but such construction of the statute has been settled so long, and adhered to, with intervening re-enactments of the statute, that it should be regarded as having become a rule of property, and should not be disturbed. Extending to the recitals of the decree of sale the presumptions which these decisions extend to judicial proceedings when collaterally assailed, we are forced to hold that they satisfy the requirements of the statute that the evidence must be taken by depositions as in chancery proceedings, the entire record not negativing or falsifying them. The transcript was properly admitted in evidence, and, in connection with the conveyance made by the administrator to the defendant under an order of the probate court, proves that the plaintiff had been divested of his title. Affirmed.

JURISDICTION. — The question of jurisdiction must be tried by the whole record, and when it appears therefrom that the court had no jurisdiction over the subject-matter, the judgment is void, and will be so considered when attacked collaterally; but all things required by statute to be done will be presumed to have been done, in absence of proof to the contrary: Adams v. Cowles, 95 Mo. 501; 6 Am. St. Rep. 74, and note 79. But judgments are not collaterally attackable for irregularities: Knott v. Taylor, 99 N. C. 511; 6 Am. St. Rep. 547, and note 551; Indiana etc. R'y Co. v. Allen, 113 Ind. 308; 3 Am. St. Rep. 650, and note 654; Mitchell v. Atken, 37 Kan. 33; 1 Am. St. Rep. 231. But the jurisdiction of a court of limited jurisdiction which has rendered a judgment may be collaterally questioned: People's Savings Bank v. Wilcox, 15 R. I. 258; 2 Am. St. Rep. 894, and note 896, as to whether the jurisdiction of a probate court may be collaterally questioned, and also as to whether a probate court is a court of limited jurisdiction.

JURISDICTION. The presumption is, that a court of limited or inferior jurisdiction is without jurisdiction when the jurisdiction does not appear, and the jurisdictional facts are not alleged in a complaint in an action therein: Gilbert v. York, 111 N. Y. 544; but the contrary rule is true as to courts of record of general jurisdiction: English v. Woodman, 40 Kan. 752; City of St. Louis v. Lanigan, 97 Mo. 176; Hilton v. Buchanan, 24 Neb. 490.

PROCESS, THE SERVICE OF, HOW PROVED. The recital in the record by the court that defendants in the proceeding named had been served with process is evidence that they had been so served, and that the court had jurisdiction over their persons: Brickhouse v. Sutton, 99 N. C. 103; 6 Am. St. Rep. 497; and it has even been held that such a recital is not only evidence of service, but conclusive evidence of that fact: Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742, and note 765 et seq.; note to Melia v. Simmons, 30 Am. Rep. 748-752. But the record recitals in the judgment entry as to the service of the summons are not conclusive where the service found in the rolls is fatally defective: Blodgett v. Schaffer, 94 Mo. 652; but see Adams v. Cowles, 95 Id. 501; 6 Am. St. Rep. 74, and note 79.

JUDICIAL SALES

- PROBATE COURTS. - Proceedings in probate for the sale of a decedent's estate are in rem, and cannot be collaterally attacked: Satcher . Satcher, 41 Ala. 26; 91 Am. Dec. 498; but in Clark v. Thompson, 47 Ill.

25, 95 Am. Dec. 457, and note, it is held that unless all the steps necessary to bring the parties before the court have been taken in the proper manner, the court acquires no jurisdiction to order a sale. Compare the case of Lyons v. Hamner, 84 Ala. 197; 5 Am. St. Rep. 363. And so it has been decided that a purchaser at a probate sale, which is founded upon a petition which does not contain the averments necessary to give the court jurisdiction, acquires no legal title: Wilson v. Holt, 83 Ala. 528; 3 Am. St. Rep. 768.

SHARP V. HALL.

[86 ALABAMA, 110.]

CONSTRUCTION OF WRITING-DEED OR WILL. In arriving at a conclusion as to whether a written instrument, doubtful in its character, but posthumous in its operation, is a deed or a will, the controlling inquiry is the intention of the maker, to be gathered primarily from the language of the instrument itself; but this does not preclude proof of instructions given to a draughtsman as to the nature of the paper he was asked to prepare, nor of all attending circumstances which will aid in determining the maker's intention; and the fact that the paper has never been delivered, and could not operate as a deed, should be considered; for in such doubtful cases, if it could operate as a will, it will be so pronounced.

EVIDENCE. INTENTION is an inferential act, and, unless announced at the time the act is done, is not susceptible of direct proof.

INCOMPETENT EVIDENCE once admitted may be rebutted by other incompe tent evidence.

PROBATE. The instrument in dispute is as follows: "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 now here give and deliver to her the following property, to wit [describing a lot 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." Signed, Mrs. Anne E. Hornsby; attested by J. J. Davis and J. K. Kirk, subscribing witnesses. The sixth instruction asked, and refused, was, that "6 the fact that Mrs. Hornsby did not dispose of all her property, if it be a fact, must be considered by the jury, with the other evidence, to ascertain whether or not the instrument was intended to be a will." The opinion discloses the other facts.

Kirk and Almon, for the appellants.

J. B. Moore, contra.

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 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 lifetime 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 remainderman during the grantor's life; yet it is a deed, and not a will: 1 Bigelow's Jarman on 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 Devereau on Deeds, sec. 983; Robinson v. Schley, 6 Ga. 515; Elmore v. Mustin, 28 Ala. 309; Hall v. Burkham, 59 Id. 349. In Daniel v. Hill, 52 Id. 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's Jarman on Wills, 20, 25; Habergham v. Vincent, 2 Ves. Jr. 204; Jordan v. Jordan, 65 Ala. 301; Daniel v. Hill, 52 Id. 430; Shepherd v. Nabors, 6 Id. 631; Kinnebrew v. Kinnebrew, 35 Id. 638. The intention of the maker is the controlling inquiry; and that intention is to be gathered, primarily, from the language of the instrument itself: Dunn v. Bank, 2 Id. 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 (Bigelow's ed., vol. 1, p. 19) says: "The court seems to have been influenced by the circumstance that the person who prepared it was instructed to make a will."

In Wareham v. Sellers, 9 Gill & J. 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, 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: Gilham v. Mustin, 42 Ala. 365; Daniel v. Hill, 52 Id. 430; Campbell v. Gilbert, 5'7 Id. 569; Jordan v. Jordan, 65 Id. 301; Rice v. Rice, 68 Id. 216; Lee v. Shivers, 70 Id. 288; 1 Bigelow's Jarman on Wills, 25; Gage v. Gage, 12 N. H. 371; Mealing v. Pace, 14 Ga. 596, 630; Symmes v. Arnold, 10 Id. 506; Jackson v. Jackson, 6 Dana, 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, 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