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. LooMng 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 opmion that the court did not err in its judgment, if it was based on its opimon that the intention of the maker was that the instrument take effect only on Ms 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 wMch it is also sought to support it.

The judgment is affirmed.

Affirmed.

[Opimon delivered December 7, 1880.]