Sperber v. Balster

• Decision Date: 28 February 1881
• Citation: 66 Ga. 317
• Parties: Sperber. vs. Balster et al.
• Court: Georgia Supreme Court

66 Ga. 317

Sperber. vs. Balster et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

Wills. Deeds. Jurisdiction. Evidence. Before Judge Fleming. Effingham Superior Court. November Term, 1880.

Balster et al. brought ejectment against Sperber et al. The case was dismissed as to the others, and proceeded against Sperber alone. Plaintiffs claimed as heirs at law of Kohler, deceased; defendant claimed under the following instrument:

State of Georgia—Effingham County.

This Indenture made this the eleventh (11) day of February, 1880, between Aagust Kohler of the first part, of the county of Effingham, and Sophestina Sperber of the second part, of said county above mentioned, witnesseth that the said August Kohler for and in consideration of services rendered him by the said Sophestina Sperber as nurse in his last sickness, and for her faithful attendance toward me, August Kohler, for the last three years; and now I, August Kohler, for the services rendered by the said Sophestina Sperber to me, make this my deed of gift to her, which is hereby set forth in the schedule below. I, August Kohler, do grant, give, bargain and convey, first, all that tract and parcel of land, located in Effingham county, State of Georgia, and lying near No. 2 Station, C. R. R., Eden, Georgia, and said to contain by resurvey six hundred and fifty (650) acres, and bounded North by lands of Waiver estate, East by Big Ogeechee River and Henry E. Smith; South, Bothwell and Harvey; West, Big Ogeechee River and Henry E. Smith. To have and to hold as her right and property, to her heirs and assigns. Said deed of gift to be of full effect at my death, together with all the live stock, cattle, hogs, mules, poultry and all other live stock that may be found on said premises, together with all said premises. I also give to the said Sophestina Sperber, all my household and kitchen furniture; also all bedding, together with all plantation tools. To have and to hold the above said premises, together with all buildings, dwelling-house, kitchen, outhouses, to the said Sophestina Sperber, her heirs and assigns in fee simple; and the said August Kohler will, and his heirs and executors and administrators shall, the said property to the said Sophestina Sperber, executors and administrators, forever warrant and defend against the lawful demands of all persons whatever. In testimony whereof the said August Kohler has set his hand and seal, this the day and year above written; further, the said Sophestina Sperber is to have and to hold all the furniture that is brought in the house or on the place in the year 1880, and all that may be brought on the place or in the house any time after; further, the said August Kohler has hereunto set his hand and seal, this February 11th, 1880.

August Kohler, [L.S.]

J. E. Crawford, witness.

Aaron Branch, his x mark, witness.

Signed in presence of me, this February 11th, 1880.

Allrn Crawford, J. P., 10th D. G. M.,

Effingham county, Ga.

This instrument was tendered in evidence as a deed, but was rejected by the court, on the ground that it was testamentary in its character, and could not be put in evidence until it had been probated. After verdict for theplaintiffs, defendant moved for a new trial, which was refused, and defendant excepted.

R. R. Richards, for plaintiff in error.

Lester & Ravenel, for defendant.

Jackson, Chief Justice.

I. But two questions are before us in this case; first, is the paper offered in evidence to show title out of decedent, and therefore out of his heirs, a deed, or is it a will; and secondly, if a will, can it be proved so as to pass title without regular probate before the court of ordinary?

But for the case in 31 Ga., 720, we should hold that the first question did not admit of argument. For though there be several formal indicia of a deed in the paper, yet construing the whole instrument together and looking for the intention of the grantor to pass a present estate in the land on the making the deed, or not until the donor's or maker's death, or his intention to have it take effect at once or at death, it would seem perfectly clear that he meant it to take effect at death. He says " said deed of gift to be of full effect at my death, together with all the live stock, cattle, hogs, mules, poultry, and all other live stock that may be found on said premises, together with all said premises."

These words show the intention of the maker to convey what would be on the premises at his death, and to have his gift of the land to go into effect at the same time. The case in the 31st Ga., however, rules that a prior gift of the...