Johnson v. Yancey , 20 Ga. 707 ( 1856 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] 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 tbe lifetime of tbe maker ? Could lit interfere with tbe claims of creditors ?

In tbe case of Habergham vs. Vincent, (2 Ves. Jr. 204; S. C. 4 Bro. C. C. 355,) Mr. Justice Butter said, that tbe • cases bad established that a writing in any form, whether a ••deed, poll or indenture, if tbe obvious purpose is not to take .place till after the death of the person making it, shall oper.ate as a will; and that in one of the eases, 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.