West v. Wright

• Decision Date: 24 April 1902
• Citation: 41 S.E. 602,115 Ga. 277
• Parties: WEST et al. v. WRIGHT.
• Court: Georgia Supreme Court

41 S.E. 602

115 Ga. 277

WEST et al.

v.WRIGHT.

Supreme Court of Georgia.

April 24, 1902.

DEED—CONSTRUCTION.

An instrument attested as a deed, and in all respects in the form of a deed, should, though it contains the words, "This deed to take effect at my death, " be treated, not as a will, but as a conveyance passing title in præsenti, with right of possession postponed till the death of the maker. Little, J., dissenting. (Syllabus by the Court.)

Error from superior court, Greene county; H, L. Brinson, Judge.

Action between Jennie West and other? and J. Wright. From a judgment, West and others bring error. Affirmed.

Geo. A. Merritt and J. P. Brown, for plaintiffs in error.

J. B. Park, Jr., for defendant in error.

LUMPKIN, P. J. This case turns upon the construction of an instrument of the nature indicated above. The consideration expressed in the paper was "love and affection." The question is, should the same be treated as testamentary, or be given effect as a deed? This court has often been embarrassed in passing upon similar questions arising upon the construction of instruments more or less like that now under consideration. In Wynn v. Wynn, 112 Ga. 214, 37 S. E. 378, there is a large, but not exhaustive, list of Georgia cases, in each of which it was necessary to decide whether a given instrument was testamentary in character or operative as a deed. This list includes many eases in which the instruments were held to be wills, and many in which they were declared to be deeds. An examination of these cases, and of others of like nature, with which this court has dealt, will show that the numerous adjudications are not in complete harmony. There has not been so much difficulty as to the rule for testing the character of the documents, but the principal trouble has arisen in applying it to the varying phraseology therein employed. The original tendency was towards holding that papers indicating an intention to postpone enjoyment by the persons claiming to be grantees till after the death of the persons executing the papers should be classed as wills. This tendency In time yielded to another, namely, that it was the sounder policy in a case of doubt to declare that the instrument was a deed, and thus make it effectual, when holding it to be testamentary would, for want of the requisite number of witnesses, render it nugatory. The true test, of course, is the intention of the maker, which is to be gathered from the terms of the paper. In Moye v. Kittrell, 29 Ga. 677, we find the first clear manifestation of the tendency last above noted, and the spirit of the decision then rendered has since been steadily regarded as controlling. On page 680 Judge Lumpkin said: "The form of the instrument is that of a deed, and the form is evidence of the intention of the maker." Why should even the most ignorant man adopt the form of a deed if he intended to make a will? Almost any person, however illiterate or uninformed, would, if he desired to execute a real will, adopt for expressing his purpose language altogether unsuited for a present conveyance. Where the form of a deed is actually employed, such phrases as, "after my death, " "vest at my death, " "take effect at my death, " and the like, may well be construed as merely designed to postpone possession enjoyment by the grantee tillafter the death of the grantor. In Dismukes v. Parrott, 56 Ga. 513, Judge Bleckley laid great stress upon the idea that in a doubtful case an instrument in form a deed, and which would be effectual as such, should not be declared testamentary, and thus made void. It is to be noted that no one of the previous cases is absolutely binding as authority, one way or the other, in the case now before us, for in no one of them was the instrument exactly like that now to be construed. A careful examination of them all constrains a majority of us to adhere to the modern tendency of dealing with papers of this character; and as a result, we hold that the trial judge erred in not treating the paper in question as a deed passing a present estate, with possession postponed till after the death of the maker.

Judgment reversed. All the justices concurring, except LEWIS, J., absent on account of sickness, and LITTLE, J., dissenting.

LITTLE, J. (dissenting). The instrument which is submitted for our consideration is in the following form:

"Georgia, Greene County. This indenture, made this 20th day of October, eighteen hundred and ninety, between Jane West of the said state and county, of the first part, and Olly, Lovey, Julia, Janie, and Mollie West, of said state and county, of the other part, witnesseth: That the said Jane West, for and in consideration of the natural love and affection she has for her daughters, said Olly, Lovey, Julia, Janie, and Mollie West, said Jane West hereby gives, grants, and conveys to the said Oily, Lovey, Julia, Janie, and Mollie West, their heirs and assigns, all that tract or parcel of land No. 3, the tract on which I live, and joining lands Trout, Jas. L. Brown, and others; also the tract recently purchased from W. G. Durham, which is bounded by Trout place. Jas. L. Brown, San-ford road, and my home tract,...