The appellants contend that the instrument executed by Martin Guest on the 15th December, 1845, purporting to be a deed of gift of certain property specified and of his future acquisitions, to some of his children who are named, was testamentary in its nature, and as such, subject to *68revocation ; and if so, that it was revoked by Ms will subsequently made.
The appellees maintain that the instrument was an irrevocable deed of gift, and vested in them an exclusive right to the property.
I shall consider the instrument, not so much with the view of ascertaining whether, on general principles of law, it be testamentary in its nature, as of determining whether it be or not an evasion of those provisions of the Act of 1840 concerning wills, which inhibited parents from disinheriting their children, unless from specific causes.
The Act allowed parents the free disposition, by will, of'the the one-fourth of their property ■ but did not prohibit them (as was the case under previous laws,) from disposing by gift inter vivos of more than this fourth, or in fact of the whole of their property. The result has been the opening of a door for schemes and contrivances to elude the restrictions imposed by the Statute, on the testamentary power of parents, by gifts and pretended sales, which, in form and color, evidence a transfer of the property during the life of the parent, but under which in fact and substance and in actual beneficial enjoyment, the parent retains the use and benefit of the property during Ms natural life, thus relinquishing in substance his interest only when it would cease by death.
The subject was maturely considered in the case of Crain et al. v. Crain et al. decided during the last Term, (17 Tex. R. 80,) and among other matters it was in substance held, that if a parent would indulge in partialities between his children, and make a difference, he must do it directly, absolutely and by an unqualified gift, surrendering all Ms own interest. He must give out and out. He must not exercise his power by an act which in substance or form would take effect against his own interest only when that interest would cease.
It is true that the donor does not, in this deed, reserve in . form, a life estate in himself. But he does what is equivalent. *69He reserves, during his life, the control of the property as trustee for the children, and the right to sell any portion for their education and support. Whatever may be the form or words of the instrument, the effect is to reserve a life estate to the donor, giving to the donees what may remain at his death.
It cannot be pretended that the donees could require him to account during his life ; or if even so, that such accounting would impose any burthen upon the donor or interfere with his enjoyment of the property. He retains the right of control by the deed ; and there is no other property from which Ms debt on account- could bo satisfied. Upon the whole, the deed must be regarded as a shift to evade the Act of Wills restraining the testamentary power of parents, and as such is void.
The question whether such disposition might not be good for the one-fourth, does not arise in this case. If a deed of gift can in any case be valid for the one-fourth, it would only be in cases where there was no subsequent disposition of the property by will. But in this case there was a will, and the question as to the fourth, under the deed, cannot arise.
The question as to the character of the deed, whether testamentary in its mature or not, was learnedly discussed by counsel; and the authorities referred to have been examined, and I incline to the opinion that it was testamentary, and as such, subject to revocation. It is not essential, however, that this point should be decided. But on the ground that the deed was a virtual fraud, and evasion of the Act concerning wills, we are of opinion that it was void, and it is therefore ordered and adjudged that the judgment of the District Court be reversed and the judgment of the County Court be in all things affirmed.
Reversed and reformed.