By the Court.
Nisbet, Judge,
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.
[42] Tho plaintiff moved then a rule Nisi for a new trial, upon- the following grounds, to wit.
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.
[1.] The Act of 1802 is in tho following words: “The Judges of the Superior Courts, shall not, in any case whatever, withhold any grant, deed, or other document, from the jury, under which any party in a cause may claim title, except such evidence of title as may be barred by the Act of Limitation.” Prince’s Digest, page 210. This Act is limited to (he Judges of the Superior Courts; [43] it is mandatory to them, and cannot, therefore, be applicable to tho Justices of the Inferior Courts. From this fact, and inasmuch as the Superior Courts alone have jurisdiction of titles to .land, it is argued that the Legislature intended it to apply only to such cases as involve the title to real estate. This construction, say counsel for the defendant, derives strength, from the fact that the words “grant and deed” are, in professional parlance, usually used to describe the evidence of title to real property. Whilst we believe that the Act of 1802 'does not extend to cases before the Inferior Courts for the reason stated, yet we are of the opinion that it does apply to all suits before the Superior Courts, involving the title to property, whether real or personal.
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 [44] afford of title. It may bo said, that in a country where the powers and duties of Judges and juries are so well understood and so precisely defined as they are in ours, such an act, with such a construction, was wholly unnecessary. This may be so. We can, however, well imagine that the Legislature believed it expedient to declare the law as to the power of the Judges in this matter, in order to prevent the possibility of their abuse. If the first construction be admitted, the act of 1802 is in conflict with all those Acts of the Legislature in relation to the execution and admission of deeds in evidence, passed both before and since its date. If the construction we now give to it be admitted, then it is in harmony with them. The Legislature have in frequent instances passed laws since the Act of 1802, directly at war with the construction first referred to; thus disclaiming that construction. See Prince Dig. 166; Acts 1837, 91 ; ibid 1839, 196 ; ibid 1841, 140; ibid 1845, 38.
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.
[2.] The able counsel who argued this cause for the plaintiff in error, contend, that the paper which was rejected by the Court is a deed, which passed a present property in and title to, the land and slaves named in it, to be enjoyed in futuro; that is, at the death of the grantor and his wife. The argument to support this view of it is in substance as follows. It contains all the formal requisites of a deed; it is an instrument in writing, signed, sealed, attested and delivered; it begins in the usual form and technical phraseology of a deed; it was the intention of the maker, that it should be a deed — he so understood it at the time of its execution, and intended that it should pass the interest in the property “ in preesentif with the use and enjoyment limited to commence at a future period, to wit, at the death of himself and his wife. That he intended the gift to be irrevocable —which intent is manifest in this, that early after its execution he caused it to be recorded, [45] thus giving notice to the world, that he had given the property to his son and thus also dispensing with the necessity of a delivery of it. That á remainder in a slave, without a trust, can be limited by deed, after the creation of a life estate, and if this can be done, there is no reason and no law to prevent a man from conveying-personal property by deed, reserving a life estate in himself, to take effect upon the determination of the life estate. That upon principle and by analogy to the Statute of Uses in England, by virtue of which a freehold may be limited to take effect after a life estate reserved in the grantor, the same thing can be done in this country as to personal property, particularly slaves. In other words, this paper may be construed to be a deed, with covenants to stand seised to uses. In England, say the learned counsel, this resort was had to avoid the necessity in freehold conveyances of livery of seisin, and inasmuch as actual possession is not necessary to convey personal property, therefore the principles and policy of the Statute of Uses may well apply to personal property. That there is no public policy in this country which conflicts with such a mode of conveying slaves, but on the contrary, the policy of our country is to enforce all bona fide contracts which a man may make not contravening the laws of the land, touching his property. That so fax as concerns the land named in the paper, it can never bo carried into effect as a will, because there are but two witnesses to it, the Statute of Frauds requiring three— if then, it cannot be available as a mil, the Court should give such construction to it as will make it available ; that is, construe it to be a deed, and thereby effectuate the intention of the grantor. Such, I believe, aro the positions of the plaintiff in error, stated I hope clearly, and certainly as favourably as the counsel themselves would state them. The argument on principle is strong, and it may not be denied that the authorities are, to some extent, conflicting upon some of these points. Much, however, of the argument might be addressed to the Legislature, rather than to this Court.
The fact that the paper under consideration is recorded does [3] not give it the character of a deed. Any and all such papers may be recorded, and it would restrict most fatally the range of constructive inquiry, to limit it to the registry. The record is notice to the world of what the paper is, and what it effects, but does not give it character.' It does not determine whether the paper be a deed, or testamentary in its character. It is evidence that the maker intended the gift to be irrevocable, but is not proof that it [46] takes effect immediately; it may be evidence that he considered the paper a deed, but his believing it to be a deed does not make it so. Whether he would call this paper a deed or a will, is one question; whether it shall operate in law as a deed or a will, is another question, and the question which the Court below and which this Court have been called upon to determine.
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.
