Crawford v. Thomas , 150 Ga. 435 ( 1920 )

Beck, P. J.

(After stating the foregoing facts.) We are of the opinion that probate should have been refused to the instruments offered as the last will and testament of F. M. Crawford. After a careful study of the instruments we are satisfied that they are not testamentary in character, but are deeds. They are deeds in form; they are called deeds by the maker; and the evidence introduced on the trial tends to show that the maker intended to execute deeds. We are aware of the fact that in several cases decided by this court it has been said that it is sometimes difficult to decide whether a paper propounded as a will or offered in evidence as a deed is testamentary in character or whether it is a deed of conveyance. But the instruments in question here do not present as serious a difficulty as did those under consideration in some of the eases just referred to. It is true that the maker of the paper did not deliver them, and his failure to deliver prevents their being effectual as deeds. And, as has sometimes been said by this court, 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;' and the converse of the proposition has also been laid down. But we do not look upon this as a doubtful ease. The clause in the instrument providing that “This deed goes into effect at the death of me and my wife” will not suffice to determine the character of the instrument under consideration, nor to becloud the issue which we are to determine.

In the case of West v. Wright, 115 Ga. 277 (41 S. E. 602), it was said: “An instrument attested as a deed and in all respects in the form of a deed should, though it contains the words, ‘ This deed to take effect at my death/ be treated, not as 'a will, but as a conveyance passing title in presentí, with right of possession postponed till the death of the maker.” This proposition was laid down by the majority of the court, one Justice dissenting. In the majority opinion it is said: “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 ease 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, of 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.” See also Hughes v. Hughes, 135 Ga. 468 (69 S. E. 818), and Isler v. Griffin, 134 Ga. 192 (67 S. E. 854). A further discussion of the question involved in this case is rendered unnecessary by a consideration of the case of Wynn v. Wynn, 112 Ga. 214 (37 S. E. 378), and the numerous cases there cited. We have not overlooked the opinion in the case of Collier v. Carter, 146 Ga. 476 (91 S. E. 551), and the case from which the doctrine there laid down is deduced, where it.was said: “From the' great wealth of authorities thus gathered and analyzed the general agreement of the courts may be stated: An instrument which is in the form of a deed to take effect on the death of the maker, where there are no other indicia to prove the intention of the grantor, and the instrument can be held valid either as a deed or a will, the court will construe the instrument so as to prevent its becoming inoperative.” But in the present case the instrument bears upon its face all the characteristics of a deed of conveyance. It is called a deed;. is in the form of a deed; it has a consideration; and while this last fact would not necessarily render the instrument a deed, it is nevertheless to be given weight. And before, signing this paper the maker said expressly that he wished to execute deeds. And it is not to be overlooked that this paper does not take effect, according to the clause which we have recited, at the death of the maker, but it is stipulated in the clause referred to that “this deed goes into effect at the death of me and my wife.” It follows from what we have said above that the,judgment of the court admitting the paper to probate must be reversed.

Judgment reversed.

All the Justices concur._