2 Ga. 31 | Ga. | 1847
By the Court.
delivering the opinion.
The facts disclosed in this record are ás follows. The plaintiff instituted suit in the Court below, for the recovery of two slaves, and, upon the trial, having proven a demand, tendered in evidence the following paper.
“ Georgia, Effingham County,
) j
19th June, in the year of our .Lord one thous- and eight hundred and twenty-six.
Know all men by these presents, that I William Womack, in consideration of natural love and affection for my son, Frederick Womack, I do give unto him the following property. Three hundred acres of land which I now live on, two negroes, .Will and Nancy, two horses, and the rest of my stock of hogs and cattle, together with my household furniture, after my death and the death of my wife, to have and to hold said property forever. ,
In witness whereof I have hereunto set my hand and seal, the day and year above written. William Womack, (l. s.)
Signed, sealed and delivered in presence of, &c.
Which paper was recorded in the office of Effingham Superior Court on the 26th June, 1826. The defendant’s counsel demurred to this evidence, upon the ground, that it was not a deed but a testamentary paper, and not being proven before the Court of Ordinary, could not be admitted to prove title in the plaintiff to the negroes in question. The Court sustained the demurrer and ruled out the paper. Whereupon the plaintiff submitted to a verdict for the defendant.
1. Because the Court erred in ruling out a deed offered in evidence by the plaintiff, from William Womack to Frederick Womack, dated 19th June, 1826, conveying the slaves in dispute.
2. Because the Court erred in construing said deed to be a will, or testamentary in its character, and requiring probate as a will, before it could be admitted in evidence.
3. Because the verdict was- contrary to law and evidence.
Having heard argument upon this rule, Judge Fleming refused a new trial. This refusal is the ground upon which the errors complained of are founded; and the bill of exceptions, and the assignment, make, as I understand them, two points, to wit.
1. The Court erred in ruling out the evidence in this, that under a statute of Georgia, passed 26th November, 1802, the Judges of the Superior Courts shall not, in any case whatever, withhold any grant, deed, or other document, from the jury, under which a party in a cause may claim title, except such evidence of title is- barred by the Act of Limitation.
2. The Court erred in deciding that the paper ruled out was testamentary in its character, and required to be proven before the Ordinary before it could be admitted in evidence — and not a deed. Such are the facts and the questions presented to this Court for determination.
Preliminary to the consideration of these points, I remark, that the last is presented in the bill and also in the assignment, in more than one form, yet in each variant phase embracing the real question as I have stated it. There is nothing said in the motion for a new trial about the Act of 1802. The question under that Act, is, however, made in the bill of exceptions, and although practically waived, by counsel for plaintiff in error declining to argue it, we think it expedient to consider it, because, sooner or later, we shall have it to do. We prefer now, so far as the authority of this Court can do it, to give to the diverse constructions of that Act, uniformity.
Statutes “ in pari materia” are to be construejl together. By this rule, in ascertaining the intention of the Legislature, we are to consider all other laws in force in Georgia, in relation to grants, deeds, and other documents, under which a party may claim title. If this Act be construed to mean, that any and all papers which purport to relate to the title of property which may be in issue before the Superior Courts, shall be admitted in evidence without regard to the legality of their execution, or to the character which they assume, then is the whole law of evidence as applicable to deeds, grants, and other documents, repealed—the title to all the property in the State insecure, and the Legislature convicted of doing a very absurd and ridiculous thing. Under such a construction, a deed must be admitted with or without attestation, sealing and delivery, and record; devises of real estate, with or without the neeesssary witnesses; testamentary papers as deeds, and deeds as testamentary papers, and forged instruments of every kind, equally with genuine instruments. We will not adopt this as the true construction. We believe that this law does not interfere with the rules of evidence, and it is still, as much as it was before its enactment, the duty of the Judges of the Superior Courts to withhold all deeds, grants and documents from the jury unless they are proven according to law. Nor does it inhibit them from determining upon the legal character and import of such papers as are claimed to be deeds and grants; their duties in this regard remaining as they were previous to 1802. In our judgment, the Legislature only designed to prevent the Judges from withholding from the jury, papers, whose legal character is admitted or adjudged by the Court, and whieh are duly proven; so that .the jury may be able to determine what, if any, evidence they
The word evidence in the last clause of the Act of 1802, affords a clue to the legislative intention. When they (the Legislature) speak of evidence of title, we arc judicially constrained to infer, that by evidence, they meant legal evidence. The evidence of title, in this clause of the statute refers to grants, deeds, and documents, in the preceding clause, and explains what kind of deeds, grants, and documents,the Legislature meant — that is, such grants, deeds, and documents, as the Court might hold tobe legal evidence of title. In our judgment, therefore, there is no error in the record on the first ground.
