Hughes v. Hughes , 135 Ga. 468 ( 1910 )

Fish, C. J.

An instrument attested as a deed' and duly recorded during the life of the maker, contained the following language: “Now, for the love, affection, regard and sympathy I have and bear for my affectionate wife, Sarah Hughes, I make, relinquish, and deed all my legal right in and to my homestead survey of pine land upon which I now reside, to her and in her own legal right and benefit.” Then followed a description and plat of certain land. Continuing, the language of the instrument was as follows: “And whereas I, the said Duncan Hughes [the maker], do make this deed and conveyance to my affectionate and beloved wife, the aforesaid Sarah Hughes, under the following conditions, to wit: If my wife, the said Sarah Hughes, should survive me, my desire and wish is for her to retain possession during her lifetime, and after her demise it is my desire and wish that our beloved daughter, Margaret Hughes, now remaining with us on the said premises and a member of our household, shall heir the a'bove-deseribed 215 acres with all the improvements now and which may be hereafter put upon the same,, to have arid to hold the same in her legal right '"against the claim of any one or more of the rest of my heirs or relatives, and against the claims of any and all other persons whatsoever.” Held, that the instrument was properly construed by the trial judge to be a deed. Isler v. Griffin, 134 Ga. 192 (67 S. E. 854), and cases cited.

(a) Accordingly, as the right of the plaintiff below for a recovery of the land in question depended upon the instrument above referred to being construed as a will and not as a deed, the same having been put in evidence by the defendant, the court did not err in directing a verdict for the defendant. Judgment affirmed.

All the Justices concur.