By the Court. —
Jenkins, J.,
delivering the opinion.
The judgment excepted to sustained the defendant’s demurrer to complainant’s bill. There is some discrepancy between the transcript of the record and the bill of exceptions, in the statement of the grounds of demurrer; we take them as presented by the bill of exceptions appearing at the close of the reporter’s statement.
There is in the bill a prayer for reformation of deeds attached as Exhibits A., B. & D.; a prayer that complainant may be confirmed in her legal and equitable title to the slaves in dispute, and a general prayer for relief.
The first and second grounds of demurrer, are directed against so much of the bill as seeks reformation of the deeds, and the remaining grounds against the general equity set up in it, and the relief sought under it.
The two first grounds are well taken, there being no sufficient averment either of fraud or mistake in the framing or in the execution of the deeds, nor any distinct statement of the reformation sought.
If, however, without any reformation of the deeds, complainant has made a case which entitles her to other relief asked, the bill should be retained, and defendant required to answer.
We, therefore, consider the other grounds of demurrer. The third ground is, that the papers exhibited are not in legal contemplation deeds, but are testamentary papers, and valueless as muniments of title for want of probate. The Court below sustained this ground, except as to exhibit A. The view of the Court, as to exhibits A. & B., treating the former as a deed, and the latter as a testamentary paper, we think was right.
1. We disagree with the learned Judge in ascribing to exhibit D., the character of a testament and not of a deed. This paper is so far technically framed that it contains a distinct granting clause, and also a habendum and tenendum. The granting clause, which is the most essential part, is expressed in language which most clearly imports a gift in pre[727]*727sentí, “I, Berry Johnson (upon the consideration stated), do give, grant and convey,” etc. And it is a grant or gift of a life estate to his wife, with remainder to her children. These words import a present, immediate vesting of the title. Doubtless the opinion of the Court below was predicated upon the phraseology used in the ihabendum, “to have and to hold the aforesaid property at my death, as above stated,” etc.
“Where, in 1842, the father of a married woman conveyed certain lands to her, hut his deed was not such as to prevent the marital rights of her husband from attaching, and where, subsequently, a disagreement and separation having taken place between the husband and wife, in order to induce her to return and cohabit with him, he, in 1815, made a dqed to her to this and other property, and thereupon she returned and lived with him, although such deed did not name any trustee, and was without any words settling the property for the sole and separate use of the wife, yet it was tlie evident intention of the parries to create a trust in lier favor, and from the time of the execution of the deed her possession became adverse to his, although he jointly occupied the land with her.” McQueen 1>. Fletcher, 77 Ga. 444, 447. And see Whitton v. Jenkins, 34 Ga. 397, 3Ó4.
[727]*727Now, either these words are consistent with the clearly expressed gift in presentí in the granting clause, or they are not. It is the duty of Courts to make them consist, if possible, without doing violence to law. By treating the first clause as a gift in presentí, passing the title at the moment of execution, and the second as a postponement of possession and enjoyment of the property, by the donees, until the death of the donor, they are made to consist. It is then the common case of a gift by deed, reserving a life estate in the donor. We see no difficulty in this construction; it is a familiar use of the the habendum to place limitations upon the estate conveyed by a prior granting clause. In conveyances in trust, where the legal title passes by the granting clause, it is by the habendum that the trusts, uses and limitations are declared, and the whole deed is sustained, because the two clauses are reconcilable.
But suppose that, in this case, the two are irreconcilable, which shall prevail? It is á well settled rule of law, that if there be an irreconcilable conflict between two clauses in a deed, the first shall prevail; it is regarded as first done and complete, and therefore beyond the power of the grantor. It is otherwise in a will, because, from the nature of the instrument, the last expression of testamentary intention must prevail. Had the grantor said, in fhe first clause, “I give, at my death,” or had he used any equivalent words, he would thus have manifested an intention to postpone the vesting of the property, the transfer of the title, until the happening of that event; and it is precisely that intention which impresses upon an instrument, whatever be its form, the testamentary character. But it is otherwise in this instrument.
Thus we arrive at the conclusion, that the instruments set forth, in exhibits A. and D., are deeds, and not wills; and it appears that they cover all the property in dispute.
