AMERICAN ΑΝΝΟΤΑΤED JOHN W. COLLIER, Admr., etc., of H. J. Collier, Deceased, Plff. in Err., V. ORA LEE CARTER et al. Georgia Supreme Court-February 15, 1917. (146 Ga. 476, 91 S. E. 551.) Deed to take effect at death effect. 1. Where an instrument in the form of and attested as a deed contains a clause that it is "to go into effect at the" signer's death, and where there is no other indication as to the intention of the signer, and the paper is duly delivered, it will be construed to be a deed postponing possession. [See note on this question beginning on page 23.] Appeal - denial of continuance. 2. In view of the circumstances attending the trial and the character of the case, the court did not abuse his Headnotes by GILBERT, J. discretion in overruling the motion for a continuance. [See 6 R. C. L. 549.] ERROR to the Superior Court for Echols County (Thomas, J.) to review a judgment in favor of plaintiffs, and overruling a motion for new trial, in an action brought to recover possession of certain land. Affirmed. Statement by Gilbert, J.: Ora Lee Carter and Mrs. Jennie Bell Carter brought an action of ejectment against John W. Collier, individually, and as administrator of the estate of H. J. Collier, deceased. The verdict was for the 11 A.L.R.-1. plaintiffs. The defendant moved for a new trial, which was refused, and he excepted. Upon the trial the plaintiffs introduced in evidence a warranty deed from H. J. Collier to Ora Lee Carter and Mrs. Jennie Bell Carter, dated March 9, 1911, conveying the land in dispute. Among other things, the deed stipulated that it was "to go into effect at the said H. J. Collier's death." Two of the attesting witnesses swore that they witnessed the deed at the request of the grantor, and that the justice of the peace who witnessed the instrument died afterward. It appeared that about March 9, 1911, H. J. Collier went to the home of the husband of one of the plaintiffs, and while there delivered the deed to Mrs. Jennie Bell Carter, one of the plaintiffs, telling her, at the time of delivery, to take the deed; that he did not know when he would die; and he said: "Here is the deed; this is yours; take it and take care of it, and at my death the property will be yours." She retained possession of this deed continuously to the time of the trial. The defendant, John W. Collier, testified as follows: "I do not recognize that as H. J. Collier's signature; it is not his signature, to the best of my knowledge." This was the entire evidence for the defendant. Messrs. J. W. Haygood and Eldridge Cutts, for plaintiff in error: Where the evidence is not contradicted as to the illness of counsel and his inability to attend, and as to his being the leading counsel, it is an abuse of discretion, or rather the court has no discretion, but must grant a contin uance. Bagwell v. State, 56 Ga. 406; Thompson v. Hays, 119 Ga. 167, 45 S. E. 970; Waxelbaum Co. v. Atlantic Coast Line R. Co. 3 Ga. App. 396, 59 S. E. 1129. Mr. J. Munroe Bussell also for plaintiff in error. Messrs. J. G. Cranford and E. Κ. Wilcox, for defendants in error: The instrument in question is a deed conveying title in præsenti, with the right of possession postponed till after the death of the grantor. West v. Wright, 115 Ga. 277, 41 S. E. 602; Isler v. Griffin, 134 Ga. 192, 67 S. E. 854; Brice v. Sheffield, 118 Ga. 128, 44 S. E. 843; Griffith v. Douglas, 120 Ga. 582, 48 S. E. 129. The continuance of cases because of the absence of counsel is not favored. Cotton States L. Ins. Co. v. Edwards, 74 Ga. 220; Poppell v. State, 71 Ga. 276; Wright v. State, 18 Ga. 383. A continuance on account of the absence of counsel is largely discretionary. Loyd v. State, 45 Ga. 72; Whitley v. Clegg, 120 Ga. 1040, 48 S. E. 406; Cooper v. Jones, 24 Ga. 474. Gilbert, J., delivered the opinion of the court: The decisive question in this case is whether the instrument quoted in the statement of facts shall be construed as a deed or as a will. Was it intended to pass title to the property in præsenti, with the right of possession postponed, or was it to be purely posthumous in its operation? Under, the previous rulings of this court, as well as the great weight of modern authority in other jurisdictions, we think it clear that the instrument is a deed, with the right of possession postponed until the death of the grantor. The tendency of the earlier decision was to construe instruments as testamentary where the maker's intent appeared in any way to vest title after his death, without regard to the form of the instrument. Later a more liberal rule was followed toward giving to the instrument a construction which would accord with the intention of the signer, and which would uphold its validity. Seals v. Pierce, 83 Ga. 787, 20 Am. St. Rep. 344, 10 S. E. 589; Wynn v. Wynn, 112 Ga. 214, 37 S. E. 378; West v. Wright, 115 Ga. 277, 41 