The opinion
Hill, C. J’., (dissenting), Mr. Justice Battle and I are of the opinion that the complaint herein lacks every element of equity jurisdiction. The defendants by demurrer promptly met this question, and we are of opinion that the chancellor erred in overruling it, and for that reason the case should be reversed, and the cause either dismissed or a transfer to a court of law had, as the parties might, elect.
The determining question in this case is one of fact, which should be submitted to a jury. I am of opinion that, while the instrument is a deed on its face, yet the evidence shows that it was not intended to operate as a deed, but was essentially a testamentary disposition of the property through the legal formalities of a deed. In other words, the evidence convinces me that this instrument was not intended to have any effect as a deed, but to be brought into life only when the grantor died, as a disposition then to be had of his estate.