AMERICAN
LAW REPORTS

ANNOTATED

VOL. 11

JOHN W. COLLIER, Admr., etc., of H. J. Collier, Deceased, Plff. in Err.,

V.
ORA LEE CARTER et al.

Georgia Supreme Court-February 15, 1917,

(146 Ga. 476, 91 S. E. 551.)

Deed to take effect at death effect.

1. Where an instrument in the form of and attested as a deed contains a clause that it is "to go into effect at the" signer's death, and where there is no other indication as to the intention of the signer, and the paper is duly delivered, it will be construed to be a deed postponing possession.

[See note on this question beginning on page 23.] Appeal - denial of continuance.

2. In view of the circumstances at- discretion in overruling the motion for tending the trial and the character of a continuance. the case, the court did not abuse his [See 6 R. C. L. 549.]

Headnotes by GILBERT, J.

ERROR to the Superior Court for Echols County (Thomas, J.) to review a judgment in favor of plaintiffs, and overruling a motion for new trial, in an action brought to recover possession of certain land. Affirmed. Statement by Gilbert, J.:

plaintiffs. The defendant moved Ora Lee Carter and Mrs. Jennie for a new trial, which was refused, Bell Carter brought an action of and he excepted. ejectment against John W. Collier, Upon the trial the plaintiffs inindividually, and as administrator troduced in evidence a warranty of the estate of H. J. Collier, de- deed from H. J. Collier to Ora Lee ceased. The verdict was for the Carter and Mrs. Jennie Bell Carter,

11 A.L.R.--1.

dated March 9, 1911, conveying the Cotton States L. Ins. Co. v. Edwards,
land in dispute. Among other 74 Ga. 220; Poppell v. State, 71 Ga.
things, the deed stipulated that it 276; Wright v. State, 18 Ga. 383.
was “to go into effect at the said H.

A continuance on account of the ab-
J. Collier's death." Two of the at-

sence of counsel is largely discretion

ary. testing witnesses swore that they

Loyd v. State, 45 Ga. 72; Whitley v. witnessed the deed at the request of

Clegg, 120 Ga. 1040, 48 S. E. 406; Coopthe grantor, and that the justice of

er v. Jones, 24 Ga. 474.
the peace who witnessed the instru-
ment died afterward. It appeared

Gilbert, J., delivered the opinion

of the court:
that about March 9, 1911, H. J.
Collier went to the home of the hus-

The decisive question in this case band of one of the plaintiffs, and

is whether the instrument quoted in while there delivered the deed to

the statement of facts shall be conMrs. Jennie Bell Carter, one of the

strued as a deed or as a will. Was plaintiffs, telling her, at the time

it intended to pass title to the propof delivery, to take the deed; that

erty in præsenti, with the right of he did not know when he would possession postponed, or was it to die; and he said: "Here is the

be purely posthumous in its operadeed; this is yours; take it and

tion? take care of it, and at my death the Under, the previous rulings of property will be yours."

this court, as well as the great She retained possession of this weight of modern authority in other deed continuously to the time of the jurisdictions, we think it clear that trial. The defendant, John W. the instrument is a deed, with the Collier, testified as follows: "I do right of possession postponed until not recognize that as H. J. Collier's the death of the grantor. The tensignature; it is not his signature, to dency of the earlier decision was to the best of my knowledge.”

construe instruments as testamenThis was the entire evidence for tary where the maker's intent apthe defendant.

peared in any way to vest title after Messrs. J. W. Haygood and Eldridge

his death, without regard to the Cutts, for plaintiff in error:

form of the instrument. Later a Where the evidence is not contra- more liberal rule was followed todicted as to the illness of counsel and ward giving to the instrument a his inability to attend, and as to his construction which would accord being the leading counsel, it is an abuse with the intention of the signer, and of discretion, or rather the court has which would uphold its validity. no discretion, but must grant a contin

Seals v. Pierce, 83 Ga. 787, 20 Am. uance. Bagwell v. State, 56 Ga. 406; Thomp

St. Rep. 344, 10 S. E. 589; Wynn son v. Hays, 119 Ga. 167, 45 S. E. 970;

v. Wynn, 112 Ga. 214, 37 S. E. 378; Waxelbaum Co. v. Atlantic Coast Line West v. Wright, 115 Ga. 277, 41 S. R. Co. 3 Ga. App. 396, 59 S. E. 1129.

E. 602; Brice v. Sheffield, 118 Ga. Mr. J. Munroe Bussell also for 128, 44 S. E. 843; Griffith v. Dougplaintiff in error.

las, 120 Ga. 582, 48 S. E. 129; Isler Messrs. J. G. Cranford and E. K. v. Griffin, 134 Ga. 192, 67 S. E. Wilcox, for defendants in error: 854; Hughes v. Hughes, 135 Ga. 468,

The instrument in question is a deed 69 S. E. 818; Pruett v. Cowsart, conveying title in præsenti, with the 136 Ga. 756, 72 S. E. 30; Mays v. right of possession postponed till after Fletcher, 137 Ga. 27, 72 S. E. 408. the death of the grantor.