S. E. 602; Brice v. Sheffield, 118 Ga. 128, 44 S. E. 843; Griffith v. Douglas, 120 Ga. 582, 48 S. E. 129; Isler v. Griffin, 134 Ga. 192, 67 S. E. 854; Hughes v. Hughes, 135 Ga. 468, 69 S. E. 818; Pruett v. Cowsart, 136 Ga. 756, 72 S. E. 30; Mays v. Fletcher, 137 Ga. 27, 72 S. E. 408. The instruments in no two of the cases just cited are identical, nor is the instrument in any one of them identical with the instrument in the present case. They are all sufficiently similar to establish the principle already enunciated as the ruling on the instrument construed herein. That in the case of West v. Wright, 115 Ga. 277, 41 S. E. 602, is a substantial duplicate of the one now under consideration. At least, it presents no material point of difference in the clause under differentiation. In the case of Isler v. Griffin, 134 Ga. 192, 67 S. E. 854, the writing recited that it was to take effect not only after the death of the maker, but also "from and after the death of my father and mother, and not until then." This was held to be a deed although possession was postponed to the contingency of the maker's death, and also to the death of the father and mother. (146 Ga. 476, 91 S. E. 551.) In Phillips v. Phillips, 186 Ala. 545, 65 So. 49, Ann. Cas. 1916D, 994, the instrument construed contained the language, "This deed not to take effect until after my death," and it was held to be a deed. Somerville, J., said: "Courts have undertaken in innumerable cases to prescribe the general tests by which the character of an instrument in this regard is to be determined; but, while there seems to be a substantial uniformity of opinion as to the general principles to be applied, the cases themselves exhibit the utmost contrariety in the particular conclusion reached, even in the same jurisdictions." In the opinion many cases are cited to sustain the rule, and in the notes appended thereto in Ann. Cas. 1916D, 994, recent cases in many states are cited and discussed, dealing with the rules of law applicable to the construction of an instrument which has the form of a deed, but which is limited to take effect at the death of the grantor, either by its express terms or by the mode of delivery. The early cases on this question are collated in the notes to Hunt v. Hunt, 7 Ann. Cas. 88, and Ferris v. Neville, 89 Am. St. Rep. 480. From the great wealth of authorities thus gathered snd analyzed, the general agree@ient of courts may be stated: (1) An instrument which is in the form of a deed, to take effect on the death of a maker, where there are no other indicia to prove the intention of the grantor, and the instrument can be held valid either as a deed or as a will, the court will construe the instrument so as to prevent its becoming inoperative. (2) Whether such an instrument is to be construed as a deed or a will depends upon the intention of the grantor as to the passing of a present irrevocable interest, or whether no interest should pass until after the death of the grantor, and whether the grantor, until then, should have the right to revoke the instrument. (3) The intention of the maker of the instrument is to be ascertained from the whole, construed together. (4) Looking to extraneous facts, the delivery of the instrument is some evidence that the same shall operate as a deed, although its terms provide that possession is postponed until after the death of the maker. effect. The instrument in the present case is in the form of a warranty deed. It is attested by two witnesses and by an officer authorized in express terms of the law to witness deeds. A will, to be valid, need not be witnessed by such an officer. This instrument was delivered on or about the date Deed-to take of its execution, effect at deathand has remained thereafter in the possession of one of the grantees. Looking further to extraneous evidence, one of the witnesses swore that the grantor made the delivery in person, and accompanied the delivery with the statement that the grantee should "take the deed; that he did not know when he would die;" and he said: "Here is the deed; this is yours; take it and take care of it, and at my death the property will be yours." The construction announced is in harmony with the above-stated adjudication, as well as with equity and justice. as deed, of provisions therein indicating an intention to postpone or limit the rights of the grantee until after the death of the grantor, is the subject of the annotation following SHAULL v. SHAULL, post, 23; specifically, to cases construing the instrument to pass a present interest notwithstanding the provision that it is to take effect or operate at maker's death, see subd. III. c, 2 (g) of that annotation; and as to cases where instruments employing such language have been construed as a will, see subd. III. c, 2 (e). JULIA SIMPSON et al., Appts., V. MONK