Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-102, and former O.C.G.A. § 53-2-41 are included in the annotations for this Code section.

Distinction between deed and will.

- A paper reciting: "I [the maker], being in good health and of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills by me at any time heretofore made," and containing an attestation clause reciting that the paper is "signed, sealed, published, and delivered by the" maker "as and for her last will and testament," and that the witnesses, four in number, have subscribed their names in the maker's presence and in the presence of each other, and which at the time of the paper's execution is delivered to the party for whose benefit the paper is made as the will of the maker, though the devising or granting clause may contain language appropriate to a deed in some respects, is not a deed, but is an instrument testamentary in character. Page v. Jones, 186 Ga. 485, 198 S.E. 63 (1938) (decided under former Code 1933, § 113-102).

When the owner of property transfers the property inter vivos to another person in trust, the disposition is not testamentary merely because the interest of the beneficiary does not take effect in enjoyment or possession before the death of the settler, or because in addition the settler reserves power to revoke or modify the trust; in such a case the trust is created in the lifetime of the settler and the mere fact that the settler can destroy the trust or alter the trust does not make the disposition testamentary, although if the trust were not to arise until the settler's death the intended trust would be testamentary. Wilder v. Howard, 188 Ga. 426, 4 S.E.2d 199 (1939) (decided under former Code 1933, § 113-102).

If an instrument in the form of a deed conveys an estate in praesenti, although the right of possession be postponed, the instrument 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, the instrument is testamentary in character and will not be upheld as a deed. Smith v. Thomas, 199 Ga. 396, 34 S.E.2d 278 (1945) (decided under former Code 1933, § 113-102).

If deed were testamentary in character, it would be of no effect, since it was not executed in the manner which would entitle it to probate as a will. Childs v. Mitchell, 204 Ga. 542, 50 S.E.2d 216 (1948) (decided under former Code 1933, § 113-102).

If the intention by the grantor is to convey a present estate, although possession be postponed until the death of the grantor, the instrument is a deed. Martin v. Smith, 211 Ga. 600, 87 S.E.2d 406 (1955) (decided under former Code 1933, § 113-102).

Deed containing this reservation: "This conveyance is made with the distinct reservation by the grantor that she retains for herself an exclusive control of all of said lands as long as she may live, and to have the right to use them as her own and as she sees fit, including the working and selling of timber during the remainder of her natural life," is a warranty deed, and not a will. Martin v. Smith, 211 Ga. 600, 87 S.E.2d 406 (1955) (decided under former Code 1933, § 113-102).

An instrument containing a reservation by a grantor, who reserved a life estate, of the right to dispose of the land that the grantor owned during the grantor's lifetime is a deed rather than an attempted will. The grantee received a vested remainder subject to divestment should the grantor dispose of the property. Harris v. Neely, 257 Ga. 361, 359 S.E.2d 885 (1987) (decided under former O.C.G.A. § 53-2-41).

Directed verdict denial proper.

- In a will contest action between a goddaughter and a first cousin, the trial court properly denied the challenging first cousin's motion for a directed verdict because the testimony of the goddaughter, viewed in her favor, supported the finding both that the testatrix intended the two documents at issue together to express her desired dispository scheme and that the two documents were presented together for attestation; thus, the evidence supported the jury's finding that the two documents together did in fact create a valid will. Lee v. Swain, 291 Ga. 799, 733 S.E.2d 726 (2012).

Cited in Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931); Caswell v. Caswell, 177 Ga. 153, 169 S.E. 748 (1933); Chance v. Buxton, 177 F.2d 297 (5th Cir. 1949); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Black v. Poole, 230 Ga. 129, 196 S.E.2d 20 (1973); Akin v. Patton, 235 Ga. 51, 218 S.E.2d 802 (1975); Thomas v. Jackson, 238 Ga. 90, 231 S.E.2d 50 (1976).

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 4, 5, 9 et seq., 19. 80 Am. Jur. 2d, Wills, §§ 849, 850.

C.J.S.

- 95 C.J.S., Wills, §§ 167 et seq., 176, 177, 831.

ALR.

- May instrument inter vivos operate also as a will, or part of will, 45 A.L.R. 843.

Delivery of deed to third person to be delivered to grantee after grantor's death, 52 A.L.R. 1222.

Letter as a will or codicil, 54 A.L.R. 917; 40 A.L.R.2d 698.

Notation on note or securities as a will or codicil, 62 A.L.R. 292.

Language of will excluding or restricting one as beneficiary, as excluding him from class to whom gift is made in another part of will, 80 A.L.R. 140.

Construction and application of provision of will expressly giving executor or trustee power to mortgage realty, 115 A.L.R. 1417.

Testamentary character of memorandum or other informal writing not testamentary on its face regarding ownership or disposition of specific personal property, 117 A.L.R. 1327.

Judgment based on construction of instrument as res judicata of its validity, 164 A.L.R. 873.

Term "proceeds" in will or other trust instrument as indicating intention as to whether assets are to constitute principal or income, 1 A.L.R.2d 194.

Admissibility of extrinsic evidence upon issue of testamentary intent, 21 A.L.R.2d 319.

Effect on validity and character of instrument in form of deed of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 31 A.L.R.2d 532.

Validity of will written on disconnected sheets, 38 A.L.R.2d 477.

Admissibility of testator's declarations upon issue of genuineness or due execution of purported will, 62 A.L.R.2d 855.

Authorization by trust instrument of investment of trust funds in nonlegal investments, 78 A.L.R.2d 7.

Effect of mistake of draftsman (other than testator) in drawing will, 90 A.L.R.2d 924.

Wills: bequest or devise referring to services to be rendered by donee to testator during latter's lifetime as absolute or conditional gift, 22 A.L.R.3d 771.

Wills: effect of gift to be disposed of "as already agreed" upon or the like, 85 A.L.R.3d 1181.

Payable-on-death savings account or certificate of deposit as will, 50 A.L.R.4th 272.

Adoption as precluding testamentary gift under natural relative's will, 71 A.L.R.4th 374.

Adopted child as within class named in testamentary gift, 36 A.L.R.5th 395.