
    HALL vs. BRAGG.
    George Bragg made an instrument, in the form of a deed, which witnessed as follows: “That the said George Bragg, after his burial expenses and the payment of all just debts, in consideration of the love and affection which he has and bears to his said sons-in-law, J. T. Hall, and J. Jones, and son, T. Z. Bragg, hath given, granted and conveyed, and does, by those presents, give, grant and convey, unto ‘them’ all the property that he, the said Bragg, owns and is possessed of.” Held, that the instrmnet was a will, and not a deed.
    Caveat, in Madison Superior Court. Tried before Judge Thomas, March Term, 1859.
    At the trial upon the appeal, the following paper was propounded for record and probate as the last will and testament of Geore:e Brao-o'. deceased, viz :
    
      State of Georgia, 1 This indenture, made this, the Madison County. / 17th day of July, 1857, between Geo. Bragg, of the above State and county, of the one part, and Jeremiah T. Hall, son-in-law, of the same place, and Jefferson Jones, son-in-law, and'Thomas Z. Bragg, son, of the State of Mississippi, Newton county, of the other part, witnesseth, That the said George Bragg, after his burial expenses and the payment of all just debts, in consideration of the love and affection which he has and bears to his said sons-in-law, J. T. Hall and J. Jones, and son T. Z. Bragg, hath given, granted and conveyed, and does, by these presents, give, grant and convey, unto said J. T. Hall and J. Jones, sons-in-law,, and T. Z. Bragg, son, as aforesaid, and their heirs and assigns, all the property that he, the said George Bragg, owns and is possessed of at his death, except thirty dollars, which he gives to Lucy Parlee, the youngest child of Pamela Tucker; all the rest unto the said J. T. Hall and J. Jones, sons-in-law, and T. Z. Bragg, son, to have and to hold, and for their own use and benefit forever in fee simple.
    George Bragg, [seal.]
    Signed and sealed in the presence of Attest: Wilson P. Berryman. his William -|- Hall, mark. R. M. Brown. j
    
    After proving the execution of the paper by the subscriber’s witnesses, the propounder tendered it in evidence as the last will and testament of George Bragg, deceased. Counsel for caveatrix objected to the introduction of the paper, on the ground that it was not a will, but a deed, and as such, not the subject of record and probate in a court of Ordinary. The presiding judge sustaiued the objection and excluded the paper, and counsel for propounder excepted. The jury found for caveatrix, and counsel for propounder tendered their bill of exceptions, assigning as error said decision.
    T. M. Daniel, and G. Nasu, for plaintiff in error.
    Hester & Akerman, contra.
    
   By the Court.

Benning, J.,

delivering the opinion.

Was the paper a deed or a will ? The court below held that it was a deed, but we think that it was a will. If it was a paper that took effect, that passed, any interest, at the time of its execution, it was a deed; if it was a paper that did not take effect, that did not pass any interest, until the death of its author, it was a will. This may be assumed.

If the words, “ at his death,” be construed as relating to the words of gift, the paper is, clearly, a will. I give at my death, nothing passes till my death. This is clear. And those "words may be so construed. The sentence will readily admit the pause of a comma, before them, after “possessed of;” and the sentence, when read with that slight pause, will require the "words to be construed, as relating, not to “ owns and is possessed of,” but, to he “ hath given,” he “ does give.” The objection to this construction is, that it makes the words relate to words some distance off, when there are nearer words to which-they might relate. But this is, by no means, an insuperable objection. The English rule, that words the nearest to each other, in place, are the closest to each other in relation, is one often not true, and, therefore, one often to be disregarded in construction. The rule is not true in any case in which the application of the rule would render the sentence or expression absurd. Would the application of the rule in this case render the expression absurd ? Let us see. Turning the expression into the first person, for the sake of clearness, and reading the words, “ at his death,” as related to the nearest words, “ oiorts and is possessed of,” the expression will stand thus: I have given, and I do give, to Hall, Jones and Bragg, all the property which I, at my death, own and am possessed of. Own and am possessed of are in the present tense; consequently, they will admit before them the word now. Insert that word. The expression will then stand thus : I have given, and clo give, to Hall, Jones and Bragg, all the property which I, at my death, now own and am possessed of. And here we have a plain absurdity. Now, and at my death, are treated as synonymous. And it is- impossible that the present can be the future, or the future the present. Then, it would seem, that the application of the rule in this case would- render the expression absurd.

On the other hand, if we read the words, “ at his death,” as relating to the more distant words, the words of gift, we have an expression that is common in wills, and one that has a well understood meaning. I do, at my death, give all of my property to A. B. is a Mud of expression, common in wills, and, one having a meaning well understood. That meaning is, I give, to take effect at my death. This is the well understood meaning, although, it must be admitted, that the form of the expression is one not the best adapted to convey this meaning.

We rather think, then, that the rvords, “ at his death,” are to be construed rather as relating to the words of gift, than as relating to the words “ owns and is possessed of.” But concede that in this we are wrong, and that the reverse should be the construction, would that vary the result ? would that make the instrument a deed and not a will? Reversing the construction, the expression may take this form (the first person being again substituted for the third :) I have given, and I do give, to Hall, Jones and Bragg, all the property which I, at my death, own and am possessed of. Now, what is the intention indicated here ? Plainly this: That nothing whatever shall pass, till my death; and that, at my death, all the property, then remaining, shall pass. And this is the very essence of a will as contra-distinguished from a deed. In a deed, the intention is, that something shall immediately pass on the execution of the deed.

Even then, if we take the latter construction, the result, we think, must still be the same; namely, that the instrument must be considered a will, and not a deed.

Consequently, we think that the court below erred in excluding the instrument from the jury.

Judgment reversed and new trial granted.  