By the Court.
Benning, J.delivering the opinion.
Was the instrument offered in evidence as the deed of John Taylor, a deed, or a will ? The Court below held, that it was a will, so far as it related to the negroes sued for.
We think that it was not a will, but a deed, even as to those negroes. There were three negroes, Toby, Piety, and Mariah, besides other property mentioned in the instrument. The negroes sued for, are Piety and Eher children. Now as it concerned all this property, except Piety and Mariah, there is no question but that the instrument was a deed. We think that it was a deed also, as to P ie ty?a a d~Mar i a h.
Is it possible to suppose, that the author of this instrument intended it to be amphibious; to be both a will and a deed; a will as to Piety, and Mariah; a deed as to Toby and the ' other property? It may be possible, but, certainly, it is hardly probable.
The instrument is in form, a deed. It is an instrument that can operate as a deed; and can do so,not less as to Piety and Mariah, than, as' to Toby and the other property. There is no need, therefore, of holding it to be a will, ut res magis valeat quam pereat. Why then, should we by violence' done to any thing about it, to even its form, convert it info a will.
The instrument contains these words: “ Witnesseth, that the said John Taylor, for and in consideration of the natural love and affection which he has and bears to his said daughter, Sythia Meek, hath given, and granted, and conveyed, and does, by these presents, give, grant, and convey unto the said Sythia Meek, and all of her children,” “ the following prop erty, to-wit: My negro man, Toby, about -twenty-two years of age; and my negro woman Piety, about’eighteen' years of *496age, and my negro woman Mariah, about fourteen years of age, and one-fourth part of my stock of cattle,” &c.
Now, the effect of these words taken by themselves, must have been, to convey the title immediately out of John Taylor into Sythia Meek, and her children, so far as “Toby” and the “stock of cattle” were concerned. But if such was the effect as to Toby, and the stock of cattle, such must have been the effect as to “ Piety” and “Mariah.” The words are applicable to both of the parcels of property.
These words then, took the title, (that is, the whole interest) out of John Taylor, so far as Piety and Mariah were concerned, and put that title in Sythia Meek and her children.
The instrument also contains these subsequent words: “ The two negro girls, Piety and Mariah, which I have given to Sythia Meek, I am to have the use and control of during my life-time, and at my death to belong to said Sythia Meek, as aforesaid.”
Now, by these words, the maker of the instrument takes back some of the interest of Piety and Mariah, which he had given by the first words; but does he take it all back ? Certainly not. He takes back the use and control of Piety and Mariah, during his life; but the remainder, he leaves where the first words had carried it, viz: the whole interest, in Sythia Meek and her children.
Considering then the instrument as consisting of these two sets of words, its net effect in its operation upon Piety and Mariah, was to cause the remainder in the two, to pass out of Taylor into his daughter and her children 5 to do so immediately on the execution of the instrument, and, in her, and her children, ever afterwards to abide.
An instrument that can produce such an effect, cannot be a will, for a will is an instrument that can produce no effect,, until after the death of its author.
[1.] We think that this instrument was not a will:
In this opinion, we are supported by Robinson vs. Schley *497& Cooper 6. Ga. Rep. 516. Jackson and others vs. Culpepper, 3. Ga. R. 469, and perhaps, opposed by Symmes vs. Arnold and wife, 10. Ga. R. 506; and Crary vs. Rawlins, 8. Ga. R. 450. There are, however, some facts in the present case, which make it different from the two last cases. In the present the donor after saying, that he gives the whole of the property, says that he is to have an interest for his life in a part of the property. It is certain, therefore, that the instrument of conveyance is a deed as to apart of the property— that part in which there is no reservation of any interest. And it may be argued with more or less effect, that if words of conveyance, are words of a deed in reference to a part of the property which they convey, they are to be considered as words of a deed, in reference to the other part of the property which they convey.
In those two cases, respectively, the donor after saying that he gives the whole of the property, says that he reserves, to himself an interest for his life, in the whole of the property. It is no more certain, therefore, that the instrument of conveyance is a deed, as to one part of the property, than that it is as to another.
I must say, however, that I regard these two last mentioned cases, as being in conflict with the two first mentioned and that I go with the two first mentioned. See Watson vs. Watson, and Bunn vs. Bunn, decided at this term.
Considered as a deed, this instrument was admissible in evidence for the plaintiff.
Suppose then, the instrument to have been admitted in evidence, as it should have been, the first question will then be, whether the sayings of John Taylor, the author of the instrument were also admissible in evidence.
Some of those sayings were utterpd at the time when he made the instrument, and some afterwards : Of the latter, a part were uttered when he was in the possession of the property sued for; a part, when the plaintiffs were in the possession of that property. Á11 of the sayings were to the same *498effect, and that was, that he gave or had given, Piety to his daughter Sythia Meek, and her children, but that he reserved the use of Piety to himself for his life-time. That is to say, the sayings were such, that it was against the interest of Taylor to make them, and such, that they ran, not against, but with the written instrument. If then, Taylor had been the defendant, the sayings would have been admissible.
Taylor, however, was not the defendant: Holton, his son-in-law was the defendant. But Holton held under Taylor* We are authorized, prima facie, to say this. The evidence on the point, was, that John Taylor had the negroes in his possession at his old place; that he went to live with Holton, leaving the negroes behind him ; that some weeks afterwards, Holton and another person, came for the negroes, and carried them off; and that Taylor died a month or two after-wards. A presumption arises from all this, that Holton merely assumed Taylor’s place as to the negroes, on the death of Taylor, that is, that he had no title to them except one derived from Taylor, as an executor of his own wrong. If so, any sayings of Taylor, that were good against him, were good against Holton, for Holton held under Taylor, and by a title that must have been acquired, (if acquired as supposed, on the death of Taylor,) subsequently to the uttering of any sayings.
[2.] We think, therefore, that the sayings of Taylor were admissible.
Were the sayings of Holton, the defendant, also admissible.
We think so. They were clearly against his interest.
If the instrument had been admitted in evidence, these it is likely are the only questions that would have arisen, if these would. Many of the questions, which did arise, could not have arisen. It is useless, therefore, to take time to dispose of those questions.
There ought to be a new trial.
Judgment reversed.