of the proceeds of sec art. tion No. 177, in Armstrong county, Texas.", to the envelope in which the deed was sealed The sixth clause: "I further desire and direct that, after the payment of all my just debts, the remainder of the property of which I may die possessed, whether the same be real, personal, or mixed, choses in action or choses in possession, and wheresoever the same may be located or to be found, shall pass to all my children then living, share and share alike. If any shall die before I do, then the share of such a one is hereby bequeathed to the children of such decedent. And I hereby give and bequeath to my said children S. B. Stewart, of Armstrong county, Texas, Charles Stewart, of Fergus county, Montana, Ambrose Stewart, Prescott, Arizona, and Mrs. Sophia K. Stewart Taylor, of Armstrong county, Texas, all my personal estate and all my real estate or other property of whatsoever kind or character, wheresoever located or to be found, to each share and share alike, subject to the payment of all my just debts, and to the property heretofore bequeathed to S. B. Stewart and Charles Stewart, in paragraphs 3 and 4 hereof." up, together with some indorsements made on the envelope by the cashier when he received the deed from Mr. James, and the letter by James sealed up with the deed. G. M. James, who took the acknowledgment of C. W. and Mary A. Stewart to the deed, was justice of the peace and notary public, living at the time in Washburn. C. W. Stewart sent for James, and he and Judge Logue went to Stewart's place, and Logue wrote the deed. On that occasion there were several deeds made and signed by Stewart and his wife, and the deed to the land in question was signed last. James says at the time Stewart and his wife signed it there was no one present but the three-James, the old man, and his wife. In the presence of the wife the old gentleman said he was making the deed to Sam (S. B. Stewart), and was sure Sam would not accept it during his life; that he and his wife had lived with Sam a number of years, and he felt. that they had been an incumbrance to him more than the other children. After the acknowledgments were taken to the deed, C. W. Stew delivered the deed to James, with the reStewart's request, which was hequest that he (James) comply with C. W. the request. I wrote the note at Washburn in the store, but did not write it on the same day that I took the acknowledgment to the deed. I don't remember how long it was afterwards, but I wrote it the day I went to Amarillo and delivered the deed." The witness identified the note so written. The note is dated the 27th of September, 1906. By the seventh paragraph S. B. Stewart was made sole executor, without bond, and that no action be had except to probate the will, etc. On the 28th day of Decem-art ber, 1906, Mary A. Stewart made her will, which in every particular is the same as that of her husband, C. W. Stewart, except the "instructed me to put it in the First Nationsixth paragraph, in which she devises "to my al Bank of Amarillo, with instructions to be beloved grandchildren, children of my beloved delivered to Sam after his death, but to remain sons, S. B. Stewart and Charles Stewart, to the words he used, I will say that he first the old man's property during his lifetime. As and my beloved daughter, Kate Taylor, de told me to write this note to the First National ceased," share and share alike; and is also Bank, explaining to them the purpose of the different in that she nominated Charles Stew-deed, and I wrote the note in accordance with art and S. B. Stewart as independent executors of her will. C. W. Stewart died February 21, 1907, and S. B. Stewart in May, 1907, filed his application to probate the will of his father, C. W. Stewart, and qualified as his executor, and returned and had approved an inventory of the estate. The section of land in question was included in the inventory as the property of the estate. Mary A. Stewart died September, 1908, and in February, 1909, S. B. Stewart filed application to probate her will and to be appointed executor, which was granted, and he qualified as such executor, and in that inventory the land in question was rendered as part of the estate. The facts in this case show that S. B. Stewart knew nothing of the deed made by his father and mother, C. W. and Mary A. Stewart, September 24, 1906, until after he had probated the will. It was not delivered to him by them or placed of record until after the death of the grantors therein, and long after their wills had been probated and he does not demand it during his lifetime, after any time he sees fit to demand it; but, in case all debts paid out of the personal property his death this deed is to become the property as directed by the wills, and not until appellee of S. B. Stewart, but not until then." Stewart went to the First National Bank of Amarillo to obtain his checks and vouchers which were in the bank preparatory to filing or making his report as executor under the two wills, when his attention was called "When he talked to me about taking it to Amarillo and depositing it with the First National Bank, he said that it would remain his property, and it was my intention to write it down as nearly as I remember it at the time what he said, just as nearly as I could, and in the words that he told me." This note reads: "To the First National Bank of Amarillo, Texas-Gentlemen: This deed is deposited with you under this mutual agreement that this deed is to be delivered to C. W. Stewart at James testified that the writing conveyed the idea Stewart conveyed to him in the fewest words in which he could express it. When