Bunn v. Bunn , 22 Ga. 472 ( 1857 )

By the Court.

Benning J.

delivering the opinion.

Was the instrument made by Civility Bunn, a will, or a deed ? The Court below held that it was a will.

We think it was a deed. If it differs in any essential respect from the instrument in the case of Watson vs. Watson, decided at this Term, the difference does not make in favor of its being a will.

It is true, that in that instrument, the last clause was one which contemplated a division of the property in the lifetime of the author, as a possibility; but it is also true, that iin this instrument, the last clause is.a clause of warranty;

I. 'a clause of warranty is, perhaps, as incompatible with what is a will, as such a clause as that is.

Then, in this instrument there is a disposition made of land, and the instrument has but two witnesses to it To say that this instrument is a will therefore, is to say that it shall he void so far as this disposition is concerned. And if it be true, that we are at liberty to strain an instrument, when by straining it we can prevent it from being void, how much more true must it be, that we are not at liberty to strain an instrument, when by strainiug it we render it void.

Referring to Watson vs. Watson, decided at this term, we say, that we think, that the Court below erred in holding this - instrument to be a will.

A new trial, therefore, must take place.

Judgment reversed.