Barnes v. Stephens

• Citation: 33 S.E. 399,107 Ga. 436
• Parties: BARNES v. STEPHENS et al.
• Decision Date: 25 April 1899
• Court: Supreme Court of Georgia

33 S.E. 399

107 Ga. 436

BARNES v. STEPHENS et al.

Supreme Court of Georgia

April 25, 1899

Syllabus by the Court.

A paper attested by more than two witnesses, and containing three clauses, the first of which, in the form of a deed of gift purports to convey title to land; the second of which declares the grantee shall have and hold such lands after the maker's death, together with certain described personal property, not referred to in the first clause, "the burial expenses and just debts of [the maker] to be paid first"; and the third clause of which declares that all of his other property of every kind shall be divided among certain other named persons designated as "heirs," calls this disposition of his property a "division," and then expressly declares all other "wills and conveyances" null and void,--is testamentary in character, and does not operate to convey any present title to the lands described in the first part of the instrument.

Error from superior court, Dawson county; J. J. Kimsey, Judge.

Action by John R. Stephens and others against W. J. Barnes. Judgment for plaintiffs. Defendant brings error. Reversed.

H. H Perry, for plaintiff in error.

H. H Dean, for defendants in error.

LITTLE J.

John R. Stephens and four others brought an action in the superior court of Dawson county against W. J. Barnes to recover certain lots of land in the Thirteenth district of Dawson county. The petition alleges that on the 29th day of April, 1884, Benson Stephens executed a deed conveying to his wife, Mary Stephens, a life estate in said land, with remainder to petitioners; that Benson Stephens died in the year 1885, and Mary Stephens died in October, 1895. The abstract of title sets out possession of the land by Benson Stephens for over 30 years, and a paper claimed to be a deed from Stephens to petitioners. The answer of Barnes admitted that he was in possession of the land, and the death of Benson Stephens and Mary Stephens, as alleged. Barnes averred that he had been in possession of the land since 1884, and went into possession under a deed executed by Benson Stephens and his wife on the 24th day of December, 1884, and that he purchased the same for a valuable consideration. The plaintiffs introduced an original paper, executed by Benson Stephens, as follows:

"State of Georgia, Dawson county. This indenture, made this, the twenty-ninth day of April, 1884, between Benson Stephens, of said state and county, of the one part, and Mary Stephens, the wife of Benson Stephens, of the same place, of the other part, witnesseth: That the said Benson Stephens, for and in consideration of the sum of one dollar, cash in hand paid, the receipt whereof is hereby acknowledged, and for and in consideration of the natural love and affection which he has and bears to her, his wife, has given, granted, and conveyed, and doth by these presents give, grant, and convey, to the said Mary Stephens, her heirs and assigns, all that tract or parcel of land situated, lying, and being in the Thirteenth district, first section, south half, of said county, known as 'Lot No. 316, three hundred and sixteen, (281) two hundred and eighty-one,' containing seventy acres, more or less, to a temporary line made by Benson Stephens to L. Q. Allen on the northwest corner of said lot; to have and to hold said lands, after the death of Benson Stephens, during her natural life or widowhood, together will all the household and kitchen furniture; the burial expenses and just debts of Benson Stephens to be paid first, if any; then to be equally divided between the heirs as follows: John R. Stephens, Daniel S. Stephens, Mary F. Dooley, Sarah E. Allison, and Harriett E. Hendrix, they being the heirs entitled to the above-named property at the death of said Benson Stephens. All the other property, including real and personal, except the above-named property, to be equally divided between the heirs before mentioned, it being considered by the said Benson Stephens that Lewis A. Stephens and Rebecca A. Smith have received their full share of all the estate of Benson Stephens according to the division which the said Benson Stephens now makes; and all other wills and conveyances prior to this date are null and void. In witness whereof the said Benson Stephens hath hereto set his hand and affixed his seal.

"Benson X (his mark) Stephens. (L. S.)

"Signed, sealed, and delivered in presence of:

"Henry C. Thompson.

"Wm. H. Boggs.

"Charles J. Thompson.