he handed the papers to the cashier Lowndes, the cashier said, "We had better write something on the envelope so it could be recognized at once," and he wrote, he thinks, "The property of C. W. Stewart, to be delivered to S. B. Stewart at my death. [Signed] C W. Stewart." When asked if he did not tell counsel that the indorsement on the envelope was, "To be delivered to S. B. Stewart at my death," he stated that he believed he did tell him that, but that it struck him that it conveyed the same idea as his testimony. The indorsement was at the suggestion of Lowndes, and was not Stewart's words, and was only put on the envelope to identify the papers. The witness further stated: "His request to me was that I put this letter-this deed-in the First National Bank, and to tell Mr. Lowndes that he was putting that deed there to be delivered to Sam at his death. but to remain his property; that he could call for it at any time during his lifetime, but if he did not call for it, and it remained in his possession, at his death to be delivered to Sam Stewart." James also states the old gentleman said if he left this section undisposed of it would be divided among the heirs, and that Sam was entitled to more than the others; that he was leaving some other property which would be divided. Mr. Fuqua, the president of the bank, testified substantially that some time before C. W. Stewart died he talked to him about distributing his property among his children by deed. Mr. Fuqua, who appears to have been an old business friend of Mr. Stewart's advised him not to dispose of his property in that way, but suggested to him to do so by will. At that time there was a lawyer in the bank by the name of Douglas Wilson, and Mr. Fuqua recommended him to Mr. Stewart. Wilson was called, and he prepared C. W. Stewart's will in Fuqua's office at that time. Fuqua did not read the will, or did not recollect having done so. Mr. Fuqua could not recollect the date, but the will is dated November 27, 1906. Two witnesses who signed the will were then employed in the bank. Mr. Fuqua appears to have known something of the deposit of the deed in question with the bank at the time of the conversation with Stewart. C. W. Stewart told him Sam was to pay some indebtedness against that section or had done so, and that he wanted to let Sam have that land. He could not fix the time this conversation occurred with reference to making the will or any of the conversation. S. B. Stewart said he paid off the vendor's lien notes mentioned in the deed, and offered in evidence his canceled checks dated November 7, 1906, together with a letter from the cashier of the bank sending to him canceled notes, etc. S. B. Stewart did not learn of the deed until after both wills were probated. In notifying the plaintiff's that he had the deed he did not at the time tell them of the letter placed up with the deed, as he considered it his land after his father's death. It is agreed that the personal property paid off all the debts against both estates, and after paying off the debts the executor had a surplus to make a distribution to the several children, and did make such distribution. S. B. Stewart also testified that he intended to pay the lien against the land in full, and did pay it, and secure the release and recorded it. The testimony of S. B. Stewart also shows that he filed on two sections of school land, and that his father filed on two sections and a threequarter section; afterwards the three sections, 139, 179, and 177, were purchased, and his father executed the vendor's lien notes heretofore set out in the release. The record shows, we think, that the deed to these secand C. W. Stewart were partners in the stock tions was to C. W. Stewart. S. B. Stewart business until 1905, when they closed out the business by disposing of the stock and paying off the debts of the partnership. The evidence shows that Mrs. Sophia K. Stewart Taylor, the mother of the plaintiffs and the daughter of C. W. and Mary A. Stewart, mentioned in the will, died before C. W. Stewart. [1-3] It is urged by appellee that the delivery of the deed to the First National Bank was a present conveyance of the fee-simple title to section 177 to S. B. Stewart, with only the right to use the land during the life me of C. W. and Mary A. Stewart. It is elementary that, in order for a deed to operate as a conveyance, there must have been delivery with the intent and purpose on the part of the grantor to relinquish control of the deed. Steffian v. Milmo Bank, 69 Tex. 513, 6 S. W. 823. We understand, where a grantor parts with all control over his deed when he delivers it to a third person for delivery to his grantee on the grantor's death, the conveyance takes immediate effect, and vests in the grantee title to commence after the grantor's death, but otherwise it does not. Grittis v. Payne, 92 Tex. 293, 47 S. W. s. c., 22 Tex. Civ. App. 519, 55 S. W. 978; 757. The case of Henry v. Phillips, 105 Tex. 459, 151 S. W. 533, as we understand that case, does not hold to the contrary. In that case the verdict of the jury established the fact that the grantor deeded to his two stepdaughters certain land, and he delivered it to the cashier of a bank for safe-keeping, saying it was a deed to some land to them, to be delivered to them after his death. It was simply held in that case that such a delivery passed the title, which operated as a present conveyance, passing the title, which could not be revoked by the grantor. The court said: "It had precisely the same effect as if he had made and delivered the deed to the grantees, conveying the fee, reserving to himself in the deed the use and enjoyment of the land for and during his natural life." When a deed is delivered unconditionally to a third party, to be delivered to the grantee after the death of the grantor, without any control of the same by the grantor, the deed takes effect by relation from the time of the first delivery. McKnight v. Reed, 30 Tex. Civ. App. 204, 71 S. W. 318, citing O'Kelly v. O'Kelly, 49 Mass. (8 Metc.) 436, and Parker v. Spencer, 61 Tex. 162. The case of Taylor v. Sanford, 108 Tex. 340, 193 S. W. 661, is not in point on the question here involved. In that case the grantor executed the deed, filed it for record, and notified the grantee that as soon as it was recorded it would be sent to her, manifesting an unmistakable intention to give her the land and to send her the deed. There was no pretense on his part of a right to control the deed during his life, nor is there any question of revocation in that case. In that case it was an unconditional delivery and beyond the power of the grantor to recall. It may be under the case of Henry v. Phillips, supra, if C. W. and Mary A. Stewart made no other disposition of the property before their death, and if they had not demanded the deed, that at their death the property would have vested in S. B. Stewart. That case would seem to authorize such a holding, but does not authorize the holding that, if the land had been disposed of to others before death by the grantors, nevertheless the title would vest in the grantee. We do not feel justified in holding that the above case, in its holding, is dicta that if the grantor retained control of the deed during his life, if the land was not disposed of by him, the deed would pass the title to the grantee, as insisted by appellant. It would seem that the facts established by the verdict of the jury in that case rendered it unnecessary to hold further that, if they had found the deed was under the control of the grantor, such finding would not have affected the issue, but we cannot say the question was not involved in considering the case; and in re deed and in delivering it, but the court further says: "If the deed had been taken by Patillo (the grantor) during his lifetime from the bank, and found among his effects after his death, and the land not otherwise disposed of by him, in view of his declaration to Simpson, the grantees would unquestionably take the title to the land under the deed." The court again announces the right to assert title under deed after death of the grantor, but again qualifies that right by saying, "and the property not otherwise disposed of." The opinion clearly recognizes the right the deed to otherwise dispose of the property in the grantor when he retains control of before his death. The case of Wren v. Coffey, 26 S. W. 142, construed a deed in the usual form, with this clause added, “All our right, title, and interest in and to our homestead in said Van Winkler survey, should we not sell or dispose of the same before death," as testamentary, not a deed vesting a present estate. The grantee therein was held not to have title superior to a subsequent grantee. of the grantors. That case cites and quotes from Carlton v. Cameron, 54 Tex. 77, 38 Am. Rep. 620. While the cases in our courts are somewhat difficult to reconcile, we yet believe it is recognized in all of them, when the grantor in a deed reserves control of the deed or right to dispose of the property during his life, or when a deed is deposited with a third party, but under the control of the grantor, and not to take effect until after his death, that such control renders the instrument testamentary in character, with the right of revocation in the grantor. De Bajligethy v. Johnson, 23 Tex. Civ. App. 272, 56 S. W. 95; Hanning v. Hanning, 24 S. W. 695. The appellee cites cases such as McLain v. Garrison,, 39 Tex. Civ. App. 431, 88 S. W. 484, 89 S. W. 284, 112 S. W. 773. This case, and like cases, construe a deed with all formal requisites of a deed except the clause, "This deed is to take effect at my death and not before." The case is largely based upon the construction of the statute. article 1111, viewing the opinion of the Court of Civil Ap-R. peals therein the court bases its holding upon the case of Belden v. Carter, 4 Day (Conn.) 66, 4 Am. Dec. 185, and quotes therefrom. We select this from the Belden Case: "The grantor delivered the deed to Wright with the reservation of a power to countermand it; but this makes no difference, for it was in the nature of a testamentary disposition of real estate, and was revocable by the grantor during his life, without an express reservation of that power." Our Supreme Court said, after quoting from the above case, that it was immaterial whether he released control of the deed after depositing it in the bank, in order to show the purpose and intent of the grantor in the 207 S.W.-21 C. S., which provides: "An estate or freehold or inheritance may be made to commence in futuro, by deed or conveyance, in like manner as by will." In the case of Grifthe above article did not apply in that case. fis v. Payne, supra, the Supreme Court held The question there depended on whether there was a delivery with or without retaining control of the deed by the grantor, as in this case. On motion for rehearing, in the case of McLain et al. v. Garrison, reported in 39 Tex. Civ. App. 431, 89 S. W. 284, Judge Fisher set out in full the opinion in Abney v. Moore, 106 Ala. 131, 18 South. 61, and, as pertinent to the inquiry here, we quote from the latter case: "Wills are ambulatory during the life of the testator, and are necessarily revocable; but deeds take effect by delivery, and are operative and binding during the life of the grantor. As was said in Croker v. Smith, 94 Ala. 297, 10 South. 258 (16 L. R. A. 576): "The intention of the maker is the ultimate object of the inquiry, whether it was intended to be ambulatory and revocable, or to create rights and interest at the time of the execution which are irrevocable. If the instrument cannot be revoked, defeated, or impaired by the act of the grantor, it is a deed; but if the estate, title, or interest is dependent on the death of the testator-if in him resides the unqualified power of revocation-it is a will.'" 8 R. C. L. § 60, "Deeds," p. 995, states as a generally accepted rule in part the following: "If the deed is not delivered (during the lifetime of the grantor), and it is held by the cus todian subject to the order of the grantor, who does not part with all control over it, retaining the right to reclaim or recall it, the transaction will usually be construed as an attempted testamentary disposition, which can be effected only by an instrument in writing executed in conformity with the statute of wills." "There is no delivery when the deposit with the third person is not accompanied by an intention to part with all control over the deed. In doing so the power to revoke or to claim the deed must be given up and all power over it surrendered." Devlin on Real Estate, "Deeds," c. 12, vol. 1, p. 384, § 261a and 260 (3d Ed.); Moore v. Trott, 156 Cal. 353, 104 Pac. 578. 134 Am. St. Rep. 131; notes to Jackson v. Jackson, Ann. Cas. 1915C, pp. 378, 380. Belden v. Carter, 4 Day (Conn.) 66, 4 Am. Dec. 185, denies the necessity of the grantor parting with all control and dominion over the deed. The Connecticut Supreme Court in the case of Grilley v. Atkins, 78 Conn. 380, * 62 Atl. 337, 4 L. R. A. (N. S.) 816, criticizes that case, and says: "The ruling upon this last point in the above case is opposed to the overwhelming weight of authority. * And it would not probably be followed in this state to-day. Be that as it may, our Supreme Court has followed it, but in doing so it has not taken the power of the grantor from him during his lifetime to dispose of the property where he retains control of the deed. the will, as well as upon section 177. The wills bequeathed this section to S. B. Stewart instead of section 177. In order to pass the present title to S. B. Stewart there must have been an unconditional delivery, and until there was such delivery no title vested by it. At any time before C. W. Stewart's death he could recall the deed or he could otherwise dispose of the land. By instructions to James it is manifest the deed was not to be delivered until after the grantor's death. The bank was to hold the deed sub ject to the control of C. W. Stewart. This clearly was not a present delivery, and evidences clearly it was not the intention of the grantors that it should be such a delivery. If at his death he had not otherwise disposed of the property with the deed still left in the bank, it may be conceded, under the holdings of our Supreme Court, that title would have vested by it. We think the wills of C. W. and Mary A. Stewart disposed of this property before their death. That right they had reserved when they deposited the deed in the bank subject to their control. The wills manifest a desire to dispose of all the property of which the testators died possessed. They desired their debts paid out of the personal property, but, if not sufficient, then they were to be paid out of the proceeds of section 177; and the concluding sentence of paragraph 6 gives and bequeaths to the children and the grandchildren "all my personal estate, and all my real estate," "share and share alike," subject to the debts, "and subject to the property heretofore bequeathed to S. B. Stewart and Charles Stewart in paragraphs 3 and 4 hereof." The lands mentioned in paragraphs 3 and 4 were excepted from the devise to all the children of all their property. Argument would not make more clear the fact that in their lifetime C. W. and Mary A. Stewart disposed of the land of which they retained the deed theretofore made under their control. They gave their son section 179 in their wills instead of section 177. The evidence in this case is that section 179 was improved, while section 177 appears to have been only a grazing section. After probating the will appellee Stewart liv ble for the vendor's lien notes which Stewart says he paid. ed on section 179. That section was also lia [4, 5] Under the facts of this case we do not see how there could be any serious ques-rants the conclusion that there was a section In addition to that fact, the record wartion that C. W. Stewart retained the deed under his control during his lifetime. The deed was to be delivered to him at any time he saw proper to demand it. Clearly, this was not an unconditional delivery to the bank to hold for S. B. Stewart. The notes mentioned in the deed which the grantee was to pay were paid before the grantor's death, and the interest in the land by virtue of the notes was released and quitclaimed to C. W. Stewart. These notes were also a lien on section 179, bequeathed to S. B. Stewart in of land, No. 102, which his father had filed on as school land, and which Stewart owned at the time of this trial. It is evident from this record that by the will the parents gave to S. B. Stewart more than they did to the others, unless it was Charles. C. W. Stewart evidently took the advice of his banker, and disposed of his property by will. It is manifest that he acted at once on the advice, as the lawyer in the bank was at once called and drew up the will. There is nothing to |