West v. Wright , 1902 Ga. LEXIS 385 ( 1902 )

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, 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 cases 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 or enjoyment by the grantee till after the death of the grantor. In Dismuke 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 concur ring, except Lewis, J., absent, and Little, J., dissenting.