The instruments in no two of the West v. Wright, 115 Ga. 277, 41 S. E.

cases just cited are identical, nor is 602; Isler v. Griffin, 134 Ga. 192, 67 S. E. 854; Brice v. Sheffield, 118 Ga.

the instrument in any one of them 128, 44 S. E. 843; Griffith v. Douglas,

identical with the instrument in the 120 Ga. 582, 48 S. E. 129.

present case. They are all suffi

. The continuance of cases because of ciently similar to establish the printhe absence of counsel is not favored. ciple already enunciated as the rul

(146 Ga. 476, 91 8. E. 551.) ing on the instrument construed An instrument which is in the form herein. That in the case of West of a deed, to take effect on the v. Wright, 115 Ga. 277, 41 S. E. 602, death of a maker, where there are is a substantial duplicate of the one no other indicia to prove the intennow under consideration. At least, tion of the grantor, and the instruit presents no material point of dif- ment can be held valid either as a ference in the clause under differ- deed or as a will, the court will conentiation. In the case of Isler v. strue the instrument so as to preGriffin, 134 Ga. 192, 67 S. E. 854, vent its becoming inoperative. (2) the writing recited that it was to Whether such an instrument is to take effect not only after the death be construed as a deed or a will deof the maker, but also “from and pends upon the intention of the after the death of my father and grantor as to the passing of a presmother, and not until then." This ent irrevocable interest, or whether was held to be a deed although pos- no interest should pass until after session was postponed to the con- the death of the grantor, and tingency of the maker's death, and whether the grantor, until then, also to the death of the father and should have the right to revoke the mother.

instrument. (3) The intention of In Phillips v. Phillips, 186 Ala. the maker of the instrument is to be 545, 65 So. 49, Ann. Cas. 1916D, ascertained from the whole, con994, the instrument construed con- strued together. (4) Looking to tained the language, "This deed not extraneous facts, the delivery of to take effect until after my death," the instrument is some evidence and it was held to be a deed. Som- that the same shall operate as a erville, J., said: "Courts have un- deed, although its terms provide dertaken in innumerable cases to that possession is postponed until prescribe the general tests by which after the death of the maker. the character of an instrument in The instrument in the present this regard is to be determined; but, case is in the form of a warranty while there seems to be a substan- deed. It is attested by two wittial uniformity of opinion as to the nesses and by an officer authorized general principles to be applied, the in express terms of the law to witcases themselves exhibit the utmost ness deeds. A will, to be valid, need contrariety in the particular con- not be witnessed by such an officer. clusion reached, even in the same This instrument was delivered on jurisdictions."

or about the date In the opinion many cases are of its execution, effect at deathcited to sustain the rule, and in the and has remained notes appended thereto in Ann. Cas. thereafter in the possession of one 1916D, 994, recent cases in many of the grantees. Looking further states are cited and discussed, deal- to extraneous evidence, one of the ing with the rules of law applicable witnesses swore that the grantor to the construction of an instru- made the delivery in person, and aement which has the form of a deed, companied the delivery with the but which is limited to take effect statement that the grantee should at the death of the grantor, either "take the deed; that he did not by its express terms or by the mode know when he would die;" and he of delivery. The early cases on said: "Here is the deed, this is this question are collated in the yours; take it and take care of it, lotes to Hunt v. Hunt, 7 Ann. Cas. and at my death the property will 188, and Ferris v. Neville, 89 Am. be yours.” Bt. Rep. 480. From the great The construction announced is in 7ealth of authorities thus gathered harmony with the above-stated adsnd analyzed, the general agree- judication, as well as with equity event of courts may be stated: (1) and justice.

ance.

In view of the circumstances at- deed, of provisions therein indicating

tending the trial an intention to postpone or limit the Appeal-denial of continu- and the character rights of the grantee until after the of the case, the

death of the grantor, is the subject of court did not abuse his discretion the annotation following SHAULL v. in overruling the motion for a con- SHAULL, post, 23; specifically, as tinuance.

to cases construing the instrument to Judgment affirmed.

pass a present interest notwithstand

ing the provision that it is to take efAll the Justices concur.

fect or operate at maker's death, see

subd. III. C, 2 (g) of that annotation; NOTE,

and as to cases where instruments em

ploying such language have been The effect on the validity and char- construed as a will, see subd. III. C, 2 acter of an instrument in form of a (e).

