1. Persons Bass, the maker of the deed, filed the bill in his lifetime, to cancel it. His representative, who is made a party complainant; offered in evidence at the trial the will of Bass, for the purpose of sustaining the charges contained in the bill, and to obtain the decree prayed for. The court rejected the will as evidence, and we think it was properly re*536jected. The case of Nathan C. Munroe, executor, vs. N. C. and George G. Napier, decided at the present term, liad precisely the question in it that is involved in this point, and a similar •decision was made in that case as is rendered in this. To rule the contrary would be to set up that a party to a cause may, by his declarations, if made by a will, procure a judgment to which he otherwise might not be entitled. See the reasons given in the decision of Munroe vs. Napiers, supra.
2. The terms of conveyance used in the instrument sought to be set aside are the technical terms of a deed. The fact that the grantor reserved to himself and wife “the use and control of the land for and during our natural lives,” did not make the instrument testamentary: 3 Kelly, 460; 6 Georgia, 515, and numerous other decisions by this court.
3. It is claimed that the court erred in permitting the defendants to swear to their answers after the parties announced ready — especially as discovery was waived. This could not have damaged the complainant when the court charged the jury that the answers were not evidence, and could only be read-as pleadings.
4. It is further complained that there was error in the charge of the court as to the interest which the wife and child of the grantee took in the land. The grantee was dead, and his administrator was a party. Tt was a matter totally irrelevant to the issue as to that question, and whether the court was right or wrong, does not affect the case, and could not have controlled' the finding. For the court added to the ehai’ge what was the correct rule of law as to the evidence required, whether the administrator or the wife and child had been parties. The exception is on an immaterial point, and we cannot see how injury could result from the charge.
5. On a review of the case we cannot say that the verdict was contrary to the evidence, so as to make the refusal of the •court to grant a new trial an abuse of discretion.
Judgment affirmed.