[4.] Reserving the application of the rule to the case before us, for the present, I pass to a brief consideration of other grounds taken by the plaintiff’s counsel. It is true that the Courts will benignly construe a paper which cannot take effect as a deed, into a will, in order that the intention of the testator may prevail in. [47] cases where it is, according to law, a will. This position is fully recognised in the hooks. If the instrument is not a deed and at the same time not a will, the Courts will not violate the law and declare it to he either the one or the other; holding it far better^ that in the particular case the intention of the maker should be defeated, than that the general law should be violated. Thus, in this case, we hold that this paper is not a deed, and so as far as the personal property is concerned, that it is a good will — but because it is not a valid will of real estate, not being sufficiently attested, we will not declare it a deed — nor will we, as to the land, nullify the Statute of Frauds, and pronounce it a will. The intention cannot override the law. In Kinard vs. Kinard, the paper was attested, as here, by only two witnesses — it was held not to be a deed, and at the same time not good as a devise, and good as a testament. The Court declaring “it must be recollected that the policy of the law requires three witnesses to a disposition of a man’s estate, to take effect after his death, and we are bound to annul and defeat whatever contravenes that policy.” 2 Speers Eq. R. 263. If this paper was intended by the maker to have a testamentary effect, as we believe it was intended, then we are not at liberty to vary its character — what was intended to be revocable, we have no right to make irrevocable — we have no right to withdraw from the maker that power of other final disposition which he has reserved to himself, and to give to this paper a present energy and effectiveness, which in itself it does not possess. Dawson vs. Dawson, Rice Eq. R. 260.
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 [48] giving property to another, at his death, reserving a life estate and retaining the possession, is another thing. The former is a good limitation over of personalty—'the latter is the case before us. If, in tho case before us, the interest did in fact, as is argued, vest in the grantee, at the time the instrument was excuted, with a postponement oj the possession until a future day — why then, what is it? surely not a limitation — it is an out and out gift to the grantee. But, say counsel, if remainders may be limited upon personal chattels by deed — why may not an estate be conveyed in them by deed to take effect upon the death of the grantor ? The reply is found in the answer of the Court in Vernon vs. Inabnit, 2 Brevard, 414, to the same inquiry therein put; “to allow such gifts would bo mischievous in the consequences which would result to creditors and subsequent purchasers. Besides, cui bono, what necessity for such gifts, when the same effects may be produced and the same object attained by a last will and testament. ”
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® [49] would meet reprobation. We know that our duty is to administer, and not to make the law. We cannot hold this paper to be a deed of covenant to stand seised to uses.
Having laid down the rule for construing this paper, to [5.] wit, the intention of the maker as to the character of the estate to be conveyed, we come now to apply it. Before doing so we further remark, that the intention is to be ascertained, not from any one or more clauses of the instrument, but from a fair consideration of all, taken together. It is claimed that this was an absolute gift which took effect at the execution of the instrument, and that the use or enjoyment of the property, was postponed simply until after the death of the grantor and his wife; and if so, the instrument is not testamentary, but a deed. In different phraseology — the absolute property passed to the grantee eo instanti in which the deed was executed, notwithstanding the reservation of the two life estates. It will not be questioned that a verbal gift, unaccompanied with possession, is nothing more than a promise to give, not binding on the promissor. Reducing it to writing, as we hope to show, only makes the writing testamentary. Do the terms used in this instrument import the present transit of the interest in or title to the property named 1 The words I do give import an absolute present gift, and if they were not qualified and restricted by subsequent words, we admit, would leave the construction of the plaintiff in error unquestionable. The language of the instrument is as follows: “ Georgia, Effingham County, 19th day of June, in the year of our Lord one thousand eight hundred and twenty-six. Know all men that I, William Womack, in consideration of natural love and affection for my son Frederick Womack, I do give unto him the folloimng property (describing the property) after my death and the death of my wife, to have and to hold the said property forever. In witness whereof &c. ”
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. [50] What then did William Womack mean todo? He meant that, at his death and the death of his wife, the property described should belong to his son Frederick, and not before. Where then was the title of the property during his life ? It remained with him, the property itself was subject to his debts, to his alienation by deed, and this paper subject to revocation by subsequent testamentary disposition. What then is the character of the estate created ? We answer an estate for life in the wife of the testator, (shesursiving him) with remainder to his son Frederick, to take effect at his death; and if at the death of the testator, his wife be also dead, then an absolute gift to his son Frederick, to take effect at his death. It seems to be scarcely possible to believe that the testator could mean any thing else, or that it did at all enter into his mind that during his life he had, by this paper, parted with the right of dominion over his property. That he firmly resolved that this paper should operate as a gift at Ms death, is clear; and no doubt he did intend to put the enjoyment of this property by his son, at his death, beyond the chances of accident, fraud or oversight. It is sufficient for our puiposes however to know, that whatever else the maker did intend, he did certainly intend that this gift should not take effect until his death. And if he did so intend, then the paper is not a deed, but a testamentary paper.
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.
[51] It seems to this Court that the paper before us, fulfils all the requirements of either or all these definitions, and is testamentary-in its character.
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.