White v. Hopkins

• Decision Date: 31 October 1887
• Citation: 80 Ga. 154
• Parties: White, administrator. vs. Hopkins.
• Court: Georgia Supreme Court

80 Ga. 154

White, administrator. vs. Hopkins.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Deeds. Written instruments. Wills. Construction. Before Judge Lumpkin. Madison superior court. March term, 1887.

Reported in the decision.

J. J. Strickland, for plaintiff.

A. S. Erwin, K. H. Kennebrew, H. H. Carlton and D. W. Meadow, for defendant.

Simmons, Justice.

J. H. White, administrator, brought ejectment against Lewis Hopkins, the defendant in error; and on the trial thereof the jury found in favor of the plaintiff. A motion for a new trial was made by the defendant upon the several grounds mentioned therein, which was granted by the court below; and the plaintiff excepted and brings the case here for review.

The only question for us to determine in this case is, the proper construction of the paper offered in evidence by the defendant below, and ruled out by the court. It is a paper in the nature and form of a deed, made on the 11th of February, 1882, between Lemuel Hopkins, the intestate of the plaintiff in error, and Lewis Hopkins, both of Madison county; the consideration of the deed or paper being for the services of Lewis Hopkins, his wife and children, "in taking all necessary care of his person and dwellinghouse, and doing his cooking, washing and other necessary things to be done in housekeeping, taking care of the stock on the plantation and carrying on the farm of said Lemuel Hopkins, and making all necessary repairs on the same.'' For these considerations, the deed recites that he has

" granted, bargained, sold, aliened, conveyed and confirmed, unto the said Lewis Hopkins, his heirs and assigns, all that tract of land (107 acres, described in the instrument), to have and to hold the said bargained premises, with all the rights and appurtenances thereuntoappertaining, to the only proper use, benefit and behoof of the said Lewis Hopkins, his heirs, executors, administrators and assigns, in fee simple, subject to the before mentioned services of the said Lewis Hopkins and his wife and children, and the title to the above described tract of land to still remain in the said Lemuel Hopkins for and during his lifetime, and at his death to immediately vest in the said Lewis Hopkins in case he and his family faithfully perform their part of the contract; but in case the said Lewis Hopkins and his family and his wife and children fail to carry out their obligation, then and in that event title is not to vest in said Lewis Hopkins, but to remain in said Lemuel Hopkins and his heirs and assigns. And the said Lemuel Hopkins the said bargained premises unto the said Lewi3 Hopkins, his heirs, executors and administrators, and against all and every person or persons, shall and will warrant and forever defend, by virtue of these presents."

Signed, sealed and delivered in the presence of two witnesses; one of them a justice of the peace.

1. The question is, is this instrument a deed or a will? In order to determine that question, it is necessary for us to ascertain the intention of the maker, if we can do so, from the reading of the whole paper together. It is the duty of courts to construe instruments of this kind in such manner as to carry out the intention of the maker, if possible. The true test to determine whether the instrument is a deed or a will is, whether it is to take effect immediately, or to take effect only after the death of the maker If it is to take effect after the death of the maker it is a will; if it is to take effect immediately, or if it conveys a present estate, it is a deed. Taking this rule for our guidance, let us look at this instrument and determine from it whether it conveys a present estate and is to take effect immediately, or whether it is to take effect after the death of the maker.

It is in the form of a deed; it commences as deeds ordinarily commence, —" this indenture, " etc.; it recites a valuable consideration, the services of Lewis Hopkins, his wife and children, for and during the lifetime of the said Lemuel Hopkins, in taking care of his person, etc.; and for these services, he recites that he has granted, bargained, sold, aliened, conveyed and confirmed, unto the said Lewis Hopkins, and to have and to hold the said bargained premises, etc.; it then warrants the title to the land, and recites that it was signed, sealed and delivered, and was witnessed and attested by two witnesses, one of them a justice of the peace. This, in our opinion, conveys an absolute title from the grantor to the grantee. It conveys a...