should pronounce it a will, ut res magis valeat: Bigelow's Jarman on 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 daughtsman of the paper and employed him to write her will; that in pursuance of such employment, he wrote the paper in controversy; that she signed it with a knowledge of its contents, and had it attested; that she did not deliver it, but had it placed in an envelope, and indorsed, "Not to be opened until after my death," and that she carefully preserved it in such envelope until her death. Now, all these facts and circumstances, if proved and believed, were competent and proper for the consideration of the jury in determining the issue of devisavit vel non. And the fact, if believed, that the paper had never been delivered, and therefore could not take effect as a deed, should also be considered in arriving at the maker's intention.

In excluding from contestant's exceptive allegation the averment that the paper is a deed, the probate court committed a technical error. That was the real issue in the case. This ruling, however, did the contestants no injury, as they had the benefit of the defense it sought to interpose: 3 Brickell's Digest, 405, sec. 20.

Under our rulings, if the question were properly raised, the witness Davis should not have been permitted to testify that his intention in framing the paper was to make it a will. Intention is an inferential fact, and, unless it is announced at the time the act is done, it is not susceptible of direct proof: 3 Brickell's Digest, 438, secs. 479 et seq. The objection to this testimony however was, that it was "parol evidence introduced to vary and change a written instrument." There was

nothing in this objection, and it was rightly overruled: 8 Id. 444, sec. 574.

We have shown that the opinion of the witness Davis that the paper was a will, or that he intended it for a will, was illegal evidence, if properly objected to. Being admitted, however, it was competent to rebut it. It was attempted to be rebutted in this case, not by disproof of the fact, but by testimony tending and intended to discredit the witness. A letter proved to have been written by him, and which stated that Mrs. Hornsby had died intestate, was, after laying the proper predicate, offered for this purpose. This letter, it was contended, contained a prior contradictory statement by the witness to that part of his testimony in which he had said the paper was intended as a will. Offered as it was, it should have been received: 1 Brickell's Digest, 889, sec. 1225. In the absence of proof by Davis that he intended the paper for a will, the letter would have been illegal evidence: 2 Id. 549, sec. 126; 3 Id. 828, sec. 101.

The paper over which the present contention arose contains the following clause: "And this [the execution of the paper] is done, in part, to do away with all need or necessity of taking out letters of administration after my death." This clause is a circumstance which the jury may look at and consider, in determining whether Mrs. Hornsby intended that Julia M. Hall should take or enjoy any interest during the former's life. It is not conclusive, but must be weighed with the other evidence. It would probably be more weighty if it made provision for Mrs. Hornsby's entire estate. Attempts-fruitless, of course, are sometimes made to dispense with administration, even in documents that are unmistakably testamentary.

Charge No. 6, asked by contestants, should have been given. The remaining charges asked by them were, in the light of the evidence, calculated to confuse or mislead, and were rightly refused on that account.

We have now considered all the questions we deem necessary. In a very few of the many rulings the probate court erred.

Reversed and remanded.

INSTRUMENT OF WRITING, WHETHER A DEED OR A WILL-If it appears doubtful from the face of an instrument whether the person executing it intended it to operate as a deed or a will, it is proper to ascertain the intention of such person, not only from its contents, but also from evidence

showing how such person really considered it: Robertson v. Dunn, 2 Murph. 133; 5 Am. Dec. 525. An instrument in the form of a deed is a will, where the property that it purports to convey is an undivided interest in that of which the grantor shall die seised: Watkins v. Dean, 10 Yerg. 320; 31 Am. Rep. 583, and note. An instrument passing property during the donor's lifetime, although of alleged testamentary character, being not absolutely a will, must be a deed, for there is no middle ground: Hileman v. Bous laugh, 13 Pa. St. 344; 53 Am. Dec. 474. An instrument may be partly a deed and partly testamentary: Burlington University v. Barrett, 22 Iowa, 60; 92 Am. Dec. 376, and note. An instrument may be a will, though in the form of a deed, if it is revocable at pleasure, not to take effect until the death of the maker, properly attested, and otherwise regular in form: Evans v. Smith, 28 Ga. 98; 73 Am. Dec. 751.

DISTINCTION BETWEEN DEEDS AND WILLS: See monographic note to Burlington University v. Barrett, 92 Am. Dec. 383-389. Whether a paper is a deed or a will is a question of intention; if it appears that the maker did not intend any interest whatever to vest before his death, then the law regards the instrument as a will: Simon v. Wildt, 84 Ky. 157.

MURRAY, DIBRELL, AND COMPANY v. MONEALY AND CURETON.

[86 ALABAMA, 234.]

CHATTEL MORTGAGE GIVEN TO SECURE the payment of a bona fide debt, and authorizing the mortgagor to retain possession and continue the sale of the goods exclusively for the benefit of the mortgagee, paying the proceeds of sales to him each week, or oftener if required, is not fraudulent on its face, but is valid as against creditors, and makes the mortgagor the agent of the mortgagee to sell and account to him.

