Cases argued and decided in the Supreme Court of the State of Texas, during part of the Tyler term, 1880, the Galveston term, 1881, and a part of the Austin term, 1881. Volume 54. Page: 77
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1880.] CARLTON V. CAMERON.. 77
Opinion of the court.
Mexico, still it is nothing more than a testamentary devise,
and the estate devised was ambulatory during the
lifetime of the donor, Abner Lee, and he having disposed
of it during his lifetime, the devisee or donee (appellant)
took nothing under it at his death. Crain v. Crain, 1I
Tex., 82 (25 Tex.); Millican v. Millican, 24 Tex., 426; Ellison
v. Reese, 25 Tex. Sup., 90; Epperson v. Mills, 19
Tex., 67, 69; 3 Wash. Real Prop., 503; Williams' Ex'rs,
86; Hester v. Young, 2 Kelly, 36, 38, 44, 46, 49; Turner
v. Scott, 51 Penn. St., 126; Ragsdale v. Baker, 2 Bailey,
588; Kinard v. Kinard, 1 Speer's Eq., 256;, Crawford v.
McElvy, 2 Speer, 230; Burlington University v. Barrett,
22 Iowa, 60; Habergham v. Vincent, 2 Ves. Jr., 204;
Wood v. Turner, 2 Ves. Sr., 440.
GOULp, ASSOCIATE JUSTICE.- Although the instrument
of July 16, 1836, had the form of a deed, and was placed
upon record, it was nevertheless testamentary in its character,
and inoperative as a deed, if the intention of the
maker appears to have been that it should take effect only
on his death. Looking to the terms of the instrument,
the nature of the reservation, and of the estate to be created,
and bearing in mind that the court below, acting
without a jury, passed upon all questions of fact, we are
of opinion that the court did not err in its judgment, if it
was based on its opinion that the intention of the maker
was that the instrument take effect only on his death,
and that it was therefore testamentary in its character.
There is ample authority supporting such a construction
of similar instruments. Hester v. Young, 2 Kelly, 46;
Turner v. Scott, 51 Pa. St., 130; Epperson v. Mills, 19
Tex., 67; Ferguson v. Ferguson, 27 Tex., 344. As we are
of opinion that on this ground the judgment is correct,
it is not material to pass on other grounds on which it is
also sought to support it.
The judgment is affirmed. AFFIRMED.
[Opinion delivered December 7, 1880.]
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during part of the Tyler term, 1880, the Galveston term, 1881, and a part of the Austin term, 1881. Volume 54., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28520/m1/85/: accessed February 28, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .