wick, a conveyance of real and personal property, for their use and benefit during the term of her natural life. On March 20, 1887, she executed to them another conveyance of the same property, for the purpose of correcting a mistake in the first conveyance in respect to the estate intended to be conveyed and the time it should take effect. In June, 1879, her husband, in consideration of love and affection, conveyed the same property to his sons Elijah A. and Thomas Trawick. Mrs. Trawick died in 1884. The bill was filed originally by Ann E. Davis, who was a daughter of the deceased by a former marriage, and sought to have the foregoing conveyances declared void and inoperative, and her personal property distributed among her distributees. The bill alleges that there has been no administration of her estate, and that she owed no debts at the time of her death. The estate being free from debt, and the action of the probate court not having been invoked by the heirs and distributees, a bill will be maintained for the purpose of allotting to them their respective shares without the expense and delay of an administration. Miller v. Eatman, 11 Ala. 609; Marshall v. Crow, 29 Ala. 278. The defendants do not controvert the equity of the bill, but, in order to defeat complainant's right to the relief prayed for, set up the conveyances made by Mrs. Trawick and her husband, under which they claim title.

They insist that the conveyance of March 20, 1877, is a will, and that effect should be given to it as such. Whether an instrument is testamentary, or a conveyance operating to create estates and rights upon its execution, is often a question of great difficulty. When it can have no effect as a deed, the court is inclined to regard it as a will, if in that character effect can be given to the evident intention of the maker. The controlling question is whether the maker intended that an estate or interest should vest before his death. If such be the intention, and the instrument can reasonably thus operate, it will be upheld as a deed. While the estate conveyed must vest upon the execution of the instrument, the passing of immediate rights of possession and enjoyment is not essential to constitute a deed, and the reservation of a life-estate does not of itself make it a will. Hall v. Burkham, 59 Ala. 349; Jordan v. Jordan, 65 Ala. 301. The instrument is properly executed either as a will or a deed. After employing the usual words of grant and conveyance, the language: "To have and to hold the same to the said George N. Trawick and Elijah A. Trawick forever; but this conveyance is not to take effect and be in force till my death,-my purpose and intention being to reserve a lifeestate for myself in all of said property, and at my death to pass absolutely to said George N. Trawick and Elijah A. Trawick, and to them alone." If the words, "this conveyance is not to take effect and be in force till my death,” stood alone, they would clearly indicate that no estate or interest should pass upon the execution of the instrument. But the intention of the maker must be ascertained from all of its terms and the surrounding circumstances. It is manifest that the first instrument was intended to vest, and does vest, a present estate, and immediate right of enjoyment, to continue during the life of the grantor. The second instrument has direct relation to the first, and purports on its face to have been made for the purpose of correcting mistakes in the first. The maker declares her intention, in making the second instrument, to reserve a life-estate for herself, and at her death the property to pass absolutely to her beneficiaries. When it is considered that the second instrument was made to correct mistakes in the first, which is essentially a deed, and they are construed together, it seems a reasonable inference that the language quoted above was not intended to postpone the vesting of an interest or estate, but its enjoyment until the death of the maker. This question, however, it is unnecessary for us to decide, for the result is the same, whether the instrument be regarded as a deed or will.

The property conveyed was the statutory separate estate of Mrs. Trawick. It has been long and repeatedly settled that, under the statutes creating the

