Bray v. McGinty

• Decision Date: 23 July 1894
• Citation: 21 S.E. 284,94 Ga. 192
• Parties: BRAY et al. v. McGINTY et al.
• Court: Georgia Supreme Court

21 S.E. 284

94 Ga. 192

BRAY et al. v. McGINTY et al.

Supreme Court of Georgia

July 23, 1894

Syllabus by the Court.

Although most of the phraseology in the premises of a deed of gift conveying land, and all of that used in the habendum, be such as a person skilled in conveyancing would rightly use to pass an estate in fee simple, and the same, if standing alone would be wholly inconsistent with an intention to convey a less estate to the donee, yet where the concluding words of the premises were, "Then, if the said [donee] should die, the same to go to his children", the effect of the deed as a whole, construing all its language together, was to create an estate in the donee for his life only, with remainder in fee to his children. The same construction is applicable to a like deed in which the concluding words of the premises were, "Reserving the use myself during my life, and, if the said [donee] should die, to go to the children,"--the donee in each instance having living children at the date of the gift, and it being admitted that these children were the persons referred to by the donor. As it is evident that each of the deeds was drawn by an unskilled person, there is no probability that the comprehensive technical language employed was used in its technical sense; and although, if interpreted in that sense the words of the deed would be repugnant, it is manifest that there was no repugnancy in the intention, the purpose being that the donee's children should succeed to his estate and not that his heirs at law should take it by inheritance. If this was not the intention, there could be no rational object in mentioning the children, or providing for them to take at all.

Error from superior court, Warren county; George F. Gober, Judge.

Action by J. M. Bray and others against Myrtle McGinty and others to recover land. There was judgment for defendants, and plaintiffs bring error. Reversed.

Glenn & Slaton and H. M. Holden, for plaintiffs in error.

Jos. Whitehead, for defendants in error.

LUMPKIN J.

W. A Bray, J. M. Bray, and Mrs. Tuck, the children of Richard L. Bray, deceased, brought an action against Myrtle McGinty and her guardian for the recovery of a tract of land. At the trial it appeared that on the 15th day of February, 1847, Lucy Bray, in consideration of natural love and affection for Richard L. Bray, executed and delivered to him a deed conveying to him, his heirs and assigns, a tract of land therein described, and certain slaves, the premises concluding with these words: "Reserving the use myself during my life, and, if the said Bray should die, to go to the children." In the habendum clause it was recited that Richard L. Bray, his heirs and assigns, were to have and to hold the property conveyed "to his and their own proper use, benefit, and behoof, forever, in fee simple." Afterwards, on the 26th day of January, 1849, Lucy Bray, in consideration of natural love and affection for Richard L. Bray, executed and delivered to him another deed conveying to him, his heirs and assigns, the same tract of land and the same slaves, in the premises of which deed the following words occur: "Then, if the said Richard L. Bray should die, the same to go to his children." The habendum clause of this deed was, in substance, the same as that contained in the first deed. The plaintiffs were the only children of Richard L. Bray at the time either of the deeds were executed, and were his only children at the time of his death. They are "the children" referred to in the deeds executed by Mrs....