W. A. Scott, for the appellants.

J. F. Roper, contra.

SOMERVILLE, J. The point chiefly discussed, both at the bar and in the briefs of counsel, is the validity of the mortgage executed by the defendants, McNealy and Cureton, to Davis and Son, on November 18, 1887, transferring to the mortgagees a stock of merchandise then in the possession of the mortgagors, for the purpose of securing a debt described in the instrument. As to the bona fides of this debt there is no serious controversy. Nor is any actual fraud established by the testimony which can in any way vitiate the transfer of the goods. It is contended that the mortgage is rendered fraudulent on its face by the provision contained in it authorizing the mortgagees, McNealy and Cureton, to continue the sale of the goods, although it is expressly stipulated that such sale shall be exclusively for the benefit of the mortgagees. It

AM. ST. REP., VOL. XI. -8

is provided that "all moneys arising from the sales of said goods" shall, co instanti, be the property of the mortgagees, and shall be paid over to them at the end of each week, or oftener if required, and shall go as credits on the mortgage debt, the mortgagors expressly agreeing that all such sales "shall be for and on account" of said mortgagees. If any of the goods are sold on a credit, the accounts are also to pass to the mortgagees as their property, and be credited as so many payments on the mortgage debt.

The law day is fixed on February 1, 1888, the day the secured debt fell due.

There is no clause anywhere contained in the mortgage which can be construed, expressly or by implication, as evincing an intention to permit the mortgagors to reserve any benefit to themselves, or any power of disposition over the goods inconsistent with the idea that the property is not to be held strictly subject to the lien of the mortgage as a bona fide security for the debt.

In Benedict v. Renfro, 75 Ala. 121, 51 Am. Rep. 429, we discussed at length the subject of mortgages on stocks of merchandise, where the mortgagor was permitted to remain in possession, and to sell the goods in due course of trade for his own benefit. We held that such a power, accompanied with continued possession, conferred on the mortgagor a dominion over the property which was utterly inconsistent with and subversive of the mortgage lien, rendering the mortgage itself virtually a conveyance "made in trust for the use of the person making it," and stamping it with invalidity for fraud, as tending inevitably to hinder and delay the creditors of the mortgagor.

Anticipating such a case as that now before us, we then said: "We are not to be understood as intimating in this opinion that a mortgage of merchandise would be rendered conclusively invalid, where the mortgagor is in good faith left in possession of the goods with power to sell for the exclusive use of the mortgagee, holding the proceeds of sale for his benefit. In such a case, he may well be deemed the mere agent of the mortgagee, acting for him and in his behalf." In Robinson v. Elliott, 22 Wall. 513, 524, where the subject is elaborately discussed by the supreme court of the United States, it was observed by Mr. Justice Davis that the court was not prepared to say that a mortgage would not be sustained "which allows a stock of goods to be retained by the mort

gagor, and sold by him at retail, for the express purpose of applying the proceeds to the payment of the mortgage debt. .... Indeed, it would seem," he observed, "that such an arrangement, if honestly carried out, would be for the mutual advantage of the mortgagee and the unpreferred creditors." The mortgage, in that case, was held fraudulent and void, on the same ground stated by us in Benedict v. Renfro, supra, that the mortgagors were permitted to deal with the property as their own, without covenant to account with the mortgagees for the proceeds of sale, and without recognition that the property was sold for their benefit.

The principle controlling this case is not distinguishable from that decided in Perry Ins. Co. v. Foster, 58 Ala. 502; 29 Am. Rep. 779. There, an assignment was made conveying to a preferred creditor, in the early part of the year, a plantation, and the crops to be raised during the year, and the personal property used in cultivating them. It was stipulated that the property should remain in the possession of the grantors, to be used by them in making the crops, which were to be delivered to the grantee as soon as made and gathered, the proceeds to be applied to the payment of the secured debts. No actual fraud being shown, the assignment was sustained, on the ground that it was contemplated that the whole property was to be devoted to the satisfaction of the mortgage debt, without the reservation of any benefit to the grantor. Said Brickell, C. J.: "If the crops to be produced are, with the existing property, to be devoted to the payment of the secured debts, it has not been supposed such a stipulation is a reservation of a benefit to the debtor, though thereby the residuum which must revert to him may be increased. It is not unusual in assignments to provide that the assignees, or the debtor under their direction, may continue the business; and if it appears this is done, not for the benefit of the debtor and to the prejudice of the unsecured creditors, but to promote the interest of the creditors who are preferred, they are sustained." Many cases are cited illustrative of the principle involved, and sustaining the conclusion reached by the court.

The precise question here involved has been many times. considered by the New York court of appeals. It arose in Conkling v. Shelly, 28 N. Y. 360, 48 Am. Dec. 348, where the court sustained such a mortgage of a stock of merchandise as valid,-it being declared to be neither unlawful nor fraudulent per se. It was said: "Such an agreement made the