Owen v. Smith , 91 Ga. 564 ( 1893 )

Bleckley, Chief Justice.

1. The instrument to be construed shows on its face that it was made in consideration of ten dollars and of love and affection. It shows also that future services to be rendered by the grantee to the grantor were contemplated as a part of the consideration. It is certainly doubtful whether the instrument is testamentary or not. Some of its language imports a present conveyance with the reservation of a life-estate, and some indicates a purpose to postpone the vesting of title until the death of the grantor. We think the trial court adopted the safer and better construction in holding that the instrument was a deed and not a will. It is manifest that the maker did not intend to confer a mere bounty but ex-pectecl to receive some compensation for the conveyance, in the way of services rendered to her and to be rendered as long as she lived. It is equally manifest that she intended the grantee to be owner of the property at some time, and that she intended to retain possession and a supervision over the control and use of it during her own life. A reasonable supposition as to her real intention is that an interest was to pass to him at the time of the delivery of the deed, with a postponement only of the possession and use until she should be dead.

2. After holding the instrument to be a deed, the court was not bound to give in charge to the jury anything whatever as to the law of testamentary capacity. The capacity in question was of a higher order, and while the court in expounding its requisites might have referred, not improperly, to the lower capacity requisite to make a will, the refusal to do so was not erroneous.

3. The consideration being a mixed one consisting in part of love.and affection and in part of services, to say nothing of the ten dollars expressly mentioned, any disproportion between the value of the services and the value of the property conveyed would raise no presumption against the capacity of the grantor, or against the good faith and fair dealing of the grantee. Any such disproportion or inadequacy would be fully covered by the other part of the consideration, namely love and affection. That would be sufficient to uphold the whole conveyance irrespective of the value of the property. Nor would this part of the consideration be vitiated or weakened by the fact that there was no blood relationship between the parties. The maker of the deed, Mrs. Smith, was the widow of the grantee’s father. During her husband’s lifetime she had put herself in loco parentis to this bastard son, and after his death had so continued. According to the evidence, there was between them the regard and affection of parent and child. This being so, she could make a deed of gift to him the same as if he were her own offspring.

4. We have carefully examined the evidence and the whole charge of the court as given. In view of these, there was no error in refusing to charge as requested, no matter whether the several requests be considered separately or collectively. In some respects the evidence was conflicting, but the jury settled the conflict and upheld the deed. The verdict was warranted, and there was no error in refusing a new trial.

Judgment affirmed.