separate estates of married women, the property of the wife can only be conveyed during coverture by an instrument of writing jointly executed by the husband and wife, and attested by two witnesses, or properly acknowledged. The husband did not join in the execution of the conveyances, and could not have joined in a conveyance to himself. If the instrument be regarded as a deed, it is a nullity, inoperative to pass any right or title. Falk v. Hecht, 75 Ala. 293; Hammond v. Thompson, 56 Ala. 589. If regarded as a will, rights under it cannot be asserted until admitted to probate in the proper forum. Other tribunals will not inquire into the mode and sufficiency of its execution, the capacity of the testator, the question of undue influence, or any other question, which is adjudged and settled by its probate in the proper forum, except as provided by statute. When rights are claimed under it, the judgment of the probate court, on which exclusive jurisdiction is conferred, establishing its authenticity and validity as a will, is the only evidence which can be received in other courts. Wood v. Mathews, 53 Ala. 1. It is contended, however, that as the complainants have attached a copy of the instrument as an exhibit to the bill for the purpose of showing its invalidity, thus bringing it before the court, the defendants are not the actors, and the rule above stated does not apply. In support of this contention the case of Tarver v. Tarver, 9 Pet. 174, is cited. In that case the instrument had been admitted to probate as a will, and the object of the bill was to have the probate declared void. The complainant was the actor assailing the validity of the probate. It is said: "The complainant having set out the will, everything, by his own showing, was before the court that was necessary to be decided." In the present case the instrument is set out in the bill as a deed, and the defendants do not in their answer make any claim under it as a will, but as a conveyance. In their answer they aver that Mrs. Trawick intended thereby to convey the fee, only reserving a life-estate. Its invalidity as a deed is the question presented to be decided. To avoid the decision of the question whether it is a valid deed, the defendants now assert that the instrument is testamentary, and claim rights under it as a will. If it had been set up in the answer as a will, as to this matter and in this respect, they would be the actors, and the general rule applies. Whether considered as a deed or a will, the instrument presents no obstacle to granting relief to complainant, Mrs. Davis. Amanda Pate and her husband were made defendants to the original bill. During the progress of the suit the bill was amended on their petition so as to make them complainants. To the bill, as thus amended, the other defendants filed an answer and a cross-bill, in which it was alleged that the matter in dispute had been compromised and settled between them and Amanda Pate and her husband, who had conveyed to them all their right and interest in and to the property. In their answer to the cross-bill, Amanda Pate and her husband admit the compromise, settlement, and conveyance, and aver that they have no interest in the litigation. The chancellor decreed that the real estate and one-half of the personalty be equally divided among the three children of Mrs. Trawick, Mrs. Pate being one. In this there is error. The portion of Mrs. Pate should have been allotted to Elijah and Thomas Trawick, to whom she had conveyed her interest.

G. N. Trawick, the husband, having died during the pendency of the suit, his life-estate in the real estate of his wife terminated, and there was no further obstacle to a partition of the land among the heirs of Mrs. Trawick.

On her death, her husband became entitled to one-half of her personalty, which was properly decreed to his adininistrator. The pleadings present no question involving the rights of his grantee, as against his administrator. For the error mentioned the decree must be reversed, and the cause remanded.

JEFFERSON COUNTY v. TRUSS et al.

(Supreme Court of Alabama. December 6, 1888.)

1. CONVICTS-HIRING OUT LABOR-JURISDICTION OF STATE INSPECTORS.

Crim. Code Ala. 1886, § 4591, provides that when convicts are sentenced to hard labor for the county, and hired out by the court of county commissioners, the inspectors of state convicts shall visit such convicts, and report to the probate judge as to their condition and treatment. Whenever the board of inspectors shall notify the governor that such convicts should be removed from the place where they are at labor, or from the control of the person who has hired them, the governor shall order the probate judge to remove them, or to annul the contract. Sp Acts Feb. 17, 1885, and Feb. 18, 1887, relating to the working of public roads in Jefferson county by contract, with the use of county convicts sentenced to hard labor for that county, authorize the court of county commissioners to hire such convicts to contractors for work on the public roads, and to appoint a "superintendent of public works" to carry out their orders, and to see that the convicts are properly treated, etc.; each commissioner to visit the convicts at least once every 30 days. Held, that these special acts do not supersede, as to Jefferson county, the jurisdiction of the state board of inspectors and governor, under the above section of the Code. 2. SAME-WORKING ON COUNTY ROADS.

Convicts are none the less "hired out by the county," within the meaning of the statute, because hired out under contract to work certain public roads of the county. 8. SAME-ANNULLING CONTRACT-AUTHORITY OF Governor.

A contract for hiring convicts, made after the adoption of the Code, being subject to the statutory condition that it might be annulled by order of the governor, acting on information from the board of inspectors, under section 4591, no judgment of a court is required to authorize the governor's action, nor are the parties entitled to notice or a day in court. His decision, in the absence of fraud, is final.

