28 Ga. 330 | Ga. | 1859
By the Court.
delivering the opinion.
Was the paper a deed or a will ? The court below held that it was a deed, but we think that it was a will. If it was a paper that took effect, that passed, any interest, at the time of its execution, it was a deed; if it was a paper that did not take effect, that did not pass any interest, until the death of its author, it was a will. This may be assumed.
If the words, “ at his death,” be construed as relating to the words of gift, the paper is, clearly, a will. I give at my death, nothing passes till my death. This is clear. And those "words may be so construed. The sentence will readily admit the pause of a comma, before them, after “possessed of;” and the sentence, when read with that slight pause, will require the "words to be construed, as relating, not to “ owns and is possessed of,” but, to he “ hath given,” he “ does give.” The objection to this construction is, that it makes the words relate to words some distance off, when there are nearer words to which-they might relate. But this is, by no means, an insuperable objection. The English rule, that words the nearest to each other, in place, are the closest to each other in relation, is one often not true, and, therefore, one often to be disregarded in construction. The rule is not true in any case in which the application of the rule would render the sentence or expression absurd. Would the application of the rule in this case render the expression absurd ? Let us see. Turning the expression into the first person, for the sake of clearness, and reading the words, “ at his
On the other hand, if we read the words, “ at his death,” as relating to the more distant words, the words of gift, we have an expression that is common in wills, and one that has a well understood meaning. I do, at my death, give all of my property to A. B. is a Mud of expression, common in wills, and, one having a meaning well understood. That meaning is, I give, to take effect at my death. This is the well understood meaning, although, it must be admitted, that the form of the expression is one not the best adapted to convey this meaning.
We rather think, then, that the rvords, “ at his death,” are to be construed rather as relating to the words of gift, than as relating to the words “ owns and is possessed of.” But concede that in this we are wrong, and that the reverse should be the construction, would that vary the result ? would that make the instrument a deed and not a will? Reversing the construction, the expression may take this form (the first person being again substituted for the third :) I have given, and I do give, to Hall, Jones and Bragg, all the property which I, at my death, own and am possessed of. Now, what is the intention indicated here ? Plainly this: That nothing whatever shall
Even then, if we take the latter construction, the result, we think, must still be the same; namely, that the instrument must be considered a will, and not a deed.
Consequently, we think that the court below erred in excluding the instrument from the jury.
Judgment reversed and new trial granted.