Still, however, it is assumed, in the 4th and 5th grounds of demurrer, that, as deeds, they are void, because moving [728]*728from the husband to the wife. It was insisted, in the argument, that the husband could not convey directly to 'the wife. The idea is presented that even if a deed, from husband to wife could be considered as passing title, it would accomplish nothing, for the reason, that so soon as the title vested in the wife, the husband’s marital rights would attach, and the title at once revest in him. This is a strictly legal view of the subject. But there are equities, between husband and wife, which, though ignored by Courts of Law, are constantly recognized and supported in Courts of Equity. “A separate estate (in the wife) may exist without the intervention of a trustee. The husband will, in that case, take the legal estate, but equity will regard him as' trustee for the wife;” 12 Geo. Rep. 195. If equity so regard a conveyance, moving from a third person, why not, when the husband conveys directly to the wife, with intent, bona ñde, to confer a benefit on her, that the conveyance is a declaration of a trust, and hold him and his representatives bound by it? There is no conceivable reason why this should not be done, where, as in this case (according to the allegations in the bill), the property came to him through the wife, with an understanding that it should be her separate property.
That equity will often support a conveyance directly to a married woman, is well settled.
2. Story’s Equity Jurisprudence, §§1374-5-8 citing; 2 Stvanst, 106, 107; 1 Atkyns, 270, 271.
“The true intent of the parties will be carried into effect in equity without regard to form, and a contract is generally valid between husband and wife, without the intervention of a trustee.” 1 P. Wms. 125, 6 Id. 264; 2 Vernon, 689.
In the case before us, the-husband who executed the deeds under consideration, has departed this life.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court. —
Jenkins, J.,
delivering the opinion.
The judgment excepted to sustained the defendant’s demurrer to complainant’s bill. There is some discrepancy between the transcript of the record and the bill of exceptions, in the statement of the grounds of demurrer; we take them as presented by the bill of exceptions appearing at the close of the reporter’s statement.
There is in the bill a prayer for reformation of deeds attached as Exhibits A., B. & D.; a prayer that complainant may be confirmed in her legal and equitable title to the slaves in dispute, and a general prayer for relief.
The first and second grounds of demurrer, are directed against so much of the bill as seeks reformation of the deeds, and the remaining grounds against the general equity set up in it, and the relief sought under it.
The two first grounds are well taken, there being no sufficient averment either of fraud or mistake in the framing or in the execution of the deeds, nor any distinct statement of the reformation sought.
If, however, without any reformation of the deeds, complainant has made a case which entitles her to other relief asked, the bill should be retained, and defendant required to answer.
We, therefore, consider the other grounds of demurrer. The third ground is, that the papers exhibited are not in legal contemplation deeds, but are testamentary papers, and valueless as muniments of title for want of probate. The Court below sustained this ground, except as to exhibit A. The view of the Court, as to exhibits A. & B., treating the former as a deed, and the latter as a testamentary paper, we think was right.
1. We disagree with the learned Judge in ascribing to exhibit D., the character of a testament and not of a deed. This paper is so far technically framed that it contains a distinct granting clause, and also a habendum and tenendum. The granting clause, which is the most essential part, is expressed in language which most clearly imports a gift in pre[727]*727sentí, “I, Berry Johnson (upon the consideration stated), do give, grant and convey,” etc. And it is a grant or gift of a life estate to his wife, with remainder to her children. These words import a present, immediate vesting of the title. Doubtless the opinion of the Court below was predicated upon the phraseology used in the ihabendum, “to have and to hold the aforesaid property at my death, as above stated,” etc.
“Where, in 1842, the father of a married woman conveyed certain lands to her, hut his deed was not such as to prevent the marital rights of her husband from attaching, and where, subsequently, a disagreement and separation having taken place between the husband and wife, in order to induce her to return and cohabit with him, he, in 1815, made a dqed to her to this and other property, and thereupon she returned and lived with him, although such deed did not name any trustee, and was without any words settling the property for the sole and separate use of the wife, yet it was tlie evident intention of the parries to create a trust in lier favor, and from the time of the execution of the deed her possession became adverse to his, although he jointly occupied the land with her.” McQueen 1>. Fletcher, 77 Ga. 444, 447. And see Whitton v. Jenkins, 34 Ga. 397, 3Ó4.
[727]*727Now, either these words are consistent with the clearly expressed gift in presentí in the granting clause, or they are not. It is the duty of Courts to make them consist, if possible, without doing violence to law. By treating the first clause as a gift in presentí, passing the title at the moment of execution, and the second as a postponement of possession and enjoyment of the property, by the donees, until the death of the donor, they are made to consist. It is then the common case of a gift by deed, reserving a life estate in the donor. We see no difficulty in this construction; it is a familiar use of the the habendum to place limitations upon the estate conveyed by a prior granting clause. In conveyances in trust, where the legal title passes by the granting clause, it is by the habendum that the trusts, uses and limitations are declared, and the whole deed is sustained, because the two clauses are reconcilable.
