Gay v. Gay

32 S.E. 846, 108 Ga. 739, 1899 Ga. LEXIS 321

• Court: Supreme Court of Georgia
• Decided: March 17, 1899
• Status: Published

Opinion

Little, J.

1. It appearing that the question made in the cross-bill of exceptions is controlling upon the case as a whole, it has been first considered ; and inasmuch as the judgment therein is reversed, there is no occasion for determining the errors alleged in the main bill of exceptions. Cheshire v. Williams, 101 Ga. 814; Jordan v. Ga. So. Ry. Co., 105 Ga. 274; Hollis v. Lawton, 107 Ga. 105.

2. Upon the line of construction indicated by this court in White v. Hopkins, 80 Ga. 154, which has since been followed in Goff v. Davenport, 96 Ga. 423, and Guthrie v. Guthrie, 105 Ga. 86, the instrument under consideration in the present case was a deed and not a will. See Barnes v. Stephens, 107 Ga. 442.

Judgment reversed, on eross-bill of exceptions.

Main bill of exceptions dismissed. All the Justices concurring.

The instrument referred to was as follows: “State of Georgia, Emanuel County. This indenture made this the 16th day of July, in the year of our Lord one thousand, eight hundred and eighty-three, between Absalom Gay of the State and county aforesaid, of the one part, and Charles M. Gay, his son, of the same place, of the other part, wdtnesseth, that the said Absalom Gay, for and in consideration of the good will and affection which, he has and bears for his son Charles M. Gay, and for and in consideration of the settlement or payment of my just debts-after my decease, and for and in consideration of the support- or maintenance of Mary Ann Gay, his mother, during her natural life or widowhood, after deceased, I have given, granted, bargained and sold, at my death [the land in dispute, describing it], to have and to hold the aforesaid tract or lot of land at and after my death, together with all and singular the rights, members, and appurtenances to the same in any manner belonging, to him the said Charles M. Gay own proper use, benefit, and behoof, forever in .fee simple; and the said Absalom Gay, for himself, his heirs, executors, and administrators, the said bargained premises unto the said C. M. Gay, his heirs and assigns, will warrant and forever defend the right and title thereof against themselves and against the claims of all persons whatever. In witness whereof the said Absalom has hereunto set his hand and affixed his seal, the day and year above written. ws

Absalom X Gay.

mark.

“ Signed, sealed, and delivered in the presence of B. L. Johnson, Dave Cowart.”

P. W. Williams and Williams & Williams, for plaintiffs. Saffold & Mitchell, for defendant.