JULIA SIMPSON et al., Appts.,

V.
MONK HOUSTON MCGEE et al.

Mississippi Supreme Court-October, 1910.

(112 Miss. 344, 73 So. 55.) Deed - to take effect after death - effect.

A deed reciting that it is to take effect only after the death of grantor is testamentary in character and will not prevail against a subsequent deed by grantor, to take effect in præsenti.

[See note on this question beginning on page 23.]

.

APPEAL by defendants and cross complainants from a decree of the Chancery Court for Newton County (Tann, Ch.) in favor of plaintiffs in a suit for the cancelation of a deed. Reversed.

The facts are stated in the opinion of the court.

Messrs. Byrd & Byrd, for appel- property, and containing the follants:

lowing provision: “This to take The clause in the instrument, “This effect only after the death of said to take effect only after the death of the

Harriet Houston.” On the 17th day. said Harriet Houston," is testamentary

of October, 1904, Harriet executed i in character, and the instrument therefore cannot be upheld as a deed.

and delivered to Julia Simpson a Devlin, Deeds, 2d ed. 855c; Wall v.

regular deed to the same property Wall, 30 Miss. 91, 64 Am. Dec. 147;

Both of these instruments were ? Sartor v. Sartor, 39 Miss. 760; Cun- properly acknowledged, and th ningham v. Davis, 62 Miss. 366; Mc- first was filed for record in the of. Daniel v. Johns, 45 Miss. 632.

fice of the chancery clerk of New Mr. W. I. Munn for appellees. ton county on the 9th day of Apriß. 1,

Smith, Ch, J., delivered the opin- 1895, and the second on the 22d dale ion of the court:

of November, 1904. After the deatish On the 5th day of March, 1894, of Harriet, which occurred in 190m

5, Harriet Houston executed and de- Babe, Monk, and Lutie Houstche

in, livered to Babe, Monk, and Lutie appellees herein, filed a bill in ti

thi

he Houston an instrument in writing, court below, praying for the cancinin form a deed, conveying certain ation of the deed executed by Hul

el

ar

(112 Mi88. 344, 73 So. 55.) riet to Julia, and also of two deeds applied in Sartor v. Sartor, 39 Miss. of trust which Julia had given on 760, and Cunningham v. Davis, 62 the property. Julia, the trustee, Miss. 366, it must be held to be and beneficiaries in the deeds of testamentary in character, and trust given by her, who were made therefore not a deed. parties defendant to this bill, filed

Reversed, and decree here in acan answer and cross bill, praying cordance with the prayer of apfor the cancelation of appellees' pellants' cross bill. claim to the property. The decree was in accordance with the prayer

NOTE. of the original bill.

If the instrument executed by The effect on the validity and charHarriet, under which appellants acter of an instrument in form of a claim title to the land, is a deed, the deed, of provisions therein indicating decree of the court below is correct; an intention to postpone or limit the if it is not a deed, but is testamen- rights of the grantee until after the tary in character, the decree is er- death of the grantor, is the subject of roneous. It is clear from the lan- the annotation following SHAULL V. guage hereinbefore quoted from SHAULL, post, 23; specifically, as this instrument that it was the to cases holding that a provision that donor's intention that the instru- an instrument is to take effect or opDeed-to take

ment itself should erate at maker's death characterizes effect after not take effect, for the instrument as testamentary, see death-effect.

any purpose, until subd. III. c, 3 (e); as to cases construafter her death; consequently, under ing instruments employing such lanthe rule announced in Wall v. Wall, guage to pass a present interest, see 30 Miss. 91, 64 Am. Dec. 147, and subd. III. c, 2 (g).

MRS. NANNIE COX, Appt.,

V.
CHARLES M. REED.

Mississippi Supreme Court (Division A)-March 12, 1917.

(113 Miss. 488, 74 So. 330.) Deed to take effect at death effect.

1. A deed is made testamentary by a provision that it "shall take and be in effect on and after the death" of the grantor.

[See note on this question beginning on page 23.] Evidence - to explain writing. is plain and unambiguous, so that its

2. Parol evidence is not admissible meaning can be ascertained from readto show the intention of grantor as to

ing it. the character of an instrument which [See 10 R. C. L. 1063, 1064.]

APPEAL by complainant from a decree of the Chancery Court for Tippah County (McGowen, Ch.) in favor of defendant in a suit to have certain land sold for a division of the proceeds between the parties. Reversed.

The facts are stated in the opinion of the court. Messrs. Spight & Street, for appel- whole, the intention was that it should lant:

only have a future operation after Whatever may be the form of the in- death, it must be held to be a will. strument or the circumstances of its Wall v. Wall, 30 Miss. 96, 64 Am. Dec. execution and delivery, if, upon the 147; 13 Cyc. 521, subd. c; 8 R, C. L.