HOUSTON MCGEE et al. Mississippi Supreme Court-October, 1916. (112 Miss. 344, 73 So. 55.) Deed - to take effect after death - effect. A deed reciting that it is to take effect only after the death of grantor is testamentary in character and will not prevail against a subsequent deed by grantor, to take effect in præsenti. [See note on this question beginning on page 23.] APPEAL by defendants and cross complainants from a decree of the Chancery Court for Newton County (Tann, Ch.) in favor of plaintiffs in a suit for the cancelation of a deed. Reversed. The facts are stated in the opinion Messrs. Byrd & Byrd, for appellants: The clause in the instrument, "This to take effect only after the death of the said Harriet Houston," is testamentary in character, and the instrument therefore cannot be upheld as a deed. Devlin, Deeds, 2d ed. § 855c; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Sartor v. Sartor, 39 Miss. 760; Cunningham v. Davis, 62 Miss. 366; McDaniel v. Johns, 45 Miss. 632. Mr. W. I. Munn for appellees. Smith, Ch, J., delivered the opin ion of the court: On the 5th day of March, 1894, Harriet Houston executed and delivered to Babe, Monk, and Lutie Houston an instrument in writing, in form a deed, conveying certain of the court. property, and containing the following provision: "This to take effect only after the death of said Harriet Houston." On the 17th day. of October, 1904, Harriet executed | and delivered to Julia Simpson a regular deed to the same property Both of these instruments were properly acknowledged, and the first was filed for record in the of fice of the chancery clerk of New ton county on the 9th day of Apri3. 1, 1895, and the second on the 22d date y of November, 1904. After the deat's h of Harriet, which occurred in 190m 5, Babe, Monk, and Lutie Houstonen, appellees herein, filed a bill in thi he court below, praying for the cancin-elation of the deed executed by Hul-ar (112 Miss. 344, 73 So. 55.) riet to Julia, and also of two deeds of trust which Julia had given on the property. Julia, the trustee, and beneficiaries in the deeds of trust given by her, who were made parties defendant to this bill, filed an answer and cross bill, praying for the cancelation of appellees' claim to the property. The decree was in accordance with the prayer of the original bill. If the instrument executed by Harriet, under which appellants claim title to the land, is a deed, the decree of the court below is correct; if it is not a deed, but is testamentary in character, the decree is erroneous. It is clear from the language hereinbefore quoted from this instrument that it was the donor's intention that the instrument itself should not take effect, for Deed-to take effect after death-effect. any purpose, until after her death; consequently, under the rule announced in Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147, and applied in Sartor v. Sartor, 39 Miss. 760, and Cunningham v. Davis, 62 Miss. 366, it must be held to be testamentary in character, and therefore not a deed. Reversed, and decree here in accordance with the prayer of appellants' cross bill. NOTE. as The effect on the validity and character of an instrument in form of a deed, of provisions therein indicating an intention to postpone or limit the rights of the grantee until after the death of the grantor, is the subject of the annotation following SHAULL v. SHAULL, post, 23; specifically, to cases holding that a provision that an instrument is to take effect or operate at maker's death characterizes the instrument as testamentary, see subd. III. c, 3 (e); as to cases construing instruments employing such language to pass a present interest, see subd. III. c, 2 (g). MRS. NANNIE COX, Appt., v. CHARLES M. REED. Mississippi Supreme Court (Division A)-March 12, 1917. (113 Miss. 488, 74 So. 330.) זי 1. A deed is made testamentary by a provision that it "shall take and be in effect on and after the death" of the grantor. [See note on this question beginning on page 23.] Evidence to explain writing. 2. Parol evidence is not admissible to show the intention of grantor as to the character of an instrument which is plain and unambiguous, so that its meaning can be ascertained from reading it. [See 10 R. C. L. 1063, 1064.] APPEAL by complainant from a decree of the Chancery Court for Tippah County (McGowen, Ch.) in favor of defendant in a suit to have certain land sold for a division of the proceeds between the parties. Reversed. The facts are stated in the opinion of the court. Messrs. Spight & Street, for appellant: Whatever may be the form of the instrument or the circumstances of its execution and delivery, if, upon the whole, the intention was that it should only have a future operation after death, it must be held to be a will. Wall v. Wall, 30 Miss. 96, 64 Am. Dec. 147; 13 Cyc. 521, subd. c; 8 R. C. L. |