96 Ga. 423 | Ga. | 1895
An execution from a judgment of September 4th, 1893, against John Goff', was levied on certain land, which was claimed by Mrs. Ruthy Goff'. The property was found subject, and the claimant excepted to the ruling of the court, which was to the effect that the instrument dated January 9th, 1885, in which William E. Goff was grantor, and John Goff was grantee, was a deed and not a will, and that it was not so far ambigu
“State of Geoi’gia, Washington County. This indenture made this the 9th day of January in the year of our Lord one thousand eight hundred and eighty-five, between William E. Goff, of the State of Georgia and County of Washington, of the one part, and John Goff, of the same place, of the other part, witnesseth, that the said William E. Goff, for and in consideration of the sum of two thousand two hundred dollars to him in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted and bargained, sold and conveyed, and by these presents doth grant, bargain, sell and convey unto him the said John Goff, his heirs, executors, administrators and assigns, all that tract or parcel of land situate, lying and being in the County of Washington, State aforesaid, on the waters of the Ohoopie creek, ■containing one hundred, thirty-one and one half acres of land, more or less, it being a part of a tract of land known as. the Kincher W. Massey, deceased, land, adjoining S. H. B. Massey on the west, S. H. B. Massey on the north, Alexander Goff on the south and others. To have and to hold said tract of land unto him said William E. Goff, his heirs and assigns, together with all the stock and household and kitchen- furniture, with all the implements that may be on the premises, together with any other property that may be on the place at the said William E. Goff’s and Ruthy Goff’s his wife’s death, to the same in any manner belonging, to him and their own proper use, benefit and behoof, forever in fee simple. And the said William E. Goff, for himself, his heirs, executors and administrators, the bargained premises to the said John Goff, his heirs and assigns, will warrant and forever defend the right and title against themselves, and against the claims of all other persons whomsoever.*425 In witness whereof, the said William E. Goff hath hereunto set his hand and affixed his seal the day and year above written. William E. Goff.
Signed, sealed and delivered in presence of L. G. Davis, W. P. Davis, J. P.”
The question involved in this case turns upon the construction which will be placed upon the paper, a copy of which is set forth above, and whether it shall be held to be testamentary in its character, or a deed to take effect in presentí, with enjoyment and possession postponed until the happening of a future event. We have little difficulty in reaching the conclusion that the paper is a deed and not a will. It is in the form of a deed, expressly upon a valuable consideration,and executed in accordance with the provisions of the law touching the execution of deeds. In matter of form then, it is a deed, and we think a close examination of it will disclose that it is in substance a deed. It conveys to John Goff the fee to this property, but postpones until after the grantor’s death and the death of his wife, Ruthy Goff, the possession of the estate conveyed. We think this is the manifest intention, clearly though not artistically expressed. It was the evident purpose of this grantor to reserve to himself and his wife during their natural lives, and to the survivor of them, the right to the enjoyment of this property with remainder over to John Goff. The conclusion that this was the grantor’s intention is supported by the fact that, though the deed was made for some time before that event transpired, the grantor until his death actually remained upon and in possession off the premises conveyed. Supported by this circumstance alone, we have no difficulty in arriving at the conclusion that after the death of William E. Goff, his wife Ruthy Goff was entitled to retain the possession of the property, under the reservation expressed in the deed, until her death. Until that event