
    Gay, administrator, et al. v. Gay, and vice versa.
    
    Argued February 1,
    Decided March 17, 1899.
    Complaint for land. Before Judge Gamble. Emanuel superior court. April term, 1898.
    The action was by the administrator and certain heirs of Absalom Gay against Charles M. Gay. The defendant claimed title to the land in dispute, under an instrument which, when first offered in evidence; by him at the trial as a deed from Absalom Gay conveying title to the premises, was rejected by the court upon the ground that it was testamentary and was-not attested and probated as required by law. The court, however, permitted the defendant to introduce parol testimony to show that by the instrument in question the maker intended to convey title in presentí. There was a verdict for the defendant. The plaintiffs moved for a new trial, which was refused, and they brought the case to this court. The defendant filed a cross-bill of exceptions, assigning error upon the ruling first-mentioned.
   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.  