to their true boundary, and that before making the improvements, if any, by defendant which he claims to have made he had an equal opportunity to ascertain the facts but failed to do so, he cannot invoke the doctrine of equitable estoppel. The evidence in the record is not as satisfactory as we would like, but taken in connection with the omission in the instruction, equity and good conscience require a reversal of the judgment, and that the cause be remanded for a new trial, and it is so ordered. Reversed. POTTER, J., and BLYDENBURGH, J., concur. WATTS v. LAWRENCE. (No. 959; Decided Dec. 18, 1919; 185 Pac. 719.) WILLS-TESTAMENTARY CHARACTER OF INSTRUMENT-DEED CONVEY- OF OF 1. A deed of warranty in due form, delivered in the life time of the grantor, but directing payments by grantee to persons therein named, within one year after decease of grantor, held, not testamentary in character. 2. The usual test applied to determine whether an instrument is a deed or a will is, whether or not it passes a present interest or estate. If it creates or vests in the grantee a present estate, even though that estate be one which cannot be enjoyed until the death of the grantor, it is a deed. 3. A deed from a mother to her son in form a warranty deed, directing that the grantee shall, within one year after grantor's death, pay certain sums to certain persons, "and upon filing receipts from the above-named persons, then this deed to be of full force and effect, otherwise to be null and void," held, a deed creating a present interest in the grantee at the time of its execution. 4. In an action to determine the right to money paid by a municipality in condemnation of realty alleged to have been granted by plaintiff's decedent to defendant, but erroneously described in the deed it was not necessary for the trial court, in determining that title passed under the deed, to decree formal reformation to correct the description in the deed, so as to include the land in controversy. 5. Where land deeded by plaintiff's decedent to defendant was condemned by a municipality, and the condemnation money placed in the hands of a stakeholder pending a determination of the rights of the parties, presentation of a claim to the executor was not a condition prerequisite to the commencement of suit to recover such money; the owner of the land being the owner of the condemnation money. 6. A defendant's failure to raise the statute of limitations either by demurrer or answer constitutes a waiver of the defense. 7. In a suit to recover money deposited with a stakeholder in payment for land condemned by a municipality, title to the land being in controversy as between defendant and plaintiff, under a deed directing plaintiff to make certain payments after the grantor's death, plaintiff, having alleged that he was the absolute owner of the money, was under no necessity of alleging compliance with the directions of the deed as a condition precedent. ERROR to the District Court, Laramie County: HON. JOHN R. ARNOLD, Judge. Ray E. Lee, for plaintiff in error. Plaintiff below did not present its claim to the administrator before suit; this is a pre-requisite to recovery by action (5616 C. S.; O'Keefe v. Foster, 5 Wyo. 343: Snyder v. State, 5 Wyo. 318); the petition does not allege such presentation nor disallowance; there is no presumption of rejection (O'Keefe v. Foster, supra, Morse v. Steele, 26 Pac. 693: Pratt v. Hunt, 41 Pac. 12; Bank v. Charles, 24 Pac. 1019; Burke v. Maguire, 98 Pac. 21; Willis v. Booth, 91 Pac. 759) there was an error of description in the deed which was not reformed by action; this should be fatal to recovery (5623 C. S.); reformation sought in the amended petition comes too late and, moreover, there was no evidence of mutual mistake to justify a reformation (Stoll v. Nagle, 15 Wyo. 86; Grieve v. Grieve, 15 Wyo. 358); the intention of the parties governs in construing a deed (Wolfe v. Scar borough, 2 O. St. 361; Banlos v. Ash, 19 Ill. 187); the instrument must be construed as a whole (Hamner v. Smith, 22 Ala. 433; Bruensmann v. Carroll, 52 Mo. 313); effect must be given to the entire instrument (Barnes v. Haybarger, 53 N. S. 76); written language inserted will prevail over the printed form of a deed (McNear v. McComber, 18 Iowa 12; Reed v. Hatch, 55 N. H. 327), and words given their natural meaning (Bradshaw v. Bradbury, 64 Mo. 334); there was failure to prove performance of conditions precedent (Stockton v. Weber, 98 Cal. 433, 33 Pac. 332); payments directed by the deed are a condition precedent (Re. Jones, 123 Mich. 505, 48 L. R. A. 580); unless the petition avers performance of conditions precedent, there can be no recovery (Albers v. Co., 66 N. W. 1040; Weeks v. O'Brien, 36 N. E. 185); the instrument recites a nominal consideration, a circumstance favoring forfeiture, unless conditions are shown to have been performed (70 Am. St. Rep. 731, 58 O. St. 67; 50 N. E. 99); if the instrument was not delivered in the life time of the grantor, a bona fide purchaser could take no title (Stone v. French, 37 Kan. 145. 