But suppose that, in this case, the two are irreconcilable, which shall prevail? It is á well settled rule of law, that if there be an irreconcilable conflict between two clauses in a deed, the first shall prevail; it is regarded as first done and complete, and therefore beyond the power of the grantor. It is otherwise in a will, because, from the nature of the instrument, the last expression of testamentary intention must prevail. Had the grantor said, in fhe first clause, “I give, at my death,” or had he used any equivalent words, he would thus have manifested an intention to postpone the vesting of the property, the transfer of the title, until the happening of that event; and it is precisely that intention which impresses upon an instrument, whatever be its form, the testamentary character. But it is otherwise in this instrument.
Thus we arrive at the conclusion, that the instruments set forth, in exhibits A. and D., are deeds, and not wills; and it appears that they cover all the property in dispute.
Still, however, it is assumed, in the 4th and 5th grounds of demurrer, that, as deeds, they are void, because moving [728]*728from the husband to the wife. It was insisted, in the argument, that the husband could not convey directly to 'the wife. The idea is presented that even if a deed, from husband to wife could be considered as passing title, it would accomplish nothing, for the reason, that so soon as the title vested in the wife, the husband’s marital rights would attach, and the title at once revest in him. This is a strictly legal view of the subject. But there are equities, between husband and wife, which, though ignored by Courts of Law, are constantly recognized and supported in Courts of Equity. “A separate estate (in the wife) may exist without the intervention of a trustee. The husband will, in that case, take the legal estate, but equity will regard him as' trustee for the wife;” 12 Geo. Rep. 195. If equity so regard a conveyance, moving from a third person, why not, when the husband conveys directly to the wife, with intent, bona ñde, to confer a benefit on her, that the conveyance is a declaration of a trust, and hold him and his representatives bound by it? There is no conceivable reason why this should not be done, where, as in this case (according to the allegations in the bill), the property came to him through the wife, with an understanding that it should be her separate property.
That equity will often support a conveyance directly to a married woman, is well settled.
2. Story’s Equity Jurisprudence, §§1374-5-8 citing; 2 Stvanst, 106, 107; 1 Atkyns, 270, 271.
“The true intent of the parties will be carried into effect in equity without regard to form, and a contract is generally valid between husband and wife, without the intervention of a trustee.” 1 P. Wms. 125, 6 Id. 264; 2 Vernon, 689.
In the case before us, the-husband who executed the deeds under consideration, has departed this life.
The surviving wife is the mother of ten or eleven children, the fruit of her marriage with him. They take an interest in remainder under one of the deeds. The property came to him through her, from her mother and her brother, and he received it with the understanding that it should be secured to her, and always treated it as her separate property. She is in possession of it, and has been since his death, in April, 1856.
It does not appear that the rights of creditors are at all involved. But the administrator de bonis non, of the husband, [729]*729is endeavoring to recover the slaves conveyed in the deeds, attached as Exhibits A. & D., and their increase. Such is the case made in the bill, and we are of opinion that the demurrer should have been overruled, and the defendant required to answer, and, therefore, reverse the judgment.
TRUST CREATED IN HUSBAND FOR WIFE. “A deed was executed in 1861 by an administrator, for land purchased at his sale, reciting that J. B., as trustee for his wife, M. B., was the highest bidder. It then acknowledges the receipt of the purchase money from J. B., trustee foi M. B., and conveyed the land to J. B., trustee for M. B., his successors in office and assigns: Held, that the deed having been made by an administrator to the husband and accepted by him, a separate estate in the wife was thereby created, although there were no special words in the deed to that effect.” Brown v. Kimbrough, 51 Ga. 35 (1), 38.
“Prior to 1866 a deed to a married woman was ineffectual to pass title into her; but where such a deed was made either by the husband or by a third party, and the evident intent of the parties was that the property should be the separate estate of the wife, although the title never passed into the wife, or, if passing into her, immediately passed to the husband, he was deemed in equity, although the holder of the legal title, the trustee for the wife. Phelps 1?. Brooks, 12 Ga. 195; Johnson v. Hines, 31 Ga. 720, 728; McQueen v. Fletcher, 77 Ga. 444; Follendore v. Follendore, 110 Ga. 359, 362.” Webb v. Harris, 124 Ga. 726.
JUDGMENT.
Whereupon, it is adjudged by the Court, that the judgment of the Court below be reversed upon the ground that the Court erred in sustaining the demurrer, and dismissing the bill; this Court holding that the third instrument in the order of time, from defendant’s intestate to plaintiff in error, as exhibited to said bill, is a deed, and not a testamentary paper, and that complainant took a separate estate under the first and last deeds as exhibited in which equity will protect her.