The fact that the paper under consideration is recorded does
Nor does the fact that this paper contains the formal requisites of a deed, or that it begins and ends with the technical phraseology of that instrument make it so. “ If, (in the language of Chancellor Harper, in Kinard vs. Kinard,) the only effect is to dispose of property after the maker’s death, it must operate as a will, or not at all.” In Habergham vs. Vincent, Buller J. in giving the opinion of the Court, holds, that an instrument in any form, whether a deed-poll, or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will. In one of the cases read before this Court and refered to by Buller J. in Habergham vs. Vincent, there were express words of immediate grant, but as upon the whole, the intention was to have a future operation after death, it was considered as a will. The intention of the maker as to the character of the estate, and as to the time when it is to take effect, wholly irrespective of the form of the instrument, is to be looked to in determining whether this paper be a deed or will. If the instrument has no effect until death, and that is upon the whole the intention of the maker, it is a will
The authorities in England and in our own country, have so settled the rule. 3 Hagg. 221; Carth. 38; West's Case, Moore 177; Audley's Case, Dyer 166 a; Greene vs. Proude, 1 Mod. 117; Finck, 195; 1 Peere Williams, 529; 8 Viner’s Ab. 45; 4 Eng. Ec. R. 108; 4 Hagg. R. 44; 2 Hagg. 554; Habergham vs. Vincent, 2 Vesey Jr., 230; 2 Baily S. C. R. 588; Kinard vs. Kinard; 1 Speers Eq. R. 256; Crawford vs. McElvy, 2 Speers R. 230; 1 McCord, 517; 1 Will. Ex’rs. 59. All the positions which we have thus far assumed, have been settled in South-Carolina by the concurring judgment of both the Chancery and Law Courts of Appeal; tribunals whose authority is equal to any in the Union.
This court does not doubt that a remainder of personal chattels, may be limited over, to take effect after the termination of a life estate, by deed, and without a trust. That question does not occur here. In case of such limitation, the conveyance takes effect confessedly in the life time of the grantor, and there can be no question about the testamentary character of the act—but here, as by the terms of the instrument, it takes effect only on the death of the maker, the question does necessarily arise as to its testamentary character — and if upon a fair construction of the paper it is a will, It cannot in any possibility be also a deed limiting a remainder after a life estate. I hold that to constitute a good limitation of personal chattels after a life estate, the estate or interest must rest presently with the execution of the deed. The grantor must part with the property in the thing conveyed at the time of executing his deed; that is one thing: to execute a paper
As to the Statute of Uses, we have only to say, that in its terms it applies alone to real property, and has not, so far as we are informed either in England or in this country, by analogical reasoning or otherwise, been extended to personal property. Should the Legislature authorise gifts of personal property by deed, to take effect after the death of the grantor, with such safeguards as would insure against frauds, I am free to admit that there would, in that event, be no well founded objection to them upon the score of public policy. Piad this Court the power, which we disclaim, to apply the Statute of Uses to personal property, we ought to hesitate before venturing to introduce a statute having its origin in feudal reasons, and prescribing a mode of conveyancing too subtle and indirect for the simplicity of our habits and the openness and uprightness of our institutions. Tho example of Lord Mansfield has been invoked to control tho action of this Court, who, seizing upon groat principles of justice or of policy, not embodied in the laws of England, engrafted them upon the jurisprudence of his country by judicial legislation. The age in which he lived was different from this age — the social condition of England, very different from ours — the science of law since that time has made wonderful progress, and more than all, the institutions under which wo live are republican—those under which he lived were monarchical; according to our system, the power to malee laws is expressly limited to the Legislature. Besides, Lord Mansfield was so great a man that his acts commanded approval on that account, where our®
Having laid down the rule for construing this paper, to
Admitting argumenti gratia, that this is a deed, what constitutes technically the premises ? We think the words “ I do give unto him the following property after my death and the death of my wife.” And what the habendum et tenenduml We think the words “to have and to hold the said property forever” Transposing the words, the maker clearly meant to say, after my death and the death of my wife I do give him, the following grroperty to have and to hold, fyc. The words “ after my death and the death of my wife.” are restrictive of the words “I do give unto him,” and obviously limit the gift to take effect after his death and the death of his wife and not before.
But it is said that this instrument does not wear the form of a will; it has not the technical requisites of a zuill, and therefore it is not a will. To which I reply, there is no prescribed form necessary to the validity of a will. It is a settled point, that the form of a paper does not affect its title to probate, provided it is the intention of the deceased that it should operate after his death. 1 Williams’ Exec. 59; 2 Hagg. 248; 2 Vesey, Jr. 231; 2 Hagg. 432; 3 Hagg. 220, 221; 3 Atk. 163; 1 McCord, 523.
Nor is the appointment of an executor necessary; without such appointment the will will be obligatory on him who has the administration. 1 Williams’ Exec. 7.
Chancellor Kent defines a will to be “a disposition of real and personal property, to take effect after the death of the testator.” 4 Kent 489. The Civil Law defines a will thus: “ Tesiamentum est voluntatis nostrce justa sententia de eo quod quis, post mortem suam, fieri velit.” Which definition is substantially adopted by Swinburn, Godolphinand Blackstone. Swinb. Pt. 1 S. 2; Godolph. Pt. 1 C. 1 S. 2 Black. 499. The essence of which is the declared intention of a man as to the disposition of his property at his death.
The only question remaining is this ; the paper being testamentary, was it properly rejected for the want of probate ? We think it was. The Inferior Court, sitting as a Court of Ordinary, by the constitution and laws of Georgia has original jurisdiction of the probate of wills. Constitution State of Geo. art. 3. sec. 6, Prince 910. Princes Dig. 239. 240.
When a Court of probate has jurisdiction, a Court of Common Law will not take notice of a will, as a title to personal property, till it has been proven; and when a will is required to be originally proven to the jury as documentary evidence of title, it is not permitted to be read, unless it bears the seal of the Ordinary, or some other mark of authentication — In England, nothing but the probate, or other proof tantamount thereto of the admission of the will in the Spiritual Court, is legal evidence of a will, in any question respecting personalty. In Rex vs. the inhabitants of Netherseal, Lord Kenyon holds the following language: “ Nothing but the probate or letters of administration with the will annexed are legal evidence of the will, in all questions respecting personalty.”
In Pinney vs. Pinney, Tenterden, C. J. remarks “Francis Pinney (who claimed as executor) could have no title as executor, unless the will was allowed by the Spiritual Court, and probate was obtained.” In the same case Bayley, J. says “ non constat that the will under which he (the plaintiff) claimed to be executor, is a valid will, unless it be allowed as such by the Spiritual Court.
Greenleaf Ev. sec. 518; 2 Doug. 707; 1 Stark. R. 343; Shunway vs. Holbrook, 1 Pick. 114; 2 Phil. Evid. 172 ; Gorton vs. Dyson, 1 B. & B. 221; Pinney vs. Pinney, 8 Barn. & Cres. 335; 1 Will. Ex’rs 172 ; Rex vs Netherseal, 4. T. R. 260.
Let the judgment of the Court below stand affirmed.