Jackson v. Culpepper

3 Ga. 569 | Ga. | 1847

By the Court.

Warner, J.,

delivering the opinion.

The only question presented by the record in this case for our consideration and judgment is, whether the paper writing offered in evidence by the plaintiff in the Court below, is a deed or a will.

The Court below ruled that the paper writing was not a [1.] deed of conveyance, but testamentary iu its character, and rejected the evidence; to which decision of the Court below, the plaintiff excepted, and now assigns the same for error in this Court.

What is a will? A will is defined to be the legal declaration of a man’s intentions, which he willg to be performed after his death. 2 Black. Com. 499.

Was it the intention of the donor John W. Jackson, manifested by the instrument itself, that it should not take effect until after his death ? We think not, for the reason, that a present interest in the negroes was conveyed by the donor and vested in the trustee for the uses and objects declared by the instrument.

The donor conveys to the trustee Lewis Jackson, three negroes, in trust, for and in consideration of the natural love and affection which he had for his daughter-in-law Mary Jackson, and her natural increase then begotten and which thereafter might be born. The conveyance of the property to Lewis Jackson in trust, is as unqualified and absolute as words can make it; and the donor John W. Jackson, covenants to warrant and defend the title to the negroes so conveyed by him, against the claim of himself and the claim of all other persons. The donor then declares the uses and the objects for which the property has been conveyed to the trustee.

The trustee is to have and to hold the negroes and their increase, for the sole use and benefit of Mary Jackson and her increase, and not to be subject to his debts or contracts, the donor reserving to himself a lifetime control and interest in the negroes. The fee simple title to the negroes vested in the trustee at the time of the execution of the deed by the donor, for the sole use and benefit of Mary Jackson and her increase, to be enjoyed by them after the termination of the life estate of the donor. The donor would have been estopped in his lifetime, by his covenant contained in the deed, from asserting in himself the fee simple title to the property conveyed to the trustee. The instrument of writing mentioned in the record, was, in our judgment, operative and binding on the donor in his lifetime, to pass the fee simple title to the property from himself to the trustee, and vested the same in him for the uses and purposes of the trust as declared by the instrument. The fee simple title to the property irrevocably passed out of the donor, which totally forbids the idea of its being a will, for a will is ambulatory until the death of the testator. This case is supposed by the Court below to come within the principle of the decision in Hester vs. Young, 2 Kelly R. 41. In that case, the donor William Womack, gave the property to his son, after his death, and the instrument was wholly inoperative until the death of the donor.

In this case, the donor in his lifetime absolutely conveys the title to the property, with a covenant of warranty, to the trustee, declaring the uses and objects of the trusts, one of which is, that the donor shall have the use and control of the property during his life, the fee simple title to the negroes being vested in the trustee, for the sole use of Mary Jackson and her increase. In Hester vs. Young, nothing passed from the donor to the donee in the lifetime of the donor, but the title in the donee was to take effect after the death of the donor. The two cases are in our judgment clearly distinguishable. In the one, a present interest in the property is conveyed by the donor to the trustee for certain declared and specified objects ; the vesting of the paramount title to the negroes in the trustee, does not depend on the death of the donor for its consummation; the property is not given to the trustee after the death of the donor. In Hester vs. Young, the instrument was entirely inoperative during the life of the donor, it was ambulatory and revocable by him, whereas the donor in this case would have been estopped in his lifetime from asserting the paramount title to the property in himself; the only interest which he had in the property was reserved and declared in the trust deed to Jackson the trustee. The fee simple title to the negroes vested in the trustee, as we have already stated, subject to be enjoyed by Mary Jackson and her increase, upon the termination of the life estate of the donor. The absolute title of the trustee to the property, was not in any way effected by-the death of the donor, for the reason that its validity by the terms of the instrument, was not made to depend on that event.

[2.] To constitute this instrument a testamentary paper, its effect must be made to depend upon the event of the death, of the donor as necessary to consummate it, which in our judgment it does not. In Glynn vs. Oglander, 4 Eng. Eccl. R. 181, Sir John Nicholl says: “ Courts of probate have gone considerable lengths to give effect to instruments as testamentary, notwithstanding their form, where the intention that they should take effect upon death has been manifest. But I do not recollect a case (and the learned counsel in support of the allegation admits that he is not able to point out one,) where a paper not made to depend on that event as necessary to give it consummation, has been admitted to probate.” The instrument offered in evidence by the plaintiff in the Court below, not being testamentary in its character, for the reasons already stated, we are therefore of the opinion that the Court erred in its judgment in so ruling, and in nonsuiting the plaintiff. Let the judgment of the Court below be reversed, and the cause reinstated.

Judgment reversed.