Johnson v. Yancey

• Decision Date: 30 November 1856
• Docket Number: N0. 136.
• Citation: Johnson v. Yancey, 20 Ga. 707, 65 Am. Dec. 646 (Ga. 1856)
• Court: Georgia Supreme Court
• Parties: Cornelius Johnson, administrator, &c, plaintiff in error. vs. Phebe Yancey, administratrix, &c, defendant in error.

20 Ga. 707

Cornelius Johnson, administrator, &c, plaintiff in error. vs. Phebe Yancey, administratrix, &c, defendant in error.

N0. 136.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1856.

In Equity, in Jasper Superior Court.Decision on demurrer, by Judge Hardeman, April Term, 1856.

The only question in this cause, was the character of the following instrument:

"Georgia, Jasper County, July 8, 1855.Due, at my death, to Haney Johnson, the sum of two thousand five hundred dollars, from the general fund of my estate, as a gift. his

LEWIS X YANCEY.

Test, Lewis D. Yancey, Jr. mark.

The condition of the above bond or obligation is such, that whereas, for the fidelity and obedience, as well as the natural love and affection that I have for my daughter, Haney Johnson, I donate, in the above manner, what I design for her at my death.Given under my hand and seal the day and year above written. his

LEWIS X YANCEY.

Test, Lewis D. Yancey, Jr." mark.

The Court below held this to be a testamentary paper.This decision is assigned as error.

W. A. Lofton, for plaintiff in error.

No appearance for defendant in error.

By the Court.— Lumpkin, J., delivering the opinion.

Is the paper executed by Lewis Yancey a deed, and operative as such?

The doctrine is now too well settled to need argument or authority to sustain it, that an instrument may be in the form of a deed—signed, sealed and delivered as such; still, if it discloses the intention of the maker respecting the posthumous destination of his property, and is not to operate until after his death, it is testamentary only.

Now this paper purports, palpably upon its face, to be the mode adopted by Lewis Yancey, of giving to Haney Johnson what he designed for her "at his death, "and which he directed to be paid "out of the general fund of his estate."

Was it not revocable in the lifetime of the maker?Could it interfere with the claims of creditors?

In the case of Habergham vs. Vincent(2 Ves. Jr. 204;S. C. 4 Bro. C. C. 355), Mr. Justice Butter said, that the cases had established that a writing in any form, whether a deed, poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will; and that in one of the cases, there were express words of immediate grant, and a consideration to support it as a grant; but as upon the whole, the intention was, that it should have a future operation after his death, it was considered as a will.

We think there can be no doubt that the judgment of the Circuit Court was correct.

WILL OR DEED."If it appear that the donor intended that the title to the property specified should remain in hint until his death, and then pass to the donee, it is a testamentary paper, whatever be its form.2 Vesey, Jr., 230-2.Speers (S. C. R.) 230. 2 Ga. Reports 31. 8 Ibid. 450. 10 Ibid. 506. 20 Ibid. 707."Daniel v. Daniel, adm'rs, V. Veal, 32 Ga. 592.

"a man who held title to a tract of land, his wife joining-him, executed a written instrument in the general form of a warranty deed, but conveying the land to a son in the following terms: The grantors have "granted, bargained, sold and conveyed, and do by these presents grant, bargain, sell and convey unto the said Joseph Prater, Jr.. his heirs and assigns at our death, free from any claim whatever of our other children, " the land described. The same instrument conveyed certain personalty to the same grantee, with the provision that possession should be postponed until the death of the grantors: Held, that as to the realty the instrument was testamentary in character. Civil Code, 53254; 2 Kelly 46;51 Ga. 239;20 Ib. 707;55 Ib. 369; 17 lb. 275 " Blackstock V. Mitchell, ex'r, 67 Ga. 768.

"The test whether a written instrument is a deed or is testamentary in its character is this: if the title vests eo instanti at the execution of the paper, it is a deed; but if the same is not to take effect until the death of the maker, it is a testament.2 Ga. 31: 20Id. 707;Civil Code of 1895, §3254;70 Ga. 152."Ward v. Campbell, adm'r, 73 Ga. 97 (1).

"In the following cases the instruments, though having some of the characteristics of a deed, have been held, nevertheless, to be testamen tary in character: Hester v. Young, 2 Ga. 31; Mallery 11.Dudley, 4 Ga. 52;Cravy v. Rawlins, 8 Ga. 450;Symmes v. Arnold, 10 Ga. 506;Johnson v. Yancy, 20 Ga. 707;Brewer v. Baxter, 41 Ga. 212;Arnold v. Arnold, 62 Ga. 628 (4);Sperber v. Balster, 66 Ga. 317;Blackstock -v. Mitchell, 67 Ga. 768;Johnson v. Sirmans, 69 Ga. 617;Ward v. Campbell, 73 Ga. 97;Barnes v. Stephens, 107 Ga. 436. In the following oases the papers were declared to be deeds: Moye V. Kittrell, 29 Ga. 677;Johnson v. Hines, 31 Ga. 720;Daniel v. Veal, 32 Ga. 589;Dismukes v. Parrott, 56 Ga. 513;Williams v. Talbot, 66 Ga. 127;Youngblood v. Youngbl...