"M. Cox, N. P.

"Filed in office June 26th, 1884.

"Wm. H. Richardson, C. S. C.

"Recorded June 26th, 1884, Book D, page 702.

"William H. Richardson, Clerk, S. C."

This was followed by proof of possession of the land by Benson Stephens at the time he executed the paper, and that the defendant had notice of the paper before his purchase of the land. Defendant introduced a deed from Benson Stephens and Mary E. Stephens, wife of Benson Stephens, to W. J. Barnes, dated December 24, 1884, purporting to convey to W. J. Barnes, in consideration of $1,200, the lands described in the petition. The deed contained a warranty of title, and was recorded February 13, 1885. Defendant testified in his own behalf that he purchased this with other lands from Benson Stephens for $1,200, being the full value, and Stephens turned over to him all the papers connected with the land, including the paper introduced in evidence by the plaintiffs. Stephens then had this paper in his possession, and told witness that it was a paper which he had made to his wife and children, which was intended to pass the title, provided he made no other arrangement as to his property during his life; and that he had made none, nor had he delivered it to any one. Witness detailed at length the conversation with Stephens, in which the latter repeatedly said that the paper was intended to take effect at his death. M. Cox, one of the witnesses to the paper, testified that after the execution of the paper Benson Stephens brought it to him, and asked him to sign it. The paper was then in the possession of Stephens, who acknowledged that he had executed it. When witness had attested the paper, he returned it to Stephens who did not deliver it to any one in the presence of witness. Witness was a notary public, and Stephens said he desired the attestation of an officer. There was a verdict for the defendant, and the plaintiffs made a motion for a new trial on several grounds set out. The court granted the new trial, and the defendant excepted. The grant of the new trial was general, and we are to determine whether the court erred in setting aside the verdict and granting the new trial. A number of grounds are set out in the motion, which it is not necessary to review in detail. In the presentation of the case in this court, counsel for the plaintiff in error contended, among other things, that the paper upon which the plaintiffs in the court below relied as title was testamentary in its character, and did not operate to convey present title to the land. If this contention is sound, the case of the plaintiff must fall, and the verdict which was rendered would be the only one which could, under the law and facts, be rendered, and in that case the judgment of the court granting the new trial will be set aside, and the verdict allowed to stand, notwithstanding it was the first grant of a new trial.

Whether the paper is or is not testamentary is the only question necessary to be considered. Civ. Code, § 5585. A number of cases have, at different times, been presented to this court which involved the question as to whether a particular instrument was a deed, and conveyed title, or was testamentary in its character, and its operation postponed until the death of the maker. Necessarily, only general rules can be laid down for the determination of this question, as in almost every case the language of the paper to be construed is different, and the determination of the effect of a particular paper depends upon the language used, and the circumstances existing at the time of its execution. The effect of the delivery and execution of a deed is to convey a present estate, while a will is the legal expression of a man's wishes as to the disposition of his property after his death. It is declared by section 3254 of the Civil Code that no particular form of words is necessary to constitute a will, and that in all cases, to determine the character of an instrument, whether it is testamentary or not, the test is the intention of the maker from the whole instrument, read in the light of the surrounding circumstances. It is not our purpose, in determining the question presented, to make a general citation of the cases decided by this and other courts, because each case must depend on its own facts so far as the same are expressive of the intention by which the character of the instrument is to be tested. It is fair, however, briefly to refer to the effect which some of the characteristics of an instrument have, in determining whether a present estate was or was not intended to be conveyed at the time of its execution, and then consider certain of the cases adjudicated by this court to which reference has been made in the brief of counsel to support the contention that the paper in this case must be construed as a deed. In the case of Moye v. Kittrell, 29 Ga. 677, this court, in the opinion, said that the form of the instrument is evidence of the intention of the maker, and by putting it on record the maker manifested his purpose to part with the title to the property. Another rule laid down is that, where the words of the instrument are doubtful, the court will incline to that construction which supports the instrument. Owen v. Smith, 91 Ga. 564, 18 S.E. 527. The case of ...