Opinion
24085.
ARGUED MAY 9, 1967.
DECIDED MAY 18, 1967.
Declaratory judgment. Fulton Superior Court. Before Judge Pye.
Smith, Crisp Hargrove, William E. Smith, Dorsey, Dorsey Strother, John R. Strother, Jr., for appellant.
Lewis Hansen, Candler, Cox, McClain Andrews, George C. Mitchell, for appellees.
The instrument in the form of a deed but reciting that ownership should remain in the grantor until his death, and that the property should not vest in the grantee until the grantor's death and "at the death of said grantor, then this deed and conveyance shall legally vest to the grantees," is testamentary in character and is not a deed.
ARGUED MAY 9, 1967 — DECIDED MAY 18, 1967.
This is a declaratory judgment case involving title to land. The petitioner brought this action alleging an actual controversy between the parties as to the ownership and title to the land therein set out, setting out an executed document in the form of a warranty deed and praying for a declaration of the rights of the parties thereunder and that said rights be declared that the document in question is testamentary in nature and that title vests in the ward of the petitioner. An answer and cross action was filed to the suit by one of the alleged grantees in the deed claiming a one-half undivided interest in the land and alleging mismanagement by the guardian of the ward's estate and praying for the appointment of a receiver and for injunctive relief. The court also appointed a guardian ad litem for the ward who intervened, and after a hearing, the court construed the instrument to be a deed conveying the legal title in fee to the grantees but reserving a life estate to the grantor, petitioner's ward. The construction by the court amounted to a final judgment declaring the rights of the parties under the instrument although the cross action remains for further action by the court. The error enumerated is on the interpretation by the court that the instrument is a deed passing title in praesenti with a reservation of a life estate by the maker.
The single question for our decision is whether an instrument in the form of a deed is a deed as the trial court ruled or whether it is testamentary in character and is consequently not a deed. As pointed out in Smith v. Thomas, 199 Ga. 396 ( 34 S.E.2d 278), this court in Patellis v. Tanner, 197 Ga. 471 ( 29 S.E.2d 419), listed many decisions of this court where the instrument dealt with was construed to be testamentary in character and hence not a deed, and then listed many decisions where the instrument dealt with was a deed. Then we said at page 399 of the Smith case, supra, that "all the decisions of this court without exception give full recognition to the correct legal rule applicable in all such cases, to wit: that, if the instrument in the form of a deed conveys an estate in praesenti, although the right of possession be postponed, it is a deed; but, if the instrument conveys no present estate or right, but is an attempt to convey an estate or right in the property upon the death of the grantor, it is testamentary in character and will not be upheld as a deed." Application of the foregoing rule of law to the facts of this case requires a ruling that the instrument here involved is testamentary in character and is therefore not a deed.
Although in the form of a deed and reciting a consideration as well as that the land is "granted, bargained, sold and conveyed," it proceeds in three different ways to say that title will not pass until the death of the grantor, as follows: (1) "the grantor shall retain ownership and control of this property for the duration and balance of her natural lifetime," (2) "this property shall not vest to the named grantees until the death of said grantor," and (3) "at the death of said grantor, then this deed and conveyance shall legally vest to the grantees." Where as here the instrument plainly and repeatedly states that the title shall not vest in the grantees until the grantor's death, no court can correctly hold that title vested in the grantee when the instrument was executed. The above quoted rule of law is binding upon the courts of this State, and it plainly requires that in order for the instrument to be a deed it must convey "an estate in praesenti," and that if it attempts to convey an estate upon the death of the grantor it is testamentary and not a deed. Accordingly, we hold that it was error to construe the instrument here involved to be a deed.
Judgment reversed. All the Justices concur.