Appeal from city court of Birmingham; H. A. SHARPE, Judge. Bill for injunction, filed by the county of Jefferson against S. R. Truss and others. The bill was dismissed for want of equity, and complainant appeals. Hewitt, Walker & Porter, for appellant. T. N. McClellan, for appellees.

SOMERVILLE, J. The purpose of the bill, which was dismissed by the chancellor for the want of equity, is to enjoin the sheriff of Jefferson county from enforcing an order of the probate judge of that county, made by the direction of the governor of Alabama, under the authority conferred by section 4591 of the present Code of 1886. This order, made on April 25, 1888, declares a certain contract made between one James M. Lovelace and the county of Jefferson, the complainant in the present bill, under which Lovelace then held the county convicts of said county, to be annulled, and adjudges that said convicts be removed from the place where they were at labor on April 9, 1888, and from the control of said Lovelace, their hirer. The record shows that the order has been made in strict accordance with every requirement of the statute. It is made to appear that the board of inspectors of the state convicts had officially reported to Gov. Seay that these particular convicts, who had been duly sentenced to hard labor for the county of Jefferson, should, in their judgment, be removed from the place where they were then at labor, and from the control of said Lovelace, to whom they were then hired. Upon the faith of this report, the governor issued an order, as directed by the statute, instructing the probate judge of Jefferson county to remove these convicts from such place, and to annul the contract under which they were hired. The action of the probate judge is merely a strict obedience of this executive order, which is mandatory in its character. It is insisted by appellant's counsel that this order is void, on the ground that section 4591 of the Code, under which it was made, has no application to Jefferson county, in view of certain special legislation by which this hiring to Lovelace was authorized. The section of the Code, upon a proper construction of which this case turns, is as follows; the portions of it more applicable to this case being put in italics, for the purpose of more ready reference: "4591. When convicts are sentenced to hard labor for the county, and hired out by the court

of county commissioners, it shall be the duty of the inspectors of state concicts to visit such convicts whenever they shall deem it necessary; and they shall rigidly scrutinize and inquire into the treatment and management of such convicts, and shall report to the judge of probate, in writing, the condition and treatment of such convicts. No contract shall be made by such court for hiring county convicts, without a stipulation therein that the contract shall end if the bond, in the opinion of the judge of probate, becomes insufficient, or if any convict is treated cruelly or inhumanly by the hirer or his employe. Whenever the board of inspectors shall notify the governor that convicts, who have been sentenced to hard labor for the county, should be removed from the place where they are at labor, or from the control of the person who has them hired, it shall be his duty to order the probate judge of the county where said convicts were convicted to remove them from such place, or to annul such contract, as the case may be; and any probate judge neglecting or refusing to obey such order shall be liable to impeachment and removal from office, as provided for in other cases. Crim. Code 1886, § 4591. The convicts in question were undoubtedly county, as distinguished from state, convicts, having been duly sentenced to hard labor for the county. They had also been "hired out by the court of county commissioners," although employed by the hirer, Lovelace, to work the public roads, under the contract which he had made with the county officials to prosecute this work for a stipulated compensation and for his own private gain. They were none the less hired out by the county because hired out under contract to work certain public roads of the county. It was presumptively the duty, therefore, of the board of inspectors, to visit these convicts thus hired out, to inquire into their treatment and management, and to make a report as to these matters to the probate judge of Jefferson county; and also to notify the governor as to their best judgment, in reference to the propriety of removing them from the place where they were at labor, owing to unhealthfulness or other good reason, or from the control of Lovelace, unless it is shown that this general law has no application to Jefferson county, by reason of its repugnancy to special legislation applicable to this county. Two special acts are relied on to support this contention,-the act approved February 17, 1885, (Acts 1884-85, pp. 709, 710,) and the later act of February 18, 1887, (Acts 1886-87, pp. 818-821,) -both of which relate to the working of the public roads in Jefferson county by contract, with the use of the county convicts sentenced to hard labor for that county. The former act provided for the letting out to contract, by the court of county commissioners, of the work on certain public roads in the county, and authorized the court, in their discretion, to hire said convicts to the contractors who might undertake the work. The latter act made it mandatory on the court of county commissioners to employ all male convicts, sentenced to hard labor for the county, to work on the public roads of the county. It also authorized them to appoint "a superintendent of public works," whose duty it is, among other things, to faithfully carry out the orders of the commissioners' court; to see that the convicts labor efficiently; that they have proper food, clothing, shelter, and medical attention, and are not overworked or maltreated; and generally to exercise a superintendence over the work and the convicts. It is also made the duty of the county commissioners to see that these convicts are well fed, clothed, and humanely treated, and to this end each one of them is required to visit the convicts at least once in every 30 days. Acts 1886–87, p. 818. The maltreatment of any convict, either by the superintendent, hirer, or other person having charge of convicts, is made a punishable misdemeanor by special reference to sections 4319 and 4320 of the Code of 1876, bearing on this subject. There are other provisions in the law having no special relevancy to the inquiry before us.

Do the provisions of this special legislation repeal section 4591, above set ́out, so far as concerns the county of Jefferson? Both laws, general and spe

cial, have in contemplation the promotion of a more humane treatment of the convicts. The legislation on this subject for the last 10 years has, from year to year, steadily been growing more rigid in its attempted correction of the evil of maltreating convicts. Chief among the remedies adopted for this purpose was the creation of the board of inspectors, whose duty it was to visit convicts for the purpose of looking after their condition and treatment. Code 1876, § 4536. The duties of these inspectors are dignified and enlarged by the act of February 22, 1883, the declared purpose of which was "to regulate the hiring and treatment of state and county convicts," (Acts 1882-83, p. 134;) and again, by the later act of February 17, 1885, further defining and regulating the convict system of Alabama, (Acts 1884-85, p. 187,) both of which statutes, in connection with previous legislation on the same subject, have been revised, codified, and re-enacted in the form in which they now appear in the present Code, (Crim. Code 1886, §§ 4585 et seq.) By section 14 of the act of 1882, one of the inspectors was required, at least quarterly, and oftener if required by the governor, "to visit the several places of confinement of convicts sentenced to hard labor for the county," and make the same examination as in the case of state convicts, and report the result to the probate judge. By the act of 1885 (section 18) the inspectors, it was declared, should "not be required to inspect convicts hired and retained in the county of their conviction," but this section seems to have been entirely omitted, and thereby repealed by such omission from the present Code. The present contract of hiring was entered into on December 31, 1887, six days after the present Code went into effect.

The general law, under this state of facts, always governs, if it is applicable to the case, and is not repugnant to the special law as to the particular point under consideration. We held, for example, in Jackson v. State, 76 Ala. 26, that in organizing a jury, under the provisions of a special law applicable to certain counties, the court would follow the general law governing the organization of juries as to any point not inconsistent with the special law, and not provided for by it. Both laws may be permitted to stand together, except where a direct repugnancy exists between them, and the one only repeals the other to the extent of such repugnancy. A repeal by implication will not be favored. Cook v. Meyer, 73 Ala. 580; Faust v. Mayor, etc., 83 Ala. 279, 3 South. Rep. 771. A statute, however, intended as a revision of the entire subject-matter, and as a substitute for previous legislation on the subject, will be held to be a repeal of former statutes. Scott v. Simons, 70 Ala. 353. The present Code provides that "all laws of the state and rules of the board of inspectors, in regard to state convicts, shall also apply to county convicts, except as otherwise provided by law." Crim. Code 1886, § 4585. So the general law, it is true, provides that "all convicts sentenced to hard labor for the county shall be under the direction and control of the court of county commissioners, when worked or hired in the county where convicted, but otherwise they are to be under the superintendence and control of the board of inspectors of convicts." Code 1886, § 4586. The special act of February, 1887, also puts the Jefferson county convicts under the control and superintendence of the court of county commissioners, and for this purpose gives them, as we have seen, the power to appoint a superintendent of public works. The argument based on this right of control and duty of supervision on the part of the court of county commissioners is that it excludes any right or duty of supervision on the part of the board of inspectors, and all interference on the part of the governor on any ground whatever. This would make the right of control by the commissioners, over convicts sentenced and worked in their county, to be supreme, and without condition or limitation. Such is not, in our opinion, the intention of the general assembly, as disclosed by construing all the parts of these laws together, and giving to each clause of both laws its full operation. We find no difficulty in giv