150 Ga. 435 | Ga. | 1920
(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
Judgment reversed.