14 Pac. 530); failure of delivery by the maker in her life time gives the instrument testamentary character; but in the present case the instrument is void as a will because improperly executed; grantor died with the deed in her possession, which is strong evidence of no delivery (Vrseland v. Vrseland, 48 N. E. Eq. 56); ignorance of mistake in description in a deed is no excuse (Foster v. Manefield & Coldwater R. 146 U. S. 88; Netzel v. Co., 65 Fed. 23); there can be no reformation without a showing of meritorious consideration (Pomeroy's Eq. Rem. 679); admissions alone are insufficient to establish a claim against an estate (Clark v. Roberts Estate, 87 Pac. 1077); the covenant of seizin was broken when made (Abbott v. Allen, 14 Johns. (N. Y.) 253, 7 Am. Dec. 554; Adams v. Conover, 87 N. Y. 422, 41 Am. Dec. 381; Downer v. Smith, 38 Vt. 464, 76 Am. Dec. 148; Clark v. Conroe, 38 Vt. 471; Clement v. Bank, 17 Atl. 717; Brandt v. Foster, 5 Cl. (Iowa) 295; Van Hagner v. Van Nostrand, 19 Iowa 427; Zent v. Bicken, 54 Iowa 525; Maupin on Marketable Title, 259, note 6); the statute of limitations ran from the date the covenant was broken (Jenkins v. Hopkins, 9 Pick. (Mass.) 542); the pleadings of defendant in error are insufficient in not alleging positive facts (Hazard Co. v. Volker, 3 Wyo. 189); the Court should give effect to all parts of the instrument (Balch v. Arnold, 9 Wyo. 27); it should be enforced as made by the parties (Phillips v. Hamilton, 17 Wyo. 41). Kinkead & Henderson, for defendant in error. Defendant in error bases his claim upon ownership of the land; want of performance of conditions precedent cannot be urged for the first time on appeal; it was unnecessary to ask for a reformation of the instrument; the contention as to the statute of limitations is without merit, as it was not pleaded below (Hart v. Walton, 99 Pac. 719); only claims arising on contract must be presented to an administrator before suit (5618 C. S.); the rule does not apply to actions for the enforcement of liens (5624 C. S.); the evidence established a delivery of the deed (Walter v. Kressman, 25 Wyo. 293; 169 Pac. 313; 3623 C. S.); parol evidence is admissible to show the intention of the parties (Pring v. Swarm, 151 N. W. 734; Balch v. Arnold, supra; Albany v. Usel, 157 Pac. 204; Patch v. White, 117 U. S. 210); the deed was an executed contract (Collier v. Carter, 91 S. E. 551 Phillips v. Phillips, 186 Ala. 545; Hunt v. Hunt, 119 Ky. 39, 68 L. R. A. 180; Ferris v. Neville, 127 Mich. 444, 54 L. R. A. 464); a deed to take effect on the death of the maker where there are no other indicia to prove the intention of the grantor, may be construed as a deed or a will to prevent its becoming inoperative; the apparent intention of the parties must govern; even had the instrument provided that it should not be operative until the death of the grantor, that would not have determined the testamentary character of the instrument (Iness v. Potter, 153 N. W. 604; Pyle v. East, 155 N. W. 283); a deed becomes operative in praesenti even though enjoyment of the estate is postponed until the death of the grantor (Thomas v. Williams, 105 Minn. 88, 117 N. W. 155); a voluntary conveyance is good against the grantor's heirs, unless obtained by fraud or coercion (13 Cyc. 530); any valuable consideration will support a conveyance of land (13 Cyc. 533); the fact that the instrument was found among the effects of the grantor's, is of no importance on the question of delivery (Walter v. Kressman supra); the deed was signed and sealed by grantor and recorded by plaintiff and no other ceremony was required to make it effective (3623 C. S.); the case is on all fours with Meyer v. Stortenbecker, 165 N. W. 456); the right of a decedent to dispose of property as he may desire cannot be questioned (Cook v. Cook, 165 N. W. 402); the statute of limitations cannot be raised under a general denial (Bank v. Bank, 11 Wyo. 32; Marks v. Board, 11 Wyo. 482; Fidelity Co. v. Parker, 20 Wyo. 29); the statute of limitations would not run until grantor claimed an interest adverse to grantee (Cook v. Elmore, 25 Wyo. 393). BURGESS, DISTRICT JUDGE. This is a case brought here by Clyde M. Watts, Administrator of the estate of Mary A. Edwards, with the will annexed, defendant below, by proceedings in error to review a judgment rendered by the District Court of Laramie County adjudging the defendant in error, Charles P. Lawrence, plaintiff below, to be the owner of a special fund held by the Stock Growers' National Bank as stakeholder and to which the plaintiff in error had asserted a claim. On March 29, 1905, Mary A. Edwards, a widow, signed, executed, and delivered to her son, Charles P. Lawrence, defendant in error herein, a warranty deed describing the following lands situated in a then portion of Laramie County, Wyoming, to-wit: The east one-half of the northwest quarter, the southwest one-quarter of the northeast one-quarter, and the northwest one-quarter of the northwest one-quarter of section twenty-six in township fourteen north of range seventy west. Through error, the description included the northwest quarter of the northwest |