Brewer v. Baxter , 41 Ga. 212 ( 1870 )

WARNER, J.

The only question presented on the argument of this case is, whether the paper writing set forth in the record is a deed or testamentary paper. The Court below held it to be a deed, and that is assigned for error here. A paper having the formalities of a deed may, notwithstanding, be a will. In determining whether an instrument be a deed or a will, the Court will not consider what the maker believed it to be, but what, in point of law, it is. The intention of the maker as to the character of the estate conveyed, is the criterion by which the Court will determine whether a given paper is a deed or a will, and if the intention gathered from the whole paper is, that the estate is not to pass, or the instrument to take effect until his death, it is a will and not a deed. Hester v. Young, 2d Kelldy’s Reports, 31. The paper writing set forth in the record, conveys only such of the described property as the maker thereof “may die possessed ofno present interest in the property was conveyed to the three sons, and until the death of the maker of the instrument, no one could know what portion of the property described therein he would die possessed of. Consequently, the instrument conveyed only such portion of the described property as he might be possessed of at the time of his death, and is, in law, a testamentary disposition of the property, to take effect at the death of the maker of the instrument, and if legally executed, may be proved as such in the proper Court.

Let the judgment of the Court below be reversed.