Ward v. Allen

28 Ga. 74 | Ga. | 1859

By the Court.

Benning, J.,

delivering the opinion.

Was the court below right in overruling the demurrer to the bill ? We think so.

The grounds of The demurrer were, 1st, that The bill bad no equity in it; 2d, that parol evidence was not admissible, to show what was intended by the instrument.

If an instrument, by mistake of its author, or his draftsman, does not speak bis mind, a court of equity will modify the instrument so as to make it speak bis mind. (Wyche and wife vs. Green, 16 Geo. Rep., 49.) And it will bear verbal evidence as to what his mind was.

It follows, then, that there was equity in this bill, if the bill states, that by mistake the instrument does not express what was the intention of Morris Harris, its author, and also states what that intention was.

And these statements the bill makes. It says, in substance, that the instrument is a will, and not a deed; and that a will was a thing that could not express the mind or intention of the author, Morris Harris; that bis intention was, to make a deed; and a deed by which he would reserve to himself the use of the property for his life, and convey the remainder in the property, to a trustee, for the separate use of his daughter, Mrs. Allen, for her life, and at her death, to her children. And the bill sets out the instrument. And it states that mistake was the cause why the instrument was thus made.

Now, if the bill is right in saying, that the instrument is a will, and not a deed, it is clear that the instrument does not speak what the bill states was the intention of Harris, its author; and therefore, it is clear that there was equity in the bill. I, myself, however, am very much inclined to think, that the instrument, as it stands, is a deed — that it is an instrument which conveys to Mrs. Allen and her children, a present right to the future enjoyment of the property — the enjoyment of it at the donor’s death; and by necessary implication, reserving to him all the other interest in the property; that is, reserving to him an estate in it for his life. But, even if it was a deed, and of this import, it would not egress what the bill states to have been the donor’s intention; the bill stating that intention to have been, to convey the remainder after the donor’s death, to Mrs. Allen, for her life, and at her death to her children. So that, even if the instrument be a deed, it needs reforming, if we take the statement of the bill as true, and consequently, even in that case, there is equity in the bill